EN BANC of making more definite the boundaries of such congressional State, which is not allowed without its consent.
such congressional State, which is not allowed without its consent."9 The second would
G.R. No. L-21064 February 18, 1970
J.M. TUASON and CO., INC., petitioner-appellee,
vs.
THE LAND TENURE ADMINISTRATION, THE SOLICITOR GENERAL
and THE AUDITOR GENERAL, respondents-appellants.
Araneta, Mendoza and Papa for petitioner-appellee.
Office of the Solicitor General and M. B. Pablo for respondents
appellants.
FERNANDO, J.:
In this special civil action for prohibition to nullify a legislative act
directing the expropriation of the Tatalon Estate, Quezon City, 1 this
Court is called upon to inquire further into how far the power of
Congress under the constitution to authorize upon payment of just
compensation the expropriation of lands to be subdivided into small
lots and conveyed at cost to individuals2 may extend, the more so as
this is the first time the judiciary is confronted with such a challenge
addressed to the validity of a statute specifically made applicable to
a particular piece of land, owned by petitioner J. M. Tuason & Co. In
the leading case of Guido v. Rural Progress,3 decided in 1949. this
Court in passing upon the scope of the power of the President
conferred by statute "to acquire private lands or any interest
therein, through purchase or expropriation, and to subdivide the
same into home lots or small farms for resale at reasonable prices
and under such conditions as he may fix to their bona fide tenants
or occupants"4 had occasion to delineate the contours of the above
constitutional provision, reconciling the undoubtedly broad grant of
constitutional authority to Congress with the right of property that
might be adversely affected by its exercise.
The prevailing opinion in the later case Republic v. Baylosis5 tilted
the balance in favor of property. In deciding this suit, filed with the
Court of First Instance of Quezon City, the lower court, as was
understandable, bowed to what it considered the compulsion such
an opinion carries and being unable to perceive any relevant ground
for distinction, declared the challenged statute invalid. The
respondents, the Land Tenure Administration, the Solicitor General
and the Auditor General in this prohibition proceeding, appealed.
We are possessed undoubtedly of greater discretion on the matter.
Nor is it to be lost sight of, as abovementioned, that this is the first
controversy where the expropriation of a particular property
authorized by Congress under the above constitutional provision is
assailed as beyond its power. The opportunity is thus here present
competence.
As will hereafter be explained with some measure of fullness, we
cannot affix the stamp of approval to the judgment of the lower
court; we reach a different conclusion. There is to our mind no
sufficient showing of the unconstitutionality of the challenged act.
We reverse.
On August 3, 1959, Republic Act No. 2616 took effect without
executive approval. It is therein provided: "The expropriation of the
Tatalon Estate in Quezon City jointly owned by the J. M. Tuason and
Company, Inc., Gregorio Araneta and Company, Inc., and Florencio
Deudor, et al., is hereby authorized."6 As noted in the appealed
decision:
The lands involved in this action, to which Republic
Act No. 2616 refer and which constitute a certain
portion of the Sta. Mesa Heights Subdivision, have
a total area of about 109 hectares and are covered
by Transfer Certificates of Title Nos. 42774 and
49235 of the Registry of Deeds of Rizal (Quezon
City) registered in the name of petitioner.7
Thereafter, on November 15, 1960, respondent Land Tenure
Administration was directed by the then Executive Secretary to
institute the proceeding for the expropriation of the Tatalon Estate.
Not losing any time, petitioner J.M. Tuason & Co., Inc. filed before
the lower court on November 17, 1960 a special action for
prohibition with preliminary injunction against respondents praying
that the above act be declared unconstitutional, seeking in the
meanwhile a preliminary injunction to restrain respondents from
instituting such expropriation proceeding, thereafter to be made
permanent after trial. The next day, on November 18, 1960, the
lower court granted the prayer for the preliminary injunction upon
the filing of a P20,000.00 bond. After trial, the lower court
promulgated its decision on January 10, 1963 holding that Republic
Act No. 2616 as amended is unconstitutional and granting the writ
of prohibition prayed for.
Hence this appeal by respondents, one we find meritorious. With
the problem thus laid bare and with an exposition of the
constitutional principles that compel a result different from that
arrived at by the lower court, we cannot accept its holding that the
statute thus assailed should be annulled.
1. Respondents would interpose two procedural bars sufficient in
their opinion to preclude the lower court from passing on the
question of validity.8 The first is the allegation that in effect this
special proceeding for prohibition is "actually a suit against the
require, on the assumption that the suit could proceed, that the
Executive Secretary, as the real party in interest, ought to have been
impleaded. Neither objection suffices to preclude the lower court
from passing upon the question of validity of the statute in
question.
As was held by this Court in the leading case of Angara v. Electoral
Commission, 10 speaking through Justice Laurel, the power of judicial
review is granted, if not expressly, at least by clear implication from
the relevant provisions of the
Constitution. 11 This power may be exercised when the party
adversely affected by either a legislative or executive act, or a
municipal ordinance for that matter, files the appropriate suit to
test its validity. The special civil action of prohibition has been relied
upon precisely to restrain the enforcement of what is alleged to be
an unconstitutional statute. 12 As it is a fundamental postulate that
the Constitution as the supreme law is binding on all governmental
agencies, failure to observe the limitations found therein furnishes a
sufficient ground for a declaration of the nullity of the governmental
measure challenged. The argument then that the government is the
adverse party and that therefore must consent to its being sued
certainly is far from persuasive. Moreover, it is equally well-settled
that for the purpose of thus obtaining a judicial declaration of
nullity, it is enough if the respondents or defendants named be the
government officials who would give operation and effect to official
action allegedly tainted with unconstitutionality. As it cannot be
denied that in 1959 the then Land Tenure Administration as well as
the Solicitor General were called upon to enforce the statute now
assailed, it would appear clear that the existence on the Executive
Secretary being made a party lacks support in law.
It would be then to set aside and disregard doctrines of
unimpeachable authority if the plea of respondents on these
procedural points raised were to meet an affirmative response. That
we are not disposed to do.
2. Thus we reach the merits. It would appear, as noted at the outset,
that for the purpose of deciding the question of validity squarely
raised, a further inquiry into the scope of the constitutional power
of Congress to authorize the expropriation of lands to be subdivided
into small lots and conveyed at cost to individuals 13 is indicated, if
for no other purpose than to attain a greater degree of clarity. The
question is one then of constitutional construction. It is well to recall
fundamentals. The primary task is one of ascertaining and thereafter
assuring the realization of the purpose of the framers and of the
people in the adoption of the Constitution. 14
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we
begin. It is to be assumed that the words in which 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 case the significance thus attached to
them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it
should ever be present in the people's consciousness, its language
as much as possible should be understood in the sense they have in
common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the
people mean what they say. Thus there are cases where the need
for construction is reduced to a minimum.
This is one of them. It does not admit of doubt that the
congressional power thus conferred is far from limited. It is left to
the legislative will to determine what lands may be expropriated so
that they could be subdivided for resale to those in need of them.
Nor can it be doubted either that as to when such authority may be
exercised is purely for Congress to decide. Its discretion on the
matter is not to be interfered with. The language employed is not
swathed in obscurity. The recognition of the broad congressional
competence is undeniable. The judiciary in the discharge of its task
to enforce constitutional commands and prohibitions is denied the
prerogative of curtailing its well-nigh all-embracing sweep.
Reference to the historical basis of this provision as reflected in the
proceedings of the Constitutional Convention, two of the extrinsic
aids to construction along with the contemporaneous
understanding and the consideration of the consequences that flow
from the interpretation under consideration, yields additional light
on the matter. The opinion of Justice Tuason, in the Guido case did
precisely that. It cited the speech of delegate Miguel Cuaderno,
who, in speaking of large estates and trusts in perpetuity, stated:
"There has been an impairment of public tranquility, and to be sure
a continuous impairment of it, because of the existence of these
conflicts. In our folklore the oppression and exploitation of the
tenants are vividly referred to; their sufferings at the hand of the
landlords are emotionally pictured in our drama; and even in the
native movies and talkies of today, this theme of economic slavery
has been touched upon. In official documents these same conflicts
are narrated and exhaustively explained as a threat to social order
and
stability." 15 He invoked likewise what happened to the family of our
national hero Jose Rizal: "But we should go to Rizal for inspiration
and illumination in this problem of the conflicts between landlords
and tenants. The national hero and his family were persecuted
because of these same conflicts in Calamba, and Rizal himself met a
martyr's death because of his exposal of the cause of the tenant
class, because he would not close his eyes to oppression and
persecution with his own people as victims." 16 Delegate Cuaderno
closed with this appeal: "If we are to be true to our trust, if it is our
purpose in drafting our constitution to insure domestic tranquility
and to provide for the well-being of our people, we cannot, we must
not fail to prohibit the ownership of large estates, to make it the
duty of the government to break up existing large estates, and to
provide for their acquisition by purchase or through expropriation
and sale to their occupants, as has been provided in the
Constitutions of Mexico and Jugoslavia." 17
The above address was delivered during the early days of the
convention on August 21, 1934. 18 Subsequently, the day before the
above constitutional provision was voted on January 29, 1935 he
reiterated what was said by him in the above address. Thus: "Mr.
President, this will be my last speech in the Convention. And I just
want to remind the Convention of the first speech that I delivered —
the first speech I delivered before this Assembly. I believe, Mr.
President, that one of the best provisions that this draft of the
Constitution contains is this provision that will prevent the
repetition of the history of misery, of trials and tribulations of the
poor tenants throughout the length and breadth of the Philippine
Islands." 19
This is not to say that such an appeal to history as disclosed by what
could be accepted as the pronouncement that did influence the
delegates to vote for such a grant of power could be utilized to
restrict the scope thereof, considering the language employed. For
what could be expropriated are "lands," not "landed estates." It is
well to recall what Justice Laurel would impress on us, "historical
discussion while valuable is not necessarily decisive." 20It is easy to
understand why.
The social and economic conditions are not static. They change with
the times. To identify the text of a written constitution with the
circumstances that inspired its inclusion may render it incapable of
being responsive to future needs. Precisely, it is assumed to be one
of the virtues of a written constitution that it suffices to govern the
life of the people not only at the time of its framing but far into the
indefinite future. It is not to be considered as so lacking in flexibility
and suppleness that it may be a bar to measures, novel and
unorthodox, as they may appear to some, but nonetheless
imperatively called for. Otherwise it might expose itself to the risk of
inability to survive in the face of complexities that time may bring in
its wake.
It would thus be devoid of the character of permanency, which is
the distinguishing mark of a constitution. Such was the conclusion
deliberately arrived at after extensive discussion in the
Constitutional Convention that the Constitution as adopted in 1935
would be good not only for the Commonwealth but for the
Republic, with all the vicissitudes that time and circumstance would
bring. Our people in signifying their adherence to the Constitution at
the plebiscite thereafter held were of a similar persuasion.
The continuing life of a constitution was stressed by one of the chief
architects of the Constitution, Manuel A. Roxas, later to be the first
President of the Republic. For him it is "the essence of such an
instrument." 21 It was his view that the constitution to be adopted
by the Constitutional Convention of 1934 would "have an indefinite
life, will be permanent, subject of course, to revisions, amendments
and other changes that may be adopted constitutionally." 22 That
would be an assurance that constitutional guarantees "will be
maintained, property rights will be safeguarded and individual rights
maintained immaculate and sanctified. ..." 23 Another prominent
delegate, Gregorio Perfecto, later a member of this Tribunal, aptly
noted that the transitory character is essentially incompatible with
the nature of laws, and necessarily so of a constitution, which is the
supreme law of a people and therefore must be impressed with
such attribute of permanency, much more than ordinary statutes
passed under its authority. 24
It could thus be said of our Constitution as of the United States
Constitution, to borrow from Chief Justice Marshall's
pronouncement in M'Culloch v. Maryland 25 that it is "intended to
endure for ages to come and consequently, to be adapted to the
various crisis of human affairs." It cannot be looked upon as other
than, in the language of another American jurist, Chief Justice Stone,
"a continuing instrument of government." 26 Its framers were not
visionaries, toying with speculations or theories, but men of affairs,
at home in statecraft, laying down the foundations of a government
which can make effective and operative all the powers conferred or
assumed, with the corresponding restrictions to secure individual
rights and, anticipating, subject to the limitations of human
foresight, the problems that events to come in the distant days
ahead will bring. Thus a constitution, to quote from Justice Cardozo,
"state or ought to state not rules for the passing hour, but principles
for an expanding future." 27
To that primordial intent, all else is subordinated. Our Constitution,
any constitution, is not to be construed narrowly or pedantically, for
the prescriptions therein contained, to paraphrase Justice Holmes,
are not mathematical formulas having their essence in their form,
but are organic living institutions, the significance of which is vital
nor formal. There must be an awareness, as with Justice Brandeis,
not only of what has been, but of what may be. The words
employed by it are not to be construed to yield fixed and rigid
answers but as impressed with the necessary attributes of flexibility
and accommodation to enable them to meet adequately whatever
problems the future has in store. It is not, in brief, a printed finality
but a dynamic process.
3. The conclusion is difficult to resist that the text of the
constitutional provision in question, its historical background as
noted in pronouncements in the Constitutional Convention and the
inexonerable need for the Constitution to have the capacity for
growth and ever be adaptable to changing social and economic
conditions all argue against its restrictive construction. Such an
approach was reflected succinctly in the dissenting opinion of
Justice J.B.L. Reyes, concurred in by the present Chief Justice, in the
Baylosis case. We find it persuasive.
His dissenting opinion opens thus: "I am constrained to dissent from
the opinion of the majority. The reasons set forth by it against the
validity of the proposed expropriation strike me as arguments
against the expropriation policies adopted by the government
rather than reasons against the existence and application of the
condemnation power in the present case." 28 Then he stated: "The
propriety of exercising the power of eminent domain under Article
XIII, section 4 of our Constitution can not be determined on a purely
quantitative or area basis. Not only does the constitutional provision
speak of lands instead of landed estates, but I see no cogent reason
why the government, in its quest for social justice and peace, should
exclusively devote attention to conflicts of large proportions,
involving a considerable number of individuals, and eschew small
controversies and wait until they grow into a major problem before
taking remedial action." 29
As to the role of the courts in the appraisal of the congressional
implementation of such a power, he had this to say: "The
Constitution considered the small individual land tenure to be so
important to the maintenance of peace and order and to the
promotion of progress and the general welfare that it not only
provided for the expropriation and subdivision of lands but also
opened the way for the limitation of private landholdings (Art. XIII,
section 3). It is not for this Court to judge the worth of these and
other social and economic policies expressed by the Constitution;
our duty is to conform to such policies and not to block their
realization." 30
The above dissent, as well as that penned by the then Chief Justice
Paras with whom the then Justice Pablo was in agreement, with
Justice Alex Reyes writing a concurring opinion, resulted in that the
main opinion of Justice Montemayor, while prevailing, failed to elicit
the necessary majority vote of six. If for that reason alone re-
examination would not appear to be inappropriate. Moreover, it
could not be considered as controlling the present suit, in view of
the fact that the exercise of the congressional authority to
expropriate land was not direct as in this case but carried out in
pursuance of the statutory authority conferred on the President
under Commonwealth Act No. 539.
The absence of any controlling force of such prevailing opinion can
likewise be predicated on facts which would differentiate the
present situation from that found in the Baylosis case. Thus Justice
Montemayor noted: "The evidence shows that both Sinclair and
Cirilo P. Baylosis at one time were willing to sell to some of the
tenants and occupants herein involved under certain conditions and
provided that they buy in groups, presumably to avoid subdivisions
and the problem of dealing with many individual buyers, but the
tenants failed to buy. Naturally, they may not now compel Sinclair
and Cirilo P. Baylosis to sell to them through the Government by
means of expropriation. Besides, the bulk of the lands that Sinclair
and Cirilo P. Baylosis had formerly offered to them for sale which
offer they failed to take advantage of, has now been sold to others,
the other co-defendants herein, in small lots." 31 Likewise, it was
noted by him: "There is another point that merits consideration. The
defendants claim and correctly that many of the tenants and
occupants now insisting on expropriation have lands of their
own." 32
The more fundamental reason though why we find ourselves unable
to yield deference to such opinion of Justice Montemayor, well-
written and tightly-reasoned as it is, is its undue stress on property
rights. It thus appears then that it failed to take into account the
greater awareness exhibited by the framers of our Constitution of
the social forces at work when they drafted the fundamental law. To
be more specific, they were seriously concerned with the grave
problems of inequality of wealth, with its highly divisive tendency,
resulting in the generous scope accorded the police power and
eminent domain prerogatives of the state, even if the exercise
thereof would cover terrain previously thought of as beyond state
control, to promote social justice and the general welfare.
This is not to say of course that property rights are disregarded. This
is merely to emphasize that the philosophy of our Constitution
embodying as it does what Justice Laurel referred to as its
"nationalistic and socialist traits discoverable upon even a sudden
dip into a variety of [its] provisions" although not extending as far as
the "destruction or annihilation" of the rights to property, 33 negates
the postulate which at one time reigned supreme in American
constitutional law as to their well-nigh inviolable character. This is
not so under our Constitution, which rejects the doctrine of laissez
faire with its abhorrence for the least interference with the
autonomy supposed to be enjoyed by the property owner. Laissez
faire, as Justice Malcolm pointed out as far back as 1919, did not
take too firm a foothold in our jurisprudence. 34 Our Constitution is
much more explicit. There is no room for it for Laissez faire. So
Justice Laurel affirmed not only in the above opinion but in another
concurring opinion quoted with approval in at least two of our
subsequent decisions. 35 We had occasion to reiterate such a view in
the ACCFA case, decided barely two months ago. 36
This particular grant of authority to Congress authorizing the
expropriation of land is a clear manifestation of such a policy that
finds expression in our fundamental law. So is the social justice
principle enshrined in the Constitution of which it is an expression,
as so clearly pointed out in the respective dissenting opinions of
Justice J.B.L. Reyes and Chief Justice Paras in the Baylosis case. Why
it should be thus is so plausibly set forth in the ACCFA decision, the
opinion being penned by Justice Makalintal. We quote: "The
growing complexities of modern society, however, have rendered
this traditional classification of the functions of government quite
unrealistic, not to say absolute. The areas which used to be left to
private enterprise and initiative and which the government was
called upon to enter optionally, and only "because it was better
equipped to administer for the public welfare than is any private
individual or group of individuals," continue to lose their well-
defined boundaries and to be absorbed within activities that the
government must undertake in its sovereign capacity if it is to meet
the increasing social challenges of the times. Here as almost
everywhere else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this development
was envisioned, indeed adopted as a national policy, by the
Constitution itself in its declaration of principle concerning the
promotion of social justice."
It would thus appear that the prevailing opinion in the Baylosis case
is far from compelling. To the extent that the conclusion reached by
us in this suit proceeds from a different reading of the constitutional
provision in question, it must be deemed as being possessed of less
than decisive weight.
4. There need be no fear that such constitutional grant of power to
expropriate lands is without limit. As in the case of the more general
provision on eminent domain, there is the explicit requirement of
the payment of just compensation. It is well-settled that just
compensation means the equivalent for the value of the property at
the time of its taking. Anything beyond that is more, and anything
short of that is less, than just compensation. It means a fair and full
equivalent for the loss sustained, which is the measure of the
indemnity, not whatever gain would accrue to the expropriating
entity. The market value of the land taken is the just compensation
to which the owner of condemned property is entitled, the market
value being that sum of money which a person desirous, but not
compelled to buy, and an owner, willing, but not compelled to sell,
would agree on as a price to be given and received for such
property. There must be a consideration then of all the facts which
make it commercially valuable. The question is what would be
obtained for it on the market from parties who want to buy and
would give full value. Testimonies as to real estate transactions in
the vicinity are admissible. It must be shown though that the
property as to use must be of similar character to the one sought to
be condemned. The transaction must likewise be coeval as to time.
To the market value must be added the consequential damages, if
any, minus the consequential benefits. The assessed value of real
property while constituting prima facie evidence of its value in case
of condemnation proceedings is not conclusive. 37
Then, too, it is a prerequisite for the valid exercise of such a
congressional power that the taking be for the public use. To quote
from the Guido decision: "It has been truly said that the assertion of
the right on the part of the legislature to take the property of one
citizen and transfer it to another, even for a full compensation,
when the public interest is not promoted thereby, is claiming a
despotic power, and one inconsistent with every just principle and
fundamental maxim of a free government." 38 It is on that account
that we granted prohibition to restrain respondent Rural Progress
Administration from proceeding with the expropriation of
petitioner's land, two adjoining lots, part commercial with a
combined area of slightly more than two hectares. As was stressed
by Justice Tuason in his opinion: "No fixed line of demarcation
between what taking is for public use and what is not can be made;
each case has to be judged according to its peculiar circumstances.
It suffices to say for the purpose of this decision that the case under
consideration is far wanting in those elements which make for
public convenience or public use." 39 Such is not the situation before
us now. Nor are we disposed to dispute the legislative appraisal of
the matter.
5. The failure to meet the exacting standard of due process would
likewise constitute a valid objection to the exercise of this
congressional power. That was so intimated in the above leading
Guido case. There was an earlier pronouncement to that effect in a
decision rendered long before the adoption of the Constitution
under the previous organic law then in force, while the Philippines
was still an unincorporated territory of the United States. 40
It is obvious then that a landowner is covered by the mantle of
protection due process affords. It is a mandate of reason. It frowns
on arbitrariness, it is the anti-thesis of any governmental act that
smacks of whim or caprice. It negates state power to act in an
oppressive manner. It is, as had been stressed so often, the embody
of the sporting idea of fair play. In that sense, it stands as a guaranty
of justice. That is the standard that must be met by any
governmental agency in the exercise of whatever competence is
entrusted to
it.41 As was so emphatically stressed by the present Chief Justice,
"acts of Congress, as well as those of the Executive, can deny due
process only under pain of nullity, . ... ." 42
It is easily understandable then why the expropriation of lots less
than one hectare in City of Manila v. Arellano Law College, 43 Lee Tay
v. Choco 44 and Republic vs.
45
Samia and of lots less than two hectares in Commonwealth v. De
Borja 46 and Republic v. Prieto 47 was not given the sanction of
approval by this Court, the failure to meet the due process
requirement being quite evident.
6. It is primarily the equal protection guaranty though that
petitioner's case is made to rest. The Constitution requires that no
person be denied "the equal protection of the laws." 48 A juridical
being is included within its terms.
The assumption underlying such a guaranty is that a legal norm,
whether embodied in a rule, principle, or standard, constitutes a
defense against anarchy at one extreme and tyranny at the other.
Thereby, people living together in a community with its myriad and
complex problems can minimize the friction and reduce the
conflicts, to assure, at the very least, a peaceful ordering of
existence. The ideal situation is for the law's benefits to be available
to all, that none be placed outside the sphere of its coverage. Only
thus could chance and favor be excluded and the affairs of men
governed by that serene and impartial uniformity, which is of the
very essence of the idea of law.
The actual, given things as they are and likely to continue to be,
cannot approximate the ideal. Nor is the law susceptible to the
reproach that it does not take into account the realities of the
situation. The constitutional guaranty then is not to be given a
meaning that disregards what is, what does in fact exist. 49 To assure
that the general welfare be promoted, which is the end of law, a
regulatory measure may cut into the rights to liberty and property.
Those adversely affected may under such circumstances invoke the
equal protection clause only if they can show that the governmental
act assailed, far from being inspired by the attainment of the
common weal was prompted by the spirit of hostility, or at the very
least, discrimination that finds no support in reason. .
It suffices then that the laws operate equally and uniformly on all
persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different,
both in the privileges conferred and the liabilities imposed.
Favoritism and undue preference cannot be allowed. For the
principle is that equal protection and security shall be given to every
person under circumstances, which if not identical are analogous. If
law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest.
It is precisely because the challenged statute applies only to
petitioner that he could assert a denial of equal protection. As set
forth in its brief: "Republic Act No. 2616 is directed solely against
appellee and for this reason violates the equal protection clause of
the Constitution. Unlike other laws which confer authority to
expropriate landed estates in general, it singles out the Tatalon
Estate. It cannot be said, therefore, that it deals equally with other
lands in Quezon City or elsewhere." 50 With due recognition then of
the Power of Congress to designate the particular property to be
taken and how much thereof may be condemned in the exercise of
the power of expropriation, it is still a judicial question whether in
the exercise of such competence, the party adversely affected is the
victim of partiality and prejudice. That the equal protection clause
will not allow.
The judiciary can look into the facts then, no conclusiveness being
attached to a determination of such character when reliance is had
either to the due process clause which is a barrier against
arbitrariness and oppressiveness and the equal protection guaranty
which is an obstacle to invidious discrimination.
We start of course with the presumption of validity, the doubts
being resolved in favor of the challenged enactment. 51 As this is the
first statute of its kind assailed, we should not stop our inquiry
there. The occasion that called for such legislation, if known, goes
far in meeting any serious constitutional objection raised. We turn
to the Explanatory Note of the bill, 52 which was enacted into the
challenged statute. It started with the declaration that it provides
for the "expropriation of the Tatalon Estate, Quezon City, and for
the sale at cost of the lots therein to their present bona fide
occupants, authorizing therefor the appropriation of ten million
pesos." Then it continued: "The Tatalon Estate has an area of more
than ninety six hectares and the lots therein are at present occupied
by no less than one thousand five hundred heads of families, most
of whom are veterans of World War II. It is the earnest desire of this
group of patriotic and loyal citizens to purchase the lots at a
minimum cost." Why there was such a need for expropriation was
next taken up: "The population of Quezon City has considerably
increased. This increase in population is posing a serious housing
problem to city residents. This bill will not only solve the problem
but will also implement the land-for-the-landless program of the
present Administration."
What other facts are there which would remove the alleged
infirmity of the statute on equal protection grounds? The brief for
respondents invited our attention to the social problem which this
legislation was intended to remedy. Thus: "There is a vital point
which should have great weight in the decision of this case. The
petitioner led the occupants of Tatalon Estate to believe that they
were dealing with the representatives of the real owners, the
Veterans Subdivision, in the purchase of their lots. The occupants
believed in good faith that they were dealing with the
representatives of the owners of the lots. This belief was bolstered
by the fact that the petitioners herein even entered into a
compromise agreement on March 16, 1953 with the Deudors,
agreeing to give the latter millions of pesos in settlement of their
claim over the Tatalon Estate. The occupants, therefore, purchased
their respective portions from the Veterans Subdivision in good
faith. The petitioner allowed the Veterans Subdivision to construct
roads in the Tatalon Estate; it allowed said firm to establish an office
in the Tatalon Estate and to advertise the sale of the lots inside the
Tatalon Estate. Petitioner admits having full knowledge of the
activities of the Veterans Subdivision and yet did not lift a finger to
stop said acts. The occupants paid good money for their lots and
spent fortunes to build their homes. It was after the place has been
improved with the building of the roads and the erection of
substantial residential homes that petitioner stepped into the
picture, claiming for the first time that it is the owner of the Tatalon
Estate. Some of the occupants had erected their houses as early as
1947 and 1948. ..." 53
The cutting edge of the above assertions could have been blunted
by the brief for petitioner. This is all it did say on the matter though:
"Appellants alleged that appellee 'led the occupants of Tatalon
Estate to believe that they were dealing with the representatives of
the real owners, the Veterans Subdivision, in the purchase of their
lots' ... . There is absolutely no evidence on record to establish this
ludicrous allegation." 54 Only the alleged duplicity of petitioner was
denied, leaving unanswered the rather persuasive recital of
conditions that could rightly motivate Congress to act as it did.
Clearly, there is no sufficient refutation of the seriousness of the
problem thus underscored by respondents, the solution of which is
the aim of the statute now under attack.
This is not to deny that whenever Congress points to a particular
piece of property to be expropriated, it is faced with a more serious
scrutiny as to its power to act in the premises. It would require
though a clear and palpable showing of its having singled out a party
to bear the brunt of governmental authority that may be
legitimately exerted, induced, it would appear by a feeling of
disapproval or ill-will to make out a case of this guaranty having
been disregarded. If such were the case, then in the language of
Justice Laurel, it "will be the time to make the [judicial] hammer fall
and heavily. But not until then." 55 The most careful study of the
matter before us however yields the conclusion that petitioner was
unable to sustain the burden of demonstrating a denial of equal
protection.
Moreover, there is nothing to prevent Congress in view of the public
funds at its disposal to follow a system of priorities. It could thus
determine what lands would first be the subject of expropriation.
This it did under the challenged legislative act. As already noted,
Congress was moved to act in view of what it considered a serious
social and economic problem. The solution which for it was the
most acceptable was the authorization of the expropriation of the
Tatalon Estate. So it provided under the statute in question. It was
confronted with a situation that called for correction, and the
legislation that was the result of its deliberation sought to apply the
necessary palliative. That it stopped short of possibly attaining the
cure of other analogous ills certainly does not stigmatize its effort as
a denial of equal protection. We have given our sanction to the
principle underlying the exercise of police power and taxation, but
certainly not excluding eminent domain, that "the legislature is not
required by the Constitution to adhere to the policy of "all or
none". 56 Thus, to reiterate, the invocation by petitioner of equal
protection clause is not attended with success.
7. The other points raised may be briefly disposed of. Much is made
of what the lower court considered to be the inaccuracy apparent
on the face of the challenged statute as to the ownership of the
Tatalon Estate. It could very well be that Congress ought to have
taken greater pains to avoid such imprecision. At any rate, the lower
court, unduly alarmed, would consider it a deprivation of property
without due process of law. 57 Such a fear is unwarranted. In the
course of the expropriation proceedings, there undoubtedly would
be a judicial determination as to the party entitled to the just
compensation. As of now then, such a question would appear at the
very least to be premature. Reference is likewise made as to the
effect of the authorized expropriation on those purchasers of lots
located in the Tatalon Estate. Again, on the occasion of the
expropriation, whatever contractual rights might he possessed by
vendors and vendees could be asserted and accorded the
appropriate constitutional protection.
8. What appears undeniable is that in the light of the broad grant of
congressional power so apparent from the text of the constitutional
provision, the historical background as made clear during the
deliberation for the Constitutional Convention, and the cardinal
postulate underlying constitutional construction that its provisions
are not to be interpreted to preclude their being responsive to
future needs, the fundamental law being intended to govern the life
of a nation as it unfolds through the ages, the challenged statute can
survive the test of validity. If it were otherwise, then the judiciary
may lend itself susceptible to the charge that in its appraisal of
governmental measures with social and economic implications, its
decisions are characterized by the narrow, unyielding insistence on
the primacy of property rights, contrary to what the Constitution
ordains. In no other sphere of judicial activity are judges called upon
to transcend personal predilections and private notions of policy,
lest legislation intended to bring to fruition the hope of a better life
for the great masses of our people, as embodied in the social justice
principle of which this constitutional provision under scrutiny is a
manifestation, be unjustifiably stricken down. The appealed decision
cannot stand.
WHEREFORE, the decision of the lower court of January 10, 1963
holding that Republic Act No. 2616 as amended by Republic Act No.
3453 is unconstitutional is reversed. The writ of prohibition suit is
denied, and the preliminary injunction issued by the lower court set
aside. With costs against petitioner.
EN BANC
G.R. No. L-4663 May 30, 1951
FERDINAND E. MARCOS and MANUEL CONCORDIA, petitioners,
vs.
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, ET AL.,
respondents.
x---------------------------------------------------------x
G.R. No. L-4671 May 30, 1951
MANUEL A. CONCORDIA and FERDINAND E. MARCOS, petitioners,
vs.
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, ET AL.,
respondents.
Petitioners in their own behalf.
Judge Advocate General Fred Ruiz Castro and Leonardo R. Lucena
for respondents.
FERIA, J.:
These are two special civil actions of mandamus instituted by the
same petitioners against the respondents General Court-Martials
composed each of different members or officers of the Philippine
Army, in which it is alleged that the respondents Military Tribunals
excluded unlawfully the petitioners from the enjoyment of their
right to appear as counsel for the accused prosecuted before said
tribunals, to which the petitioners are entitled because they are
attorneys duly admitted to practice law in the Philippine Courts, on
the ground that they are disqualified or inhibited by section 17,
Article 17 of the Constitution to appear as counsel for said
defendants. Said Section 17 reads as follows:
SEC. 17. No Senator or Member of the House of Representatives
shall directly or indirectly be financially interested in any contract
with the Government or any subdivision or instrumentality thereof,
or in any franchise or special privilege granted by the Congress
during his term of office. He shall not appear as counsel before the
Electoral Tribunals or before any court in any civil case wherein the
Government or any subdivision or instrumentality thereof is the
adverse party, or in any criminal case wherein an offer or employee
of the Government is accused of an offense committed in relation to
his office. . . ..
The only question for this Court to determine in these two cases is
whether the prohibition contained in the above quoted section 17
of our Constitution is applicable to the petitioners.
We are of the opinion and therefore hold that it is applicable,
because the words "any court" includes the General Court-Martial,
and a court-martial case is a criminal case within the meaning of the
above quoted provisions of our Constitution.
It is obvious that the words "any court," used in prohibiting
members of Congress to appear as counsel "in any criminal case in
which an officer or employee of the Government is accused of an
offense committed in relation to his office," refers, not only to a
civil, but also to a military court or a Court-Martial. Because, in
construing a Constitution, "it must be taken as established that
where words are used which have both a restricted and a general
meaning, the general must prevail over the restricted unless the
nature of the subject matter of the context clearly indicates that the
limited sense is intended." (11 American Jurisprudence, pp. 680-
682).
In the case of Ramon Ruffy vs. Chief of Staff of the Philippine Army,*
43 Off. Gaz., 855, we did not hold that the word "court" in general
used in our Constitution does not include a Court-Martial; what we
held is that the words "inferior courts" used in connection with the
appellate jurisdiction of the Supreme Court to "review on appeal
certiorari or writ of error, as the law or rules of court may provide,
final judgments of inferior courts in all criminal cases in which the
penalty imposed is death or life imprisonment," as provided for in
section 2, Article VIII, of the Constitution, do not refer to Courts-
Martial or Military Courts.
Winthrop's Military Law and Precedents, quoted by the petitioners
and by this Court in the case of Ramon Ruffy et al vs. Chief of Staff of
the Philippine Army, supra, has to say in this connection the
following:
Notwithstanding that the court-martial is only an instrumentality of
the executive power having no relation or connection, in law, with
the judicial establishments of the country, it is yet, so far as it is a
court at all, and within its field of action, as fully a court of law and
justice as is any civil tribunal. As a court of law, it is bound, like any
court, by the fundamental principles of law, and, in the absence of
special provision of the subject in the military code, it observes in
general the rules of evidence as adopted in the common-law courts.
As a court of justice, it is required by the terms of its statutory oath,
(art. 84.) to adjudicate between the U.S. an the accused "without
partiality, favor, or affection," and according, not only to the laws
and customs of the service, but to its "conscience," i.e. its sense of
substantial right and justice unaffected by technicalities. In the
words of the Attorney General, court-martial are thus, "in the
strictest sense courts of justice. (Winthrop's Military Law and
Precedents, Vol. 1 and 2, 2nd Ed., p. 54.)
In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425, with
approval, the court said:
In the language of Attorney General Cushing, a court-martial is a
lawful tribunal existing by the same authority that any other exists
by, and the law military is a branch of law as valid as any other, and
it differs from the general law of the land in authority only in this:
that it applies to officers and soldiers of the army but not to other
members of the body politic, and that it is limited to breaches of
military duty.
And in re Davison, 21 F. 618, 620, it was held:
That court-martial are lawful tribunals existing by the same
authority as civil courts of the United States, have the same plenary
jurisdiction in offenses by the law military as the latter courts have
in controversies within their cognizance, and in their special and
more limited sphere are entitled to as untrammeled an exercise of
their powers.
And lastly, American Jurisprudence says:
SEC. 99. Representation by Counsel. — It is the general rule that one
accused of the crime has the right to be represented before the
court by counsel, and this is expressly so declared by the statues
controlling the procedure in court-martial. It has been held that a
constitutional provision extending that right to one accused in any
trial in any court whatever applies to a court-martial and gives the
accused the undeniable right to defend by counsel, and that a court-
martial has no power to refuse an attorney the right to appear
before it if he is properly licensed to practice in the courts of the
state. (Citing the case of State ex rel Huffaker vs. Crosby, 24 Nev.
115, 50 Pac. 127; 36 American Jurisprudence 253)
The fact that a judgment of conviction, not of acquittal, rendered by
a court-martial must be approved by the reviewing authority before
it can be executed (Article of War 46), does not change or affect the
character of a court-martial as a court. A judgment of the Court of
First Instance imposing death penalty must also be approved by the
Supreme Court before it can be executed.
That court-martial cases are criminal cases within the meaning of
Section 17, Article VI, of the Constitution is also evident, because
the crimes and misdemeanors forbidden or punished by the Articles
of War are offenses against the Republic of the Philippines.
According to section 1, Rule 106, of the Rules of Court, a criminal
action or case is one which involves a wrong or injury done to the
Republic, for the punishment of which the offender is prosecuted in
the name of the People of the Philippines; and pursuant to Article of
War 17, "the trial advocate of a general or special court-martial shall
prosecute (the accused) in the name of the People of the
Philippines."
Winthtrop, in his well known work "Military Law and Precedents'
says the following:
In regard to the class of courts to which it belongs, it is lastly to be
noted that the court-martial is strictly a criminal court. It has no civil
jurisdiction whatever; cannot enforce a contract, collect a debt, or
award damages in favor of an individual. . . . Its judgment is a
criminal sentence not a civil verdict; its proper function is to award
punishment upon the ascertainment of guilt. (Winthrop's Military
Law and Precedents, Vols. 1 & 2, 2nd Ed., p. 55.)
In N. Y. it was held that the term "criminal case," used in the clause,
must be allowed some meaning, and none can be conceived, other
than a prosecution for a criminal offense. Ex parte Carter. 66 S. W.
540, 544, 166 No. 604, 57 L.R.A. 654, quoting People vs. Kelly, 24
N.Y. 74; Counselman vs. Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed.
111o. (Words and Phrases, Vol. 10, p. 485.)
Besides, that a court-martial is a court, and the prosecution of an
accused before it is a criminal and not an administrative case, and
therefore it would be, under certain conditions, a bar to another
prosecution of the defendant for the same offense, because the
latter would place the accused in jeopardy, is shown by the decision
of the Supreme Court of the United States in the case of Grafton vs.
United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the
following was held:
If a court-martial has jurisdiction to try an officer or soldier for a
crime, its judgment will be accorded the finality and conclusiveness
as to the issues involved which attend the judgment of a civil court
in a case of which it may legally take cognizance; and restricting our
decision to the above question of double jeopardy, we judge that,
consistently with the above act of 1902, and for the reasons stated,
the plaintiff in error, a soldier in the Army, having been acquitted of
the crime of homicide, alleged to have been committed by him in
the Philippines, by a military court of competent jurisdiction,
proceeding under the authority of the United States, could not be
subsequently tried for the same offense in a civil court exercising
authority in that territory.
Furthermore, taking into consideration the apparent intention or
purpose of the framers of our Constitution in enacting section 17,
Article VI of the Philippine Constitution, it is obvious that there exist
the same if not more reason for prohibiting the appearance of
members of the Senate and the House of Representatives as
counsel for the accused in court-martial, as for inhibiting them to
appear as such in civil courts, because the independence of civil
court's judges is guaranteed by our Constitution. Ubi eadem ibi
eadem lex.
Wherefore, as the petitioners are disqualified to appear as counsel
for the accused in court-martial, the respondents did not unlawfully
exclude them from the enjoyment of any right, and hence the
petitions for mandamus in these two cases are denied with costs
against the petitioners.
EN BANC
G.R. No. L-533 August 20, 1946
RAMON RUFFY, ET AL., petitioners,
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for
respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the
Chief of Staff and the General Court Martial of the Philippine Army,
be commanded to desist from further proceedings in the trial of
petitioners before that body. Preliminary injunction having been
denied by us and the General Court Martial having gone ahead with
the trial, which eventually resulted in the acquittal of one of the
defendants, Ramon Ruffy, the dismissal of the case as to another,
Victoriano Dinglasan, and the conviction of Jose L. Garcia, Prudente
M. Francisco, Dominador Adeva and Andres Fortus, the last-named
four petitioners now seek in their memorandum to convert the
petition into one for certiorari, with the prayer that the records of
the proceedings before the General Court Martial be ordered
certified to this court for review.
The ground of the petition was that the petitioners were not subject
to military law at the time the offense for which they had been
placed on trial was committed. In their memorandum they have
raised an additional question of law — that the 93d Article of War is
unconstitutional.
An outline of the petitioner's previous connection with the
Philippine Army, the Philippine Constabulary, and/or with guerrilla
organizations will presently be made. This outline is based on
allegations in the petition and the answer, and on exhibits attached
thereto and to the parties' memoranda, exhibits which were offered
in the course of the oral argument and admitted without objection.
The said exhibits are public documents certified by the officials who
had them in custody in their official capacity. They are presumed to
be authentic, as we have no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon
Ruffy was the Provincial Commander, Prudente M. Francisco, a
junior officer, and Andres Fortus, a corporal, all of the Philippine
Constabulary garrison stationed in Mindoro. When, on February 27,
1942, the Japanese forces landed in Mindoro, Major Ruffy retreated
to the mountains instead of surrendering to the enemy, disbanded
his company, and organized and led a guerrilla outfit known as Bolo
Combat team of Bolo Area. Lieutenant Francisco, Corporal Fortus
and Jose L. Garcia, the last then a civilian joined Major Ruffy's
organization towards the latter part of 1942, while Dominador
Adeva and Victoriano Dinglasan, then likewise civilians, became its
members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant
colonel of the Philippine Army, also took to the hills of Panay and
led the operation of the 6th Military District, one of the districts into
which the Philippine Army had been divided before the war. About
November, 1942, Colonel Peralta succeeded in contacting the
General Headquarters of General MacArthur in Australia as the
result of which on February 13, 1943, the 6th Military District was
recognized by the Headquarters of the Southwest Pacific Area as a
military unit and part of its command.
Even before General MacArthur's recognition of the 6th Military
District Colonel Peralta had extended its sphere of operation to
comprise Mindoro and Marinduque, and had, on January 2, 1943,
named Major Ruffy as Acting Commander for those two provinces
and Commanding Officer of the 3rd Battalion, 66 Infantry 61st
Division, Philippine Corps. After the recognition, 2d Lieut. Prudente
M. Francisco, by virtue of Special Orders No. 99, dated November 2,
1943, and signed by Enrique L. Jurado, Major, OSE, Commanding,
was assigned as S-3 in the Bolo Area. Major, later Lieut. Col., Jurado,
it should be noted, had been dispatched by the 6th Military District
to Mindoro to assume operational control supervision over the Bolo
Area unit and to make and direct the necessary report to the
Headquarters, 6th Military District, in Panay. On April 26, 1944, by
General Orders No. 40 of the 6th Military District, 2d Lieutenant
Francisco was promoted to the rank of 1st Lieutenant (Brevet),
effective April 15, 1944, subject to approval by the President of the
Philippines, and was re-assigned to the Bolo Area. As to Andres
Fortus he was assigned to the same Bolo Area as probationary 3d
lieutenant for two-month probationary training, by the
Headquarters of the 6th Military District, as per Special Orders No.
70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military
District, dated January 1943, and signed by L.R. Relunia, Lieut. Col.,
CE, Chief of Staff, Jose L. Garcia and Dominador Adeva were
appointed 3d lieutenants, infantry as of December 31, 1942. Garcia
later was promoted to the rank of captain, effective March 15, 1943,
as per Special Orders No. 82, issued in the field, 6th Military District,
and dated August 28, 1943. On May 24, 1943, Jose L. Garcia took his
oath before Captain Esteban P. Beloncio, then Acting Commanding
Officer, 3d Battalion, 66th Infantry Regiment, 61st Division, 6th
Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L.
Jurado to be Commanding Officer of the Bolo Combat Team in
Mindoro and to undertake other missions of Military character.
Pursuant to instructions, Colonel Jurado on November 2, 1943,
assigned Major Ruffy as Commanding Officer of the Bolo Area with
3d Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco as
members of his staff and Victoriano Dinglasan as Finance Officer, as
per Special Orders No. 99 dated November 2, 1943. In a
memorandum of Colonel Jurado for Major Ruffy bearing date 25
June, 1944, it was stated that Captain Garcia had been given P5,000
for palay and Lieut. Francisco P9,000, P5,000 for palay and P4,000
for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel
Jurado on June 8, 1944: Major Ruffy was relieved of his assignment
as Commanding Officer, Bolo Battalion, and Capt. Esteban P.
Beloncio was put in Ruffy's place. On October 19, 1944, Lieut. Col.
Jurado was slain allegedly by the petitioners. After the commission
of this crime, the petitioners, it is alleged, seceded from the 6th
Military District. It was this murder which gave rise to petitioner's
trial, the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a military
order the pertinent paragraph of which stated: ". . . as Commander
in Chief of the Army and Navy of the United States, I hereby call and
order into the service of the armed forces of the United States
Army, for the period of the existing emergency, and place under the
command of the general officer, United States Army, to be
designated by the Secretary of War, from time to time, all of the
organized military forces of the Government of the
Commonwealth." Following the issuance of President Roosevelt's
order General Douglas MacArthur was appointed Commanding
General of the United States Armed Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus,
that "by the enemy occupation of the Philippines, the National
Defense Act and all laws and regulations creating and governing the
existence of the Philippine Army including the Articles of War, were
suspended and in abeyance during such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from
Winthrop's Military Law and Precedents and the subsequent
paragraph which has been omitted furnish a complete answer to
petitioner's contention of the Philippines by Japanese forces, the
officers and men of the Philippine Army did not cease to be fully in
the service, though in a measure,' only in a measure, they were not
subject to the military jurisdiction, if they were not active duty. In
the latter case, like officers and soldiers on leave of absence or held
as prisoners of war, they could not be held guilty of a breach of the
discipline of the command or of a neglect of duty, or disobedience
of orders, or mutiny, or subject to a military trial therefor; but for an
act unbecoming an officer and a gentleman, or an act which
constitutes an offense of the class specified in the 95th Article of
War, they may in general be legally held subject to military
jurisdiction and trial. "So a prisoner of war, though not subject,
while held by the enemy, to the discipline of his own army, would,
when exchanged of paroled, be not exempt from liability for such
offenses as criminal acts or injuriuos conduct committed during his
captivity against other officers or soldiers in the same status."
(Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or
affecting political relations are considered superseded or in
abeyance during the military occupation, is intended for the
governing of the civil inhabitants of the occupied territory. It is not
intended for and does not bind the enemies in arms. This is self-
evident from the very nature of things. The paradox of a contrary
ruling should readily manifest itself. Under the petitioner's theory
the forces of resistance operating in an occupied territory would
have to abide by the outlawing of their own existence. They would
be stripped of the very life-blood of an army, the right and the
ability to maintain order and discipline within the organization and
to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does
not profit the petitioner's who were former members of the
Philippine Constabulary any more than does the rule of war or
international law they cite. The fall of Bataan and Corregidor did not
end the war. It did not, legally or otherwise, keep the United States
and the Commonwealth of the Philippines from organizing a new
army, regular or irregular, out of new men and men in the old
service who had refused to surrender or who having surrendered,
had decided to carry on the fight through other diverse means and
methods. The fall of Corregidor and Bataan just marked the
beginning of the gigantic preparation for the gigantic drive that was
to fight its way to and beyond the Philippines in fulfillment of
General MacArthur's classic promise, "I shall return." The heroic role
which the guerrillas played in that preparation and in the
subsequent liberation of the Philippines is now history.
Independently of their previous connection with the Philippine
Army and the Philippine Constabulary, Captain Francisco and
Lieutenant Fortus as well as Major Garcia and Lieutenant Adeva
were subject to military jurisdiction.
The 2d Article of War defines and enumerates the persons subject
to military law as follows:
Art. 2. Persons Subject to Military Law. — The following persons are
subject to these articles and shall be understood as included in the
term "any person subject to military law" or "persons subject to
military law," whenever used in these articles:
(a) All officers, members of the Nurse Corps and soldiers belonging
to the Regular Force of the Philippine Army; all reservists, from the
dates of their call to active duty and while on such active duty; all
trainees undergoing military instructions; and all other persons
lawfully called, drafted, or order to obey the same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or
serving with the Army of the Philippines in the field in time of war or
when martial law is declared though not otherwise subject to these
articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general
application of the clause in sub-paragraph (a); "and all other persons
lawfully called, drafted, or ordered into, or to duty for training in,
the said service, from the dates they are required by the terms of
the call, draft, or order to obey the same." By their acceptance of
appointments as officers in the Bolo Area from the General
Headquarters of the 6th Military District, they became members of
the Philippine Army amendable to the Articles of War. The Bolo
Area, as has been seen, was a contigent of the 6th Military District
which, as has also been pointed out, had been recognized by and
placed under the operational control of the United States Army in
the Southwest Pacific. The Bolo Area received supplies and funds for
the salaries of its officers and men from the Southwest Pacific
Command. As officers in the Bolo Area and the 6th Military District,
the petitioners operated under the orders of duly established and
duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not
affect the military status of guerrillas who had been called into the
service of the Philippine Army. If the invaders refused to look upon
guerrillas, without distinctions, as legitimate troops, that did not
stop the guerillas who had been inducted into the service of the
Philippine Army from being component parts thereof, bound to
obey military status of guerrillas was to be judged not by the
concept of the army of the country for which they fought.
The constitutionality of the 93d Article of War is assailed. This article
ordains "that any person subject to military law who commits
murder in time of was shall suffer death or imprisonment for life, as
the court martial may direct." It is argued that since "no review is
provided by that law to be made by the Supreme Court, irrespective
of whether the punishment is for life imprisonment or death", it
violates Article VIII, section 2, paragraph 4, of the Constitution of the
Philippines which provides that "the National Assembly may not
deprive the Supreme Court of its original jurisdiction over all
criminal cases in which the penalty imposed is death or life
imprisonment."
We think the petitioners are in error. This error arose from failure to
perceive the nature of courts martial and the sources of the
authority for their creation.
Courts martial are agencies of executive character, and one of the
authorities "for the ordering of courts martial has been held to be
attached to the constitutional functions of the President as
Commander in Chief, independently of legislation." (Winthrop's
Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of law,
they are not a portion of the judiciary. "The Supreme Court of the
United States referring to the provisions of the Constitution
authorizing Congress to provide for the government of the army,
excepting military offenses from the civil jurisdiction, and making
the President Commander in Chief, observes as follows: "These
provisions show that Congress has the power to provide for the trial
and punishment of military and naval offenses in the manner then
and now practiced by civilized nations, and that the power to do so
is given without any connection between it and the 3d Article of the
United States; indeed that the two powers are entirely independent
of each other."

"Not belonging to the judicial branch of the government, it follows

that courts-martial must pertain to the executive department; and
they are in fact simply instrumentalities of the executive power,
provided by Congress for the President as Commander in Chief, to
aid him in properly commanding the army and navy and enforcing
discipline therein, and utilized under his orders or those of his
authorized military representatives." (Winthrop's Military Law and
Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2 M. F., 361,
says of these courts in the British law: "It must never be lost sight of
that the only legitimate object of military tribunals is to aid the
Crown to maintain the discipline and government of the Army."
(Footnote No. 24, p. 49, Winthrop's Military Law and Precedents, 2d
Edition.)

Our conclusion, therefore, is that the petition has no merit and that
it should be dismissed with costs. It is so ordered.

Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and

Padilla, JJ., concur.
EN BANC
G.R. No. L-630 November 15, 1947
ALEXANDER A. KRIVENKO, petitioner-appellant,
vs.
THE REGISTER OF DEEDS, CITY OF MANILA, respondent and
appellee.
Gibbs, Gibbs, Chuidian and Quasha of petitioner-appellant.
First Assistant Solicitor General Reyes and Solicitor Carreon for
respondent-appellee.
Marcelino Lontok appeared as amicus curies.
MORAN, C.J.:
Alenxander A. Kriventor alien, bought a residential lot from the
Magdalena Estate, Inc., in December of 1941, the registration of
which was interrupted by the war. In May, 1945, he sought to
accomplish said registration but was denied by the register of deeds
of Manila on the ground that, being an alien, he cannot acquire land
in this jurisdiction. Krivenko then brought the case to the fourth
branch of the Court of First Instance of Manila by means of a
consulta, and that court rendered judgment sustaining the refusal of
the register of deeds, from which Krivenko appealed to this Court.
There is no dispute as to these facts. The real point in issue is
whether or not an alien under our Constitution may acquire
residential land.
It is said that the decision of the case on the merits is unnecessary,
there being a motion to withdraw the appeal which should have
been granted outright, and reference is made to the ruling laid
down by this Court in another case to the effect that a court should
not pass upon a constitutional question if its judgment may be made
to rest upon other grounds. There is, we believe, a confusion of
ideas in this reasoning. It cannot be denied that the constitutional
question is unavoidable if we choose to decide this case upon the
merits. Our judgment cannot to be made to rest upon other grounds
if we have to render any judgment at all. And we cannot avoid our
judgment simply because we have to avoid a constitutional
question. We cannot, for instance, grant the motion withdrawing
the appeal only because we wish to evade the constitutional; issue.
Whether the motion should be, or should not be, granted, is a
question involving different considerations now to be stated.
According to Rule 52, section 4, of the Rules of Court, it is
discretionary upon this Court to grant a withdrawal of appeal after
the briefs have been presented. At the time the motion for
withdrawal was filed in this case, not only had the briefs been
prensented, but the case had already been voted and the majority
decision was being prepared. The motion for withdrawal stated no
reason whatsoever, and the Solicitor General was agreeable to it.
While the motion was pending in this Court, came the new circular
of the Department of Justice, instructing all register of deeds to
accept for registration all transfers of residential lots to aliens. The
herein respondent-appellee was naturally one of the registers of
deeds to obey the new circular, as against his own stand in this case
which had been maintained by the trial court and firmly defended in
this Court by the Solicitor General. If we grant the withdrawal, the
the result would be that petitioner-appellant Alexander A. Krivenko
wins his case, not by a decision of this Court, but by the decision or
circular of the Department of Justice, issued while this case was
pending before this Court. Whether or not this is the reason why
appellant seeks the withdrawal of his appeal and why the Solicitor
General readily agrees to that withdrawal, is now immaterial. What
is material and indeed very important, is whether or not we should
allow interference with the regular and complete exercise by this
Court of its constitutional functions, and whether or not after having
held long deliberations and after having reached a clear and positive
conviction as to what the constitutional mandate is, we may still
allow our conviction to be silenced, and the constitutional mandate
to be ignored or misconceived, with all the harmful consequences
that might be brought upon the national patromony. For it is but
natural that the new circular be taken full advantage of by many,
with the circumstance that perhaps the constitutional question may
never come up again before this court, because both vendors and
vendees will have no interest but to uphold the validity of their
transactions, and very unlikely will the register of deeds venture to
disobey the orders of their superior. Thus, the possibility for this
court to voice its conviction in a future case may be remote, with
the result that our indifference of today might signify a permanent
offense to the Constitution.
All thse circumstances were thoroughly considered and weighted by
this Court for a number of days and the legal result of the last vote
was a denial of the motion withdrawing the appeal. We are thus
confronted, at this stage of the proceedings, with our duty, the
constitutional question becomes unavoidable. We shall then
proceed to decide that question.
Article XIII, section 1, of the Constitutional is as follows:
Article XIII. — Conservation and utilization of natural resources.
SECTION 1. All agricultural, timber, and mineral lands of the
public domain, water, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, and other natural resources of
the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens
of the Philippines, or to corporations or associations at least sixty
per centum of the capital of which is owned by such citizens, subject
to any existing right, grant, lease, or concession at the time of the
inaguration of the Government established uunder this
Constitution. Natural resources, with the exception of public
agricultural land, shall not be alienated, and no licence, concession,
or lease for the exploitation, development, or utilization of any of
the natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty-five years, except
as to water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water "power" in which cases
beneficial use may be the measure and the limit of the grant.
The scope of this constitutional provision, according to its heading
and its language, embraces all lands of any kind of the public
domain, its purpose being to establish a permanent and
fundamental policy for the conservation and utilization of all natural
resources of the Nation. When, therefore, this provision, with
reference to lands of the public domain, makes mention of only
agricultural, timber and mineral lands, it means that all lands of the
public domain are classified into said three groups, namely,
agricultural, timber and mineral. And this classification finds
corroboration in the circumstance that at the time of the adoption
of the Constitution, that was the basic classification existing in the
public laws and judicial decisions in the Philippines, and the term
"public agricultural lands" under said classification had then
acquired a technical meaning that was well-known to the members
of the Constitutional Convention who were mostly members of the
legal profession.
As early as 1908, in the case of Mapa vs. Insular Government (10
Phil., 175, 182), this Court said that the phrase "agricultural public
lands" as defined in the Act of Congress of July 1, 1902, which
phrase is also to be found in several sections of the Public Land Act
(No. 926), means "those public lands acquired from Spain which are
neither mineral for timber lands." This definition has been followed
in long line of decisions of this Court. (See Montano vs. Insular
Government, 12 Phil., 593; Ibañez de Aldecoa vs. Insular
Government, 13 Phil., 159; Ramos vs. Director of Lands, 39 Phil.,
175; Jocson vs. Director of Forestry, 39 Phil., 560; Ankron vs.
Government of the Philippines, 40 Phil., 10.) And with respect to
residential lands, it has been held that since they are neither
mineral nor timber lands, of necessity they must be classified as
agricultural. In Ibañez de Aldecoa vs. Insular Government (13 Phil.,
159, 163), this Court said:
Hence, any parcel of land or building lot is susceptible of cultivation,
and may be converted into a field, and planted with all kinds of
vegetation; for this reason, where land is not mining or forestal in its
nature, it must necessarily be included within the classification of
agricultural land, not because it is actually used for the purposes of
agriculture, but because it was originally agricultural and may again
become so under other circumstances; besides, the Act of Congress
contains only three classification, and makes no special provision
with respect to building lots or urban lands that have ceased to be
agricultural land.
In other words, the Court ruled that in determining whether a parcel
of land is agricultural, the test is not only whether it is actually
agricultural, but also its susceptibility to cultivation for agricultural
purposes. But whatever the test might be, the fact remains that at
the time the Constitution was adopted, lands of the public domain
were classified in our laws and jurisprudence into agricultural,
mineral, and timber, and that the term "public agricultural lands"
was construed as referring to those lands that were not timber or
mineral, and as including residential lands. It may safely be
presumed, therefore, that what the members of the Constitutional
Convention had in mind when they drafted the Constitution was this
well-known classification and its technical meaning then prevailing.
Certain expressions which appear in Constitutions, . . . are obviously
technical; and where such words have been in use prior to the
adoption of a Constitution, it is presumed that its framers and the
people who ratified it have used such expressions in accordance
with their technical meaning. (11 Am. Jur., sec. 66, p. 683.) Also
Calder vs. Bull, 3 Dall. [U.S.], 386; 1 Law. ed., 648; Bronson vs.
Syverson, 88 Wash., 264; 152 P., 1039.)
It is a fundamental rule that, in construing constitutions, terms
employed therein shall be given the meaning which had been put
upon them, and which they possessed, at the time of the framing
and adoption of the instrument. If a word has acquired a fixed,
technical meaning in legal and constitutional history, it will be
presumed to have been employed in that sense in a written
Constitution. (McKinney vs. Barker, 180 Ky., 526; 203 S.W., 303;
L.R.A., 1918 E, 581.)
Where words have been long used in a technical sense and have
been judicially construed to have a certain meaning, and have been
adopted by the legislature as having a certain meaning prior to a
particular statute in which they are used, the rule of construction
requires that the words used in such statute should be construed
according to the sense in which they have been so previously used,
although the sense may vary from strict literal meaning of the
words. (II Sutherland, Statutory Construction, p. 758.)
Therefore, the phrase "public agricultural lands" appearing in
section 1 of Article XIII of the Constitution must be construed as
including residential lands, and this is in conformity with a legislative
interpretation given after the adoption of the Constitution. Well
known is the rule that "where the Legislature has revised a statute
after a Constitution has been adopted, such a revision is to be
regarded as a legislative construction that the statute so revised
conforms to the Constitution." (59 C.J., 1102.) Soon after the
Constitution was adopted, the National Assembly revised the Public
Land Law and passed Commonwealth Act No. 141, and sections 58,
59 and 60 thereof permit the sale of residential lots to Filipino
citizens or to associations or corporations controlled by such
citizens, which is equivalent to a solemn declaration that residential
lots are considered as agricultural lands, for, under the Constitution,
only agricultural lands may be alienated.
It is true that in section 9 of said Commonwealth Act No. 141,
"alienable or disposable public lands" which are the same "public
agriculture lands" under the Constitution, are classified into
agricultural, residential, commercial, industrial and for other
puposes. This simply means that the term "public agricultural lands"
has both a broad and a particular meaning. Under its broad or
general meaning, as used in the Constitution, it embraces all lands
that are neither timber nor mineral. This broad meaning is
particularized in section 9 of Commonwealth Act No. 141 which
classifies "public agricultural lands" for purposes of alienation or
disposition, into lands that are stricly agricultural or actually
devoted to cultivation for agricultural puposes; lands that are
residential; commercial; industrial; or lands for other purposes. The
fact that these lands are made alienable or disposable under
Commonwealth Act No. 141, in favor of Filipino citizens, is a
conclusive indication of their character as public agricultural lands
under said statute and under the Constitution.
It must be observed, in this connection that prior to the
Constitution, under section 24 of Public Land Act No. 2874, aliens
could acquire public agricultural lands used for industrial or
residential puposes, but after the Constitution and under section 23
of Commonwealth Act No. 141, the right of aliens to acquire such
kind of lands is completely stricken out, undoubtedly in pursuance
of the constitutional limitation. And, again, prior to the Constitution,
under section 57 of Public Land Act No. 2874, land of the public
domain suitable for residence or industrial purposes could be sold
or leased to aliens, but after the Constitution and under section 60
of Commonwealth Act No. 141, such land may only be leased, but
not sold, to aliens, and the lease granted shall only be valid while
the land is used for the purposes referred to. The exclusion of sale in
the new Act is undoubtedly in pursuance of the constitutional
limitation, and this again is another legislative construction that the
term "public agricultural land" includes land for residence purposes.
Such legislative interpretation is also in harmony with the
interpretation given by the Executive Department of the
Government. Way back in 1939, Secretary of Justice Jose Abad
Santos, in answer to a query as to "whether or not the phrase
'public agricultural lands' in section 1 of Article XII (now XIII) of the
Constitution may be interpreted to include residential, commercial,
and industrial lands for purposes of their disposition," rendered the
following short, sharp and crystal-clear opinion:
Section 1, Article XII (now XIII) of the Constitution classifies lands of
the public domain in the Philippines into agricultural, timber and
mineral. This is the basic classification adopted since the enactment
of the Act of Congress of July 1, 1902, known as the Philippine Bill.
At the time of the adoption of the Constitution of the Philippines,
the term 'agricultural public lands' and, therefore, acquired a
technical meaning in our public laws. The Supreme Court of the
Philippines in the leading case of Mapa vs. Insular Government, 10
Phil., 175, held that the phrase 'agricultural public lands' means
those public lands acquired from Spain which are neither timber nor
mineral lands. This definition has been followed by our Supreme
Court in many subsequent case. . . .
Residential commercial, or industrial lots forming part of the public
domain must have to be included in one or more of these classes.
Clearly, they are neither timber nor mineral, of necessity, therefore,
they must be classified as agricultural.
Viewed from another angle, it has been held that in determining
whether lands are agricultural or not, the character of the land is
the test (Odell vs. Durant, 62 N.W., 524; Lorch vs. Missoula Brick and
Tile Co., 123 p.25). In other words, it is the susceptibility of the land
to cultivation for agricultural purposes by ordinary farming methods
which determines whether it is agricultural or not (State vs. Stewart,
190 p. 129).
Furthermore, as said by the Director of Lands, no reason is seen why
a piece of land, which may be sold to a person if he is to devote it to
agricultural, cannot be sold to him if he intends to use it as a site for
his home.
This opinion is important not alone because it comes from a
Secratary of Justice who later became the Chief Justice of this Court,
but also because it was rendered by a member of the cabinet of the
late President Quezon who actively participated in the drafting of
the constitutional provision under consideration. (2 Aruego, Framing
of the Philippine Constitution, p. 598.) And the opinion of the
Quezon administration was reiterated by the Secretary of Justice
under the Osmeña administration, and it was firmly maintained in
this Court by the Solicitor General of both administrations.
It is thus clear that the three great departments of the Government
— judicial, legislative and executive — have always maintained that
lands of the public domain are classified into agricultural, mineral
and timber, and that agricultural lands include residential lots.
Under section 1 of Article XIII of the Constitution, "natural
resources, with the exception of public agricultural land, shall not be
aliented," and with respect to public agricultural lands, their
alienation is limited to Filipino citizens. But this constitutional
purpose conserving agricultural resources in the hands of Filipino
citizens may easily be defeated by the Filipino citizens themselves
who may alienate their agricultural lands in favor of aliens. It is
partly to prevent this result that section 5 is included in Article XIII,
and it reads as follows:
Sec. 5. Save in cases of hereditary succession, no private
agricultural land will be transferred or assigned except to
individuals, corporations, or associations qualified to acquire or hold
lands of the public domain in the Philippines.
This constitutional provision closes the only remaining avenue
through which agricultural resources may leak into aliens' hands. It
would certainly be futile to prohibit the alienation of public
agricultural lands to aliens if, after all, they may be freely so
alienated upon their becoming private agricultural lands in the
hands of Filipino citizens. Undoubtedly, as above indicated, section
5 is intended to insure the policy of nationalization contained in
section 1. Both sections must, therefore, be read together for they
have the same purpose and the same subject matter. It must be
noticed that the persons against whom the prohibition is directed in
section 5 are the very same persons who under section 1 are
disqualified "to acquire or hold lands of the public domain in the
Philippines." And the subject matter of both sections is the same,
namely, the non-transferability of "agricultural land" to aliens. Since
"agricultural land" under section 1 includes residential lots, the
same technical meaning should be attached to "agricultural land
under section 5. It is a rule of statutory construction that "a word or
phrase repeated in a statute will bear the same meaning throughout
the statute, unless a different intention appears." (II Sutherland,
Statutory Construction, p. 758.) The only difference between
"agricultural land" under section 5, is that the former is public and
the latter private. But such difference refers to ownership and not
to the class of land. The lands are the same in both sections, and, for
the conservation of the national patrimony, what is important is the
nature or class of the property regardless of whether it is owned by
the State or by its citizens.
Reference is made to an opinion rendered on September 19, 1941,
by the Hon. Teofilo Sison, then Secretary of Justice, to the effect
that residential lands of the public domain may be considered as
agricultural lands, whereas residential lands of private ownership
cannot be so considered. No reason whatsoever is given in the
opinion for such a distinction, and no valid reason can be adduced
for such a discriminatory view, particularly having in mind that the
purpose of the constitutional provision is the conservation of the
national patrimony, and private residential lands are as much an
integral part of the national patrimony as the residential lands of the
public domain. Specially is this so where, as indicated above, the
prohibition as to the alienable of public residential lots would
become superflous if the same prohibition is not equally applied to
private residential lots. Indeed, the prohibition as to private
residential lands will eventually become more important, for time
will come when, in view of the constant disposition of public lands in
favor of private individuals, almost all, if not all, the residential lands
of the public domain shall have become private residential lands.
It is maintained that in the first draft of section 5, the words "no
land of private ownership" were used and later changed into "no
agricultural land of private ownership," and lastly into "no private
agricultural land" and from these changes it is argued that the word
"agricultural" introduced in the second and final drafts was intended
to limit the meaning of the word "land" to land actually used for
agricultural purposes. The implication is not accurate. The wording
of the first draft was amended for no other purpose than to clarify
concepts and avoid uncertainties. The words "no land" of the first
draft, unqualified by the word "agricultural," may be mistaken to
include timber and mineral lands, and since under section 1, this
kind of lands can never be private, the prohibition to transfer the
same would be superfluous. Upon the other hand, section 5 had to
be drafted in harmony with section 1 to which it is supplementary,
as above indicated. Inasmuch as under section 1, timber and
mineral lands can never be private, and the only lands that may
become private are agricultural lands, the words "no land of private
ownership" of the first draft can have no other meaning than
"private agricultural land." And thus the change in the final draft is
merely one of words in order to make its subject matter more
specific with a view to avoiding the possible confusion of ideas that
could have arisen from the first draft.
If the term "private agricultural lands" is to be construed as not
including residential lots or lands not strictly agricultural, the result
would be that "aliens may freely acquire and possess not only
residential lots and houses for themselves but entire subdivisions,
and whole towns and cities," and that "they may validly buy and
hold in their names lands of any area for building homes, factories,
industrial plants, fisheries, hatcheries, schools, health and vacation
resorts, markets, golf courses, playgrounds, airfields, and a host of
other uses and purposes that are not, in appellant's words, strictly
agricultural." (Solicitor General's Brief, p. 6.) That this is obnoxious
to the conservative spirit of the Constitution is beyond question.
One of the fundamental principles underlying the provision of
Article XIII of the Constitution and which was embodied in the
report of the Committee on Nationalization and Preservation of
Lands and other Natural Resources of the Constitutional
Convention, is "that lands, minerals, forests, and other natural
resources constitute the exclusive heritage of the Filipino nation.
They should, therefore, be preserved for those under the sovereign
authority of that nation and for their posterity." (2 Aruego, Framing
of the Filipino Constitution, p. 595.) Delegate Ledesma, Chairman of
the Committee on Agricultural Development of the Constitutional
Convention, in a speech delivered in connection with the national
policy on agricultural lands, said: "The exclusion of aliens from the
privilege of acquiring public agricultural lands and of owning real
estate is a necessary part of the Public Land Laws of the Philippines
to keep pace with the idea of preserving the Philippines for the
Filipinos." (Emphasis ours.) And, of the same tenor was the speech
of Delegate Montilla who said: "With the complete nationalization
of our lands and natural resources it is to be understood that our
God-given birthright should be one hundred per cent in Filipino
hands . . .. Lands and natural resources are immovables and as such
can be compared to the vital organs of a person's body, the lack of
possession of which may cause instant death or the shortening of
life. If we do not completely antionalize these two of our most
important belongings, I am afraid that the time will come when we
shall be sorry for the time we were born. Our independence will be
just a mockery, for what kind of independence are we going to have
if a part of our country is not in our hands but in those of
foreigners?" (Emphasis ours.) Professor Aruego says that since the
opening days of the Constitutional Convention one of its fixed and
dominating objectives was the conservation and nationalization of
the natural resources of the country. (2 Aruego, Framing of the
Philippine Constitution, p 592.) This is ratified by the members of
the Constitutional Convention who are now members of this Court,
namely, Mr. Justice Perfecto, Mr. Justice Briones, and Mr. Justice
Hontiveros. And, indeed, if under Article XIV, section 8, of the
Constitution, an alien may not even operate a small jitney for hire, it
is certainly not hard to understand that neither is he allowed to own
a pieace of land.
This constitutional intent is made more patent and is strongly
implemented by an act of the National Assembly passed soon after
the Constitution was approved. We are referring again to
Commonwealth Act No. 141. Prior to the Constitution, there were in
the Public Land Act No. 2874 sections 120 and 121 which granted
aliens the right to acquire private only by way of reciprocity. Said
section reads as follows:
SEC. 120. No land originally acquired in any manner under
the provisions of this Act, nor any permanent improvement on such
land, shall be encumbered, alienated, or transferred, except to
persons, corporations, associations, or partnerships who may
acquire lands of the public domain under this Act; to corporations
organized in the Philippine Islands authorized therefor by their
charters, and, upon express authorization by the Philippine
Legislature, to citizens of countries the laws of which grant to
citizens of the Philippine Islands the same right to acquire, hold,
lease, encumber, dispose of, or alienate land, or permanent
improvements thereon, or any interest therein, as to their own
citizens, only in the manner and to the extent specified in such laws,
and while the same are in force but not thereafter.
SEC. 121. No land originally acquired in any manner under
the provisions of the former Public Land Act or of any other Act,
ordinance, royal order, royal decree, or any other provision of law
formerly in force in the Philippine Islands with regard to public
lands, terrenos baldios y realengos, or lands of any other
denomination that were actually or presumptively of the public
domain or by royal grant or in any other form, nor any permanent
improvement on such land, shall be encumbered, alienated, or
conveyed, except to persons, corporations, or associations who may
acquire land of the public domain under this Act; to corporate
bodies organized in the Philippine Islands whose charters may
authorize them to do so, and, upon express authorization by the
Philippine Legislature, to citizens of the countries the laws of which
grant to citizens of the Philippine Islands the same right to acquire,
hold, lease, encumber, dispose of, or alienate land or pemanent
improvements thereon or any interest therein, as to their own
citizens, and only in the manner and to the extent specified in such
laws, and while the same are in force, but not thereafter: Provided,
however, That this prohibition shall not be applicable to the
conveyance or acquisition by reason of hereditary succession duly
acknowledged and legalized by competent courts, nor to lands and
improvements acquired or held for industrial or residence purposes,
while used for such purposes: Provided, further, That in the event of
the ownership of the lands and improvements mentioned in this
section and in the last preceding section being transferred by
judicial decree to persons,corporations or associations not legally
capacitated to acquire the same under the provisions of this Act,
such persons, corporations, or associations shall be obliged to
alienate said lands or improvements to others so capacitated within
the precise period of five years, under the penalty of such property
reverting to the Government in the contrary case." (Public Land Act,
No. 2874.)
It is to be observed that the pharase "no land" used in these section
refers to all private lands, whether strictly agricultural, residential or
otherwise, there being practically no private land which had not
been acquired by any of the means provided in said two sections.
Therefore, the prohibition contained in these two provisions was, in
effect, that no private land could be transferred to aliens except
"upon express authorization by the Philippine Legislature, to citizens
of Philippine Islands the same right to acquire, hold, lease,
encumber, dispose of, or alienate land." In other words, aliens were
granted the right to acquire private land merely by way of
reciprocity. Then came the Constitution and Commonwealth Act No.
141 was passed, sections 122 and 123 of which read as follows:
SEC. 122. No land originally acquired in any manner under
the provisions of this Act, nor any permanent improvement on such
land, shall be encumbered, alienated, or transferred, except to
persons, corporations, associations, or partnerships who may
acquire lands of the public domain under this Act or to corporations
organized in the Philippines authorized thereof by their charters.
SEC. 123. No land originally acquired in any manner under
the provisions of any previous Act, ordinance, royal order, royal
decree, or any other provision of law formerly in force in the
Philippines with regard to public lands terrenos baldios y realengos,
or lands of any other denomination that were actually or
presumptively of the public domain, or by royal grant or in any other
form, nor any permanent improvement on such land, shall be
encumbered, alienated, or conveyed, except to persons,
corporations or associations who may acquire land of the public
domain under this Act or to corporate bodies organized in the
Philippines whose charters authorize them to do so: Provided,
however, That this prohibition shall not be applicable to the
conveyance or acquisition by reason of hereditary succession duly
acknowledged and legalized by competent courts: Provided, further,
That in the event of the ownership of the lands and improvements
mentioned in this section and in the last preceding section being
transferred by judicial decree to persons, corporations or
associations not legally capacitated to acquire the same under the
provisions of this Act, such persons, corporations, or associations
shall be obliged to alienate said lands or improvements to others so
capacitated within the precise period of five years; otherwise, such
property shall revert to the Government.
These two sections are almost literally the same as sections 120 and
121 of Act No. 2874, the only difference being that in the new
provisions, the right to reciprocity granted to aliens is completely
stricken out. This, undoubtedly, is to conform to the absolute policy
contained in section 5 of Article XIII of the Constitution which, in
prohibiting the alienation of private agricultural lands to aliens,
grants them no right of reciprocity. This legislative construction
carries exceptional weight, for prominent members of the National
Assembly who approved the new Act had been members of the
Constitutional Convention.
It is said that the lot question does not come within the purview of
sections 122 and 123 of Commonwealth Act No. 141, there being no
proof that the same had been acquired by one of the means
provided in said provisions. We are not, however, diciding the
instant case under the provisions of the Public Land Act, which have
to refer to land that had been formerly of the public domain,
otherwise their constitutionality may be doubtful. We are deciding
the instant case under section 5 of Article XIII of the Constitution
which is more comprehensive and more absolute in the sense that it
prohibits the transfer to alien of any private agricultural land
including residential land whatever its origin might have been.
under the Constitution, no legislative measure would have been
found necessary to authorize mortgage which would have been
deemed also permissible under the Constitution. But clearly it was
the opinion of the Congress that such sale is forbidden by the
Constitution and it was such opinion that prompted the legislative
measure intended to clarify that mortgage is not within the
constitutional prohibition.
It is well to note at this juncture that in the present case we have no
choice. We are construing the Constitution as it is and not as we
may desire it to be. Perhaps the effect of our construction is to
preclude aliens, admitted freely into the Philippines from owning
sites where they may build their homes. But if this is the solemn
mandate of the Constitution, we will not attempt to compromise it
even in the name of amity or equity. We are satisfied, however, that
aliens are not completely excluded by the Constitution from the use
of lands for residential purposes. Since their residence in the
Philippines is temporary, they may be granted temporary rights such
as a lease contract which is not forbidden by the Constitution.
Should they desire to remain here forever and share our fortunes
and misfortunes, Filipino citizenship is not impossible to acquire.
For all the foregoing, we hold that under the Constitution aliens may
not acquire private or public agricultural lands, including residential
lands, and, accordingly, judgment is affirmed, without costs.
Feria, Pablo, Perfecto, Hilado, and Briones, JJ., concur.

And, finally, on June 14, 1947, the Congress approved Republic Act
No. 133 which allows mortgage of "private real property" of any
kind in favor of aliens but with a qualification consisting of expressly
prohibiting aliens to bid or take part in any sale of such real property
as a consequence of the mortgage. This prohibition makes no
distinction between private lands that are strictly agricultural and
private lands that are residental or commercial. The prohibition
embraces the sale of private lands of any kind in favor of aliens,
which is again a clear implementation and a legislative
interpretation of the constitutional prohibition. Had the Congress
been of opinion that private residential lands may be sold to aliens
EN BANC
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG, as
members of the Philippine Senate and as taxpayers; GREGORIO
ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and
HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES UNION,
NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR
ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG
KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG
MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT
INSTITUTE, in representation of various taxpayers and as non-
governmental organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI,
HEHERSON ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON,
NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA.
MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN
OSMEÑA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities
as members of the Philippine Senate who concurred in the
ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in
his capacity as Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry;
ROBERTO SEBASTIAN, in his capacity as Secretary of Agriculture;
ROBERTO DE OCAMPO, in his capacity as Secretary of Finance;
ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs;
and TEOFISTO T. GUINGONA, in his capacity as Executive Secretary,
respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization,
abetted by the membership thereto of the vast majority of countries
has revolutionized international business and economic relations
amongst states. It has irreversibly propelled the world towards trade
liberalization and economic globalization. Liberalization,
globalization, deregulation and privatization, the third-millennium
buzz words, are ushering in a new borderless world of business by
sweeping away as mere historical relics the heretofore traditional
modes of promoting and protecting national economies like tariffs,
export subsidies, import quotas, quantitative restrictions, tax
exemptions and currency controls. Finding market niches and
becoming the best in specific industries in a market-driven and
export-oriented global scenario are replacing age-old "beggar-thy-
neighbor" policies that unilaterally protect weak and inefficient
domestic producers of goods and services. In the words of Peter
Drucker, the well-known management guru, "Increased
participation in the world economy has become the key to domestic
economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the
Second World War, plans for the establishment of three multilateral
institutions — inspired by that grand political body, the United
Nations — were discussed at Dumbarton Oaks and Bretton Woods.
The first was the World Bank (WB) which was to address the
rehabilitation and reconstruction of war-ravaged and later
developing countries; the second, the International Monetary Fund
(IMF) which was to deal with currency problems; and the third, the
International Trade Organization (ITO), which was to foster order
and predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation, from
other states. However, for a variety of reasons, including its non-
ratification by the United States, the ITO, unlike the IMF and WB,
never took off. What remained was only GATT — the General
Agreement on Tariffs and Trade. GATT was a collection of treaties
governing access to the economies of treaty adherents with no
institutionalized body administering the agreements or dependable
system of dispute settlement.
After half a century and several dizzying rounds of negotiations,
principally the Kennedy Round, the Tokyo Round and the Uruguay
Round, the world finally gave birth to that administering body — the
World Trade Organization — with the signing of the "Final Act" in
Marrakesh, Morocco and the ratification of the WTO Agreement by
its members.1
Like many other developing countries, the Philippines joined WTO as
a founding member with the goal, as articulated by President Fidel
V. Ramos in two letters to the Senate (infra), of improving
"Philippine access to foreign markets, especially its major trading
partners, through the reduction of tariffs on its exports, particularly
agricultural and industrial products." The President also saw in the
WTO the opening of "new opportunities for the services sector . . . ,
(the reduction of) costs and uncertainty associated with exporting . .
. , and (the attraction of) more investments into the country."
Although the Chief Executive did not expressly mention it in his
letter, the Philippines — and this is of special interest to the legal
profession — will benefit from the WTO system of dispute
settlement by judicial adjudication through the independent WTO
settlement bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were settled mainly
through negotiations where solutions were arrived at frequently on
the basis of relative bargaining strengths, and where naturally, weak
and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place
nationals and products of member-countries on the same footing as
Filipinos and local products" and (2) that the WTO "intrudes, limits
and/or impairs" the constitutional powers of both Congress and the
Supreme Court, the instant petition before this Court assails the
WTO Agreement for violating the mandate of the 1987 Constitution
to "develop a self-reliant and independent national economy
effectively controlled by Filipinos . . . (to) give preference to
qualified Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic
globalization? Does it proscribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These are
the main questions raised in this petition for certiorari, prohibition
and mandamus under Rule 65 of the Rules of Court praying (1) for
the nullification, on constitutional grounds, of the concurrence of
the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade
Organization (WTO Agreement, for brevity) and (2) for the
prohibition of its implementation and enforcement through the
release and utilization of public funds, the assignment of public
officials and employees, as well as the use of government properties
and resources by respondent-heads of various executive offices
concerned therewith. This concurrence is embodied in Senate
Resolution No. 97, dated December 14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of
The Department of Trade and Industry (Secretary Navarro, for
brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act Embodying
the Results of the Uruguay Round of Multilateral Negotiations (Final
Act, for brevity).
By signing the Final Act,2 Secretary Navarro on behalf of the
Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities, with a view
to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received
a letter dated August 11, 1994 from the President of the
Philippines,3 stating among others that "the Uruguay Round Final
Act is hereby submitted to the Senate for its concurrence pursuant
to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate received
another letter from the President of the Philippines4 likewise dated
August 11, 1994, which stated among others that "the Uruguay
Round Final Act, the Agreement Establishing the World Trade
Organization, the Ministerial Declarations and Decisions, and the
Understanding on Commitments in Financial Services are hereby
submitted to the Senate for its concurrence pursuant to Section 21,
Article VII of the Constitution."
On December 9, 1994, the President of the Philippines certified the
necessity of the immediate adoption of P.S. 1083, a resolution
entitled "Concurring in the Ratification of the Agreement
Establishing the World Trade Organization."5
On December 14, 1994, the Philippine Senate adopted Resolution
No. 97 which "Resolved, as it is hereby resolved, that the Senate
concur, as it hereby concurs, in the ratification by the President of
the Philippines of the Agreement Establishing the World Trade
Organization."6 The text of the WTO Agreement is written on pages
137 et seq. of Volume I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations and includes various agreements
and associated legal instruments (identified in the said Agreement
as Annexes 1, 2 and 3 thereto and collectively referred to as
Multilateral Trade Agreements, for brevity) as follows:
ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and
Annexes
Annex 1C: Agreement on Trade-Related Aspects
Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed7 the
Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of
the Republic of the Philippines, after having seen and considered
the aforementioned Agreement Establishing the World Trade
Organization and the agreements and associated legal instruments
included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh,
Morocco on 15 April 1994, do hereby ratify and confirm the same
and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the
Philippines is composed of the Agreement Proper and "the
associated legal instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro
embodies not only the WTO Agreement (and its integral annexes
aforementioned) but also (1) the Ministerial Declarations and
Decisions and (2) the Understanding on Commitments in Financial
Services. In his Memorandum dated May 13, 1996,8 the Solicitor
General describes these two latter documents as follows:
The Ministerial Decisions and Declarations are twenty-five
declarations and decisions on a wide range of matters, such as
measures in favor of least developed countries, notification
procedures, relationship of WTO with the International Monetary
Fund (IMF), and agreements on technical barriers to trade and on
dispute settlement.
of The Understanding on Commitments in Financial Services dwell on,
among other things, standstill or limitations and qualifications of
commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of
financial services, commercial presence and new financial service.
On December 29, 1994, the present petition was filed. After careful
deliberation on respondents' comment and petitioners' reply
thereto, the Court resolved on December 12, 1995, to give due
course to the petition, and the parties thereafter filed their
respective memoranda. The court also requested the Honorable
Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter
referred to as "Bautista Paper,"9 for brevity, (1) providing a
historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court
directed:
(a) the petitioners to submit the (1) Senate Committee Report
on the matter in controversy and (2) the transcript of
proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1)
a list of Philippine treaties signed prior to the Philippine adherence
to the WTO Agreement, which derogate from Philippine sovereignty
and (2) copies of the multi-volume WTO Agreement and other
documents mentioned in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would
consider the case submitted for resolution. In a Compliance dated
September 16, 1996, the Solicitor General submitted a printed copy
of the 36-volume Uruguay Round of Multilateral Trade Negotiations,
and in another Compliance dated October 24, 1996, he listed the
various "bilateral or multilateral treaties or international
instruments involving derogation of Philippine sovereignty."
Petitioners, on the other hand, submitted their Compliance dated
January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners
summarized the issues as follows:
A. Whether the petition presents a political question or is
otherwise not justiciable.
B. Whether the petitioner members of the Senate who
participated in the deliberations and voting leading to the
concurrence are estopped from impugning the validity of the
Agreement Establishing the World Trade Organization or of the
validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the
World Trade Organization contravene the provisions of Sec. 19,
Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.
D. Whether provisions of the Agreement Establishing the
World Trade Organization unduly limit, restrict and impair Philippine
sovereignty specifically the legislative power which, under Sec. 2,
Article VI, 1987 Philippine Constitution is "vested in the Congress of
the Philippines";
E. Whether provisions of the Agreement Establishing the
World Trade Organization interfere with the exercise of judicial
power.
F. Whether the respondent members of the Senate acted in
grave abuse of discretion amounting to lack or excess of jurisdiction
when they voted for concurrence in the ratification of the
constitutionally-infirm Agreement Establishing the World Trade
Organization.
G. Whether the respondent members of the Senate acted in
grave abuse of discretion amounting to lack or excess of jurisdiction
when they concurred only in the ratification of the Agreement
Establishing the World Trade Organization, and not with the
Presidential submission which included the Final Act, Ministerial
Declaration and Decisions, and the Understanding on Commitments
in Financial Services.
On the other hand, the Solicitor General as counsel for respondents
"synthesized the several issues raised by petitioners into the
following": 10
1. Whether or not the provisions of the "Agreement
Establishing the World Trade Organization and the Agreements and
Associated Legal Instruments included in Annexes one (1), two (2)
and three (3) of that agreement" cited by petitioners directly
contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly
limit, restrict or impair the exercise of legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair
the exercise of judicial power by this Honorable Court in
promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the
ratification by the President of the Philippines of the Agreement
establishing the World Trade Organization" implied rejection of the
treaty embodied in the Final Act.
By raising and arguing only four issues against the seven presented
by petitioners, the Solicitor General has effectively ignored three,
namely: (1) whether the petition presents a political question or is
otherwise not justiciable; (2) whether petitioner-members of the
Senate (Wigberto E. Tañada and Anna Dominique Coseteng) are
estopped from joining this suit; and (3) whether the respondent-
members of the Senate acted in grave abuse of discretion when
they voted for concurrence in the ratification of the WTO
Agreement. The foregoing notwithstanding, this Court resolved to
deal with these three issues thus:
(1) The "political question" issue — being very fundamental
and vital, and being a matter that probes into the very jurisdiction of
this Court to hear and decide this case — was deliberated upon by
the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this
defense is waivable and the respondents have effectively waived it
by not pursuing it in any of their pleadings; in any event, this issue,
even if ruled in respondents' favor, will not cause the petition's
dismissal as there are petitioners other than the two senators, who
are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of
the respondent senators will be taken up as an integral part of the
disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the
respondents did not question the locus standi of petitioners. Hence,
they are also deemed to have waived the benefit of such issue. They
probably realized that grave constitutional issues, expenditures of
public funds and serious international commitments of the nation
are involved here, and that transcendental public interest requires
that the substantive issues be met head on and decided on the
merits, rather than skirted or deflected by procedural matters. 11

To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE
CONTROVERSY? OTHERWISE STATED, DOES THE PETITION INVOLVE
A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO
JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS
THREE ANNEXES CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10
AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS
ANNEXES LIMIT, RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH
THE EXERCISE OF JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO
AGREEMENT AND ITS ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE
UNDERSTANDING ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the
dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld." 12 Once a "controversy as to the
application or interpretation of a constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide." 13
The jurisdiction of this Court to adjudicate the matters 14 raised in
the petition is clearly set out in the 1987 Constitution, 15 as follows:
Judicial power includes the duty of the courts of justice to settle amounting to lack or excess of jurisdiction" on the part of the
actual controversies involving rights which are legally demandable Senate in ratifying the WTO Agreement and its three annexes.
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction Second Issue: The WTO Agreement
on the part of any branch or instrumentality of the government. and Economic Nationalism
The foregoing text emphasizes the judicial department's duty and This is the lis mota, the main issue, raised by the petition.
power to strike down grave abuse of discretion on the part of any
branch or instrumentality of government including Congress. It is an Petitioners vigorously argue that the "letter, spirit and intent" of the
innovation in our political law. 16 As explained by former Chief Constitution mandating "economic nationalism" are violated by the
Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on so-called "parity provisions" and "national treatment" clauses
the question of whether or not a branch of government or any of its scattered in various parts not only of the WTO Agreement and its
officials has acted without jurisdiction or in excess of jurisdiction or annexes but also in the Ministerial Decisions and Declarations and in
so capriciously as to constitute an abuse of discretion amounting to the Understanding on Commitments in Financial Services.
excess of jurisdiction. This is not only a judicial power but a duty to
pass judgment on matters of this nature." Specifically, the "flagship" constitutional provisions referred to are
Sec 19, Article II, and Secs. 10 and 12, Article XII, of the Constitution,
As this Court has repeatedly and firmly emphasized in many cases, which are worded as follows:
18 it will not shirk, digress from or abandon its sacred duty and
authority to uphold the Constitution in matters that involve grave Article II
abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of DECLARATION OF PRINCIPLES
the government. AND STATE POLICIES
As the petition alleges grave abuse of discretion and as there is no xxx xxx xxx
other plain, speedy or adequate remedy in the ordinary course of
law, we have no hesitation at all in holding that this petition should Sec. 19. The State shall develop a self-reliant and independent
be given due course and the vital questions raised therein ruled national economy effectively controlled by Filipinos.
upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition and mandamus are appropriate remedies to raise xxx xxx xxx
constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials. On this, we have Article XII
no equivocation.
NATIONAL ECONOMY AND PATRIMONY
We should stress that, in deciding to take jurisdiction over this
petition, this Court will not review the wisdom of the decision of the xxx xxx xxx
President and the Senate in enlisting the country into the WTO, or
pass upon the merits of trade liberalization as a policy espoused by Sec. 10. . . . The Congress shall enact measures that will encourage
said international body. Neither will it rule on the propriety of the the formation and operation of enterprises whose capital is wholly
government's economic policy of reducing/removing tariffs, taxes, owned by Filipinos.
subsidies, quantitative restrictions, and other import/trade barriers.
Rather, it will only exercise its constitutional duty "to determine In the grant of rights, privileges, and concessions covering the
whether or not there had been a grave abuse of discretion national economy and patrimony, the State shall give preference to
qualified Filipinos.

xxx xxx xxx
Sec. 12. The State shall promote the preferential use of Filipino
labor, domestic materials and locally produced goods, and adopt
measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are
desecrated by the following WTO provisions quoted in their
memorandum: 19
a) In the area of investment measures related to trade in
goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under
GATT 1994, no Member shall apply any TRIM that is inconsistent
with the provisions of Article II or Article XI of GATT 1994.
2. An illustrative list of TRIMS that are inconsistent with the
obligations of general elimination of quantitative restrictions
provided for in paragraph I of Article XI of GATT 1994 is contained in
the Annex to this Agreement." (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p.
22121, emphasis supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national
treatment provided for in paragraph 4 of Article III of GATT 1994
include those which are mandatory or enforceable under domestic
law or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which require:
(a) the purchase or use by an enterprise of products of
domestic origin or from any domestic source, whether specified in
terms of particular products, in terms of volume or value of
products, or in terms of proportion of volume or value of its local
production; or
(b) that an enterprise's purchases or use of imported products
be limited to an amount related to the volume or value of local
products that it exports.
2. TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph 1
of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or
compliance with which is necessary to obtain an advantage, and
which restrict:
(a) the importation by an enterprise of products used in or
related to the local production that it exports;
(b) the importation by an enterprise of products used in or
related to its local production by restricting its access to foreign
exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of
particular products, in terms of volume or value of products, or in
terms of a preparation of volume or value of its local production.
(Annex to the Agreement on Trade-Related Investment Measures,
Vol. 27, Uruguay Round Legal Documents, p. 22125, emphasis
supplied).
The paragraph 4 of Article III of GATT 1994 referred to is quoted as
follows:
The products of the territory of any contracting party imported into
the territory of any other contracting party shall be accorded
treatment no less favorable than that accorded to like products of
national origin in respect of laws, regulations and requirements
affecting their internal sale, offering for sale, purchase,
transportation, distribution or use, the provisions of this paragraph
shall not prevent the application of differential internal
transportation charges which are based exclusively on the economic
operation of the means of transport and not on the nationality of
the product." (Article III, GATT 1947, as amended by the Protocol
Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62
UMTS 82-84 in relation to paragraph 1(a) of the General Agreement
on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal Instruments
p. 177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property
rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual property. . .
(par. 1 Article 3, Agreement on Trade-Related Aspect of Intellectual
Property rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432
(emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any
conditions and qualifications set out therein, each Member shall
accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment
no less favourable than it accords to its own like services and service
suppliers.
2. A Member may meet the requirement of paragraph I by
according to services and service suppliers of any other Member,
either formally suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords
to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be
considered to be less favourable if it modifies the conditions of
completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member.
(Article XVII, General Agreement on Trade in Services, Vol. 28,
Uruguay Round Legal Instruments, p. 22610 emphasis supplied).
It is petitioners' position that the foregoing "national treatment"
and "parity provisions" of the WTO Agreement "place nationals and
products of member countries on the same footing as Filipinos and
local products," in contravention of the "Filipino First" policy of the
Constitution. They allegedly render meaningless the phrase
"effectively controlled by Filipinos." The constitutional conflict
becomes more manifest when viewed in the context of the clear
duty imposed on the Philippines as a WTO member to ensure the
conformity of its laws, regulations and administrative procedures
with its obligations as provided in the annexed agreements. 20
Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national
development and negate the preferential treatment accorded to
Filipino labor, domestic materials and locally produced goods.
On the other hand, respondents through the Solicitor General
counter (1) that such Charter provisions are not self-executing and
merely set out general policies; (2) that these nationalistic portions
of the Constitution invoked by petitioners should not be read in
isolation but should be related to other relevant provisions of Art.
XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the
cited WTO clauses do not conflict with Constitution; and (4) that the
WTO Agreement contains sufficient provisions to protect developing
countries like the Philippines from the harshness of sudden trade
liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of
principles and state policies." The counterpart of this article in the
1935 Constitution 21 is called the "basic political creed of the
nation" by Dean Vicente Sinco. 22 These principles in Article II are
not intended to be self-executing principles ready for enforcement
through the courts. 23 They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case of
Kilosbayan, Incorporated vs. Morato, 24 the principles and state
policies enumerated in Article II and some sections of Article XII are
not "self-executing provisions, the disregard of which can give rise
to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor 25 that broad
constitutional principles need legislative enactments to implement
the, thus:
On petitioners' allegation that P.D. 1869 violates Sections 11
(Personal Dignity) 12 (Family) and 13 (Role of Youth) of Article II;
Section 13 (Social Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution, suffice it to state also
that these are merely statements of principles and policies. As such,
they are basically not self-executing, meaning a law should be
passed by Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be
self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but
political. The electorate could express their displeasure with the
failure of the executive and the legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement
of board constitutional principles are sourced from basic
considerations of due process and the lack of judicial authority to
wade "into the uncharted ocean of social and economic policy
making." Mr. Justice Florentino P. Feliciano in his concurring opinion
in Oposa vs. Factoran, Jr., 26 explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court,
show a more specific legal right — a right cast in language of a
significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or failures
to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment grating all or part of the relief
prayed for. To my mind, the court should be understood as simply
saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in
the Constitution and the existence of the Philippine Environment
Code, and that the trial court should have given petitioners an
effective opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions to
this matter.
The second is a broader-gauge consideration — where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded conception
of judicial power in the second paragraph of Section 1 of Article VIII
of the Constitution which reads:
Sec. 1. ...
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
(Emphasis supplied)
When substantive standards as general as "the right to a balanced
and healthy ecology" and "the right to health" are combined with
remedial standards as broad ranging as "a grave abuse of discretion
amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of the vast
area of environmental protection and management, our courts have
no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments
— the legislative and executive departments — must be given a real
and effective opportunity to fashion and promulgate those norms
and standards, and to implement them before the courts should
intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely
laying down general principles relating to the national economy and
patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which read:
Sec. 1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained
increase in the amount of goods and services produced by the
nation for the benefit of the people; and an expanding productivity
as the key to raising the quality of life for all especially the
underprivileged.
The State shall promote industrialization and full employment based
on sound agricultural development and agrarian reform, through
industries that make full and efficient use of human and natural
resources, and which are competitive in both domestic and foreign
markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic
goals of national economic development, as follows:
1. A more equitable distribution of opportunities, income and
wealth;
2. A sustained increase in the amount of goods and services
provided by the nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality
of life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals
of economic nationalism (1) by expressing preference in favor of
qualified Filipinos "in the grant of rights, privileges and concessions
covering the national economy and patrimony" 27 and in the use of
"Filipino labor, domestic materials and locally-produced goods"; (2)
by mandating the State to "adopt measures that help make them
competitive; 28 and (3) by requiring the State to "develop a self-
reliant and independent national economy effectively controlled by
Filipinos." 29 In similar language, the Constitution takes into account
the realities of the outside world as it requires the pursuit of "a
trade policy that serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of equality ad
reciprocity"; 30 and speaks of industries "which are competitive in
both domestic and foreign markets" as well as of the protection of
"Filipino enterprises against unfair foreign competition and trade
practices."
It is true that in the recent case of Manila Prince Hotel vs.
Government Service Insurance System, et al., 31 this Court held that
"Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which
needs no further guidelines or implementing laws or rule for its
enforcement. From its very words the provision does not require
any legislation to put it in operation. It is per se judicially
enforceable." However, as the constitutional provision itself states,
it is enforceable only in regard to "the grants of rights, privileges and
concessions covering national economy and patrimony" and not to
every aspect of trade and commerce. It refers to exceptions rather
than the rule. The issue here is not whether this paragraph of Sec.
10 of Art. XII is self-executing or not. Rather, the issue is whether, as
a rule, there are enough balancing provisions in the Constitution to
allow the Senate to ratify the Philippine concurrence in the WTO
Agreement. And we hold that there are.
All told, while the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits protection
of Filipino enterprises only against foreign competition and trade
practices that are unfair. 32 In other words, the Constitution did not
intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the
Philippine economy. While the Constitution does not encourage the
unlimited entry of foreign goods, services and investments into the
country, it does not prohibit them either. In fact, it allows an
exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has
some built-in advantages to protect weak and developing
economies, which comprise the vast majority of its members. Unlike
in the UN where major states have permanent seats and veto
powers in the Security Council, in the WTO, decisions are made on
the basis of sovereign equality, with each member's vote equal in
weight to that of any other. There is no WTO equivalent of the UN
Security Council.
WTO decides by consensus whenever possible, otherwise, decisions
of the Ministerial Conference and the General Council shall be taken
by the majority of the votes cast, except in cases of interpretation of
the Agreement or waiver of the obligation of a member which
would require three fourths vote. Amendments would require two
thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any
member may withdraw from the Agreement upon the expiration of
six months from the date of notice of withdrawals. 33
Hence, poor countries can protect their common interests more
effectively through the WTO than through one-on-one negotiations
with developed countries. Within the WTO, developing countries
can form powerful blocs to push their economic agenda more
decisively than outside the Organization. This is not merely a matter
of practical alliances but a negotiating strategy rooted in law. Thus,
the basic principles underlying the WTO Agreement recognize the
need of developing countries like the Philippines to "share in the
growth in international trade commensurate with the needs of their
economic development." These basic principles are found in the
preamble 34 of the WTO Agreement as follows:
The Parties to this Agreement,
Recognizing that their relations in the field of trade and economic
endeavour should be conducted with a view to raising standards of
living, ensuring full employment and a large and steadily growing
volume of real income and effective demand, and expanding the
production of and trade in goods and services, while allowing for the
optimal use of the world's resources in accordance with the
objective of sustainable development, seeking both to protect and
preserve the environment and to enhance the means for doing so in
a manner consistent with their respective needs and concerns at
different levels of economic development,
Recognizing further that there is need for positive efforts designed
to ensure that developing countries, and especially the least
developed among them, secure a share in the growth in
international trade commensurate with the needs of their economic
development,

Being desirous of contributing to these objectives by entering into
reciprocal and mutually advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to trade and to the
elimination of discriminatory treatment in international trade
relations,
Resolved, therefore, to develop an integrated, more viable and
durable multilateral trading system encompassing the General
Agreement on Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the Uruguay Round of
Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the
objectives underlying this multilateral trading system, . . . (emphasis
supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and
consistent with the foregoing basic principles, the WTO Agreement
grants developing countries a more lenient treatment, giving their
domestic industries some protection from the rush of foreign
competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount
of tariff reduction and the period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction
rate of 36% for developed countries to be effected within a period
of six (6) years while developing countries — including the
Philippines — are required to effect an average tariff reduction of
only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries
to reduce domestic support to agricultural products by 20% over six
(6) years, as compared to only 13% for developing countries to be
effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT requires
developed countries to reduce their budgetary outlays for export
subsidy by 36% and export volumes receiving export subsidy by 21%
within a period of six (6) years. For developing countries, however,
the reduction rate is only two-thirds of that prescribed for
developed countries and a longer period of ten (10) years within
which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair
foreign competition and trade practices including anti-dumping
measures, countervailing measures and safeguards against import
surges. Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures. There is
hardly therefore any basis for the statement that under the WTO,
local industries and enterprises will all be wiped out and that
Filipinos will be deprived of control of the economy. Quite the
contrary, the weaker situations of developing nations like the
Philippines have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely
abused their discretion. True, they have made a bold decision to
steer the ship of state into the yet uncharted sea of economic
liberalization. But such decision cannot be set aside on the ground
of grave abuse of discretion, simply because we disagree with it or
simply because we believe only in other economic policies. As
earlier stated, the Court in taking jurisdiction of this case will not
pass upon the advantages and disadvantages of trade liberalization
as an economic policy. It will only perform its constitutional duty of
determining whether the Senate committed grave abuse of
discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and
independent national economy" 35 does not necessarily rule out the
entry of foreign investments, goods and services. It contemplates
neither "economic seclusion" nor "mendicancy in the international
community." As explained by Constitutional Commissioner Bernardo
Villegas, sponsor of this constitutional policy:
Economic self-reliance is a primary objective of a developing country
that is keenly aware of overdependence on external assistance for
even its most basic needs. It does not mean autarky or economic
seclusion; rather, it means avoiding mendicancy in the international
community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic
industries as in the development of natural resources and public
utilities. 36
The WTO reliance on "most favored nation," "national treatment,"
and "trade without discrimination" cannot be struck down as
unconstitutional as in fact they are rules of equality and reciprocity
that apply to all WTO members. Aside from envisioning a trade
policy based on "equality and reciprocity," 37 the fundamental law
encourages industries that are "competitive in both domestic and
foreign markets," thereby demonstrating a clear policy against a
sheltered domestic trade environment, but one in favor of the
gradual development of robust industries that can compete with the
best in the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino
entrepreneurs and managers in Hongkong have demonstrated the
Filipino capacity to grow and to prosper against the best offered
under a policy of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor
of any business or enterprise, nor does it contain any specific
pronouncement that Filipino companies should be pampered with a
total proscription of foreign competition. On the other hand,
respondents claim that WTO/GATT aims to make available to the
Filipino consumer the best goods and services obtainable anywhere
in the world at the most reasonable prices. Consequently, the
question boils down to whether WTO/GATT will favor the general
welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the
general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare
because it will — as promised by its promoters — expand the
country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and
quality products at the most reasonable rates to the Filipino public?
The responses to these questions involve "judgment calls" by our
policy makers, for which they are answerable to our people during
appropriate electoral exercises. Such questions and the answers
thereto are not subject to judicial pronouncements based on grave
abuse of discretion.

Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean
however that the Charter is necessarily flawed in the sense that its
framers might not have anticipated the advent of a borderless world
of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that
necessarily mean that the then Constitution might not have
contemplated a diminution of the absoluteness of sovereignty when
the Philippines signed the UN Charter, thereby effectively
surrendering part of its control over its foreign relations to the
decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are designed
to meet not only the vagaries of contemporary events. They should
be interpreted to cover even future and unknown circumstances. It
is to the credit of its drafters that a Constitution can withstand the
assaults of bigots and infidels but at the same time bend with the
refreshing winds of change necessitated by unfolding events. As one
eminent political law writer and respected jurist 38 explains:
The Constitution must be quintessential rather than superficial, the
root and not the blossom, the base and frame-work only of the
edifice that is yet to rise. It is but the core of the dream that must
take shape, not in a twinkling by mandate of our delegates, but
slowly "in the crucible of Filipino minds and hearts," where it will in
time develop its sinews and gradually gather its strength and finally
achieve its substance. In fine, the Constitution cannot, like the
goddess Athena, rise full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an instant Utopia. It
must grow with the society it seeks to re-structure and march apace
with the progress of the race, drawing from the vicissitudes of
history the dynamism and vitality that will keep it, far from
becoming a petrified rule, a pulsing, living law attuned to the
heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the
conformity of its laws, regulations and administrative procedures
with its obligations as provided in the annexed Agreements." 39
Petitioners maintain that this undertaking "unduly limits, restricts
and impairs Philippine sovereignty, specifically the legislative power
which under Sec. 2, Article VI of the 1987 Philippine Constitution is
vested in the Congress of the Philippines. It is an assault on the
sovereign powers of the Philippines because this means that
Congress could not pass legislation that will be good for our national
interest and general welfare if such legislation will not conform with
the WTO Agreement, which not only relates to the trade in goods . .
. but also to the flow of investments and money . . . as well as to a
whole slew of agreements on socio-cultural matters . . . 40
More specifically, petitioners claim that said WTO proviso derogates
from the power to tax, which is lodged in the Congress. 41 And
while the Constitution allows Congress to authorize the President to
fix tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, such authority is subject to
"specified limits and . . . such limitations and restrictions" as
Congress may provide, 42 as in fact it did under Sec. 401 of the Tariff
and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which
petitioners stressed their arguments on this issue. However, while
sovereignty has traditionally been deemed absolute and all-
encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations.
Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration
of Principles and State Policies, the Constitution "adopts the
generally accepted principles of international law as part of the law
of the land, and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity, with all nations." 43 By the
doctrine of incorporation, the country is bound by generally
accepted principles of international law, which are considered to be
automatically part of our own laws. 44 One of the oldest and most
fundamental rules in international law is pacta sunt servanda —
international agreements must be performed in good faith. "A
treaty engagement is not a mere moral obligation but creates a
legally binding obligation on the parties . . . A state which has
contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken." 45
By their inherent nature, treaties really limit or restrict the
absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all,
states, like individuals, live with coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to
limit the exercise of their otherwise absolute rights. Thus, treaties
have been used to record agreements between States concerning
such widely diverse matters as, for example, the lease of naval
bases, the sale or cession of territory, the termination of war, the
regulation of conduct of hostilities, the formation of alliances, the
regulation of commercial relations, the settling of claims, the laying
down of rules governing conduct in peace and the establishment of
international organizations. 46 The sovereignty of a state therefore
cannot in fact and in reality be considered absolute. Certain
restrictions enter into the picture: (1) limitations imposed by the
very nature of membership in the family of nations and (2)
limitations imposed by treaty stipulations. As aptly put by John F.
Kennedy, "Today, no nation can build its destiny alone. The age of
self-sufficient nationalism is over. The age of interdependence is
here." 47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its
51 charter members, it consented to restrict its sovereign rights
under the "concept of sovereignty as auto-limitation."47-A Under
Article 2 of the UN Charter, "(a)ll members shall give the United
Nations every assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving assistance to any
state against which the United Nations is taking preventive or
enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but also
in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United
Nations Emergency Force in the Middle East and in the Congo were
"expenses of the United Nations" under Article 17, paragraph 2, of
the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine
Congress is restricted in its power to appropriate. It is compelled to
appropriate funds whether it agrees with such peace-keeping
expenses or not. So too, under Article 105 of the said Charter, the
UN and its representatives enjoy diplomatic privileges and
immunities, thereby limiting again the exercise of sovereignty of
members within their own territory. Another example: although
"sovereign equality" and "domestic jurisdiction" of all members are
set forth as underlying principles in the UN Charter, such provisos
are however subject to enforcement measures decided by the
Security Council for the maintenance of international peace and
security under Chapter VII of the Charter. A final example: under
Article 103, "(i)n the event of a conflict between the obligations of
the Members of the United Nations under the present Charter and
their obligations under any other international agreement, their
obligation under the present charter shall prevail," thus
unquestionably denying the Philippines — as a member — the
sovereign power to make a choice as to which of conflicting
obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many
other international pacts — both bilateral and multilateral — that
involve limitations on Philippine sovereignty. These are enumerated
by the Solicitor General in his Compliance dated October 24, 1996,
as follows:
(a) Bilateral convention with the United States regarding taxes
on income, where the Philippines agreed, among others, to exempt
from tax, income received in the Philippines by, among others, the
Federal Reserve Bank of the United States, the Export/Import Bank
of the United States, the Overseas Private Investment Corporation
of the United States. Likewise, in said convention, wages, salaries
and similar remunerations paid by the United States to its citizens
for labor and personal services performed by them as employees or
officials of the United States are exempt from income tax by the
Philippines.
(b) Bilateral agreement with Belgium, providing, among others,
for the avoidance of double taxation with respect to taxes on
income.
(c) Bilateral convention with the Kingdom of Sweden for the
avoidance of double taxation.
(d) Bilateral convention with the French Republic for the
avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the
Philippines agreed to exempt from all customs duties, inspection
fees and other duties or taxes aircrafts of South Korea and the
regular equipment, spare parts and supplies arriving with said
aircrafts.
(f) Bilateral air service agreement with Japan, where the
Philippines agreed to exempt from customs duties, excise taxes,
inspection fees and other similar duties, taxes or charges fuel,
lubricating oils, spare parts, regular equipment, stores on board
Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the
Philippines granted Belgian air carriers the same privileges as those
granted to Japanese and Korean air carriers under separate air
service agreements.
(h) Bilateral notes with Israel for the abolition of transit and
visitor visas where the Philippines exempted Israeli nationals from
the requirement of obtaining transit or visitor visas for a sojourn in
the Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting French
nationals from the requirement of obtaining transit and visitor visa
for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the
Philippines agreed that premises of Special Missions in the
Philippines are inviolable and its agents can not enter said premises
without consent of the Head of Mission concerned. Special Missions
are also exempted from customs duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties. In this
convention, the Philippines agreed to be governed by the Vienna
Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting
compulsory jurisdiction of the International Court of Justice. The
International Court of Justice has jurisdiction in all legal disputes
concerning the interpretation of a treaty, any question of
international law, the existence of any fact which, if established,
would constitute a breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to
limit the exercise of its sovereign powers of taxation, eminent
domain and police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal commitment of the
other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same
reciprocity characterizes the Philippine commitments under WTO-
GATT.
International treaties, whether relating to nuclear disarmament,
human rights, the environment, the law of the sea, or trade,
constrain domestic political sovereignty through the assumption of
external obligations. But unless anarchy in international relations is
preferred as an alternative, in most cases we accept that the
benefits of the reciprocal obligations involved outweigh the costs
associated with any loss of political sovereignty. (T)rade treaties that
structure relations by reference to durable, well-defined substantive
norms and objective dispute resolution procedures reduce the risks
of larger countries exploiting raw economic power to bully smaller
countries, by subjecting power relations to some form of legal
ordering. In addition, smaller countries typically stand to gain
disproportionately from trade liberalization. This is due to the
simple fact that liberalization will provide access to a larger set of
potential new trading relationship than in case of the larger country
gaining enhanced success to the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of
sovereignty may be waived without violating the Constitution,
based on the rationale that the Philippines "adopts the generally
accepted principles of international law as part of the law of the
land and adheres to the policy of . . . cooperation and amity with all
nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the
power of the Supreme Court to promulgate rules concerning
pleading, practice and procedures. 50
To understand the scope and meaning of Article 34, TRIPS, 51 it will
be fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the
infringement of the rights of the owner referred to in paragraph 1
(b) of Article 28, if the subject matter of a patent is a process for
obtaining a product, the judicial authorities shall have the authority
to order the defendant to prove that the process to obtain an
identical product is different from the patented process. Therefore,
Members shall provide, in at least one of the following
circumstances, that any identical product when produced without
the consent of the patent owner shall, in the absence of proof to the
contrary, be deemed to have been obtained by the patented
process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product
was made by the process and the owner of the patent has been
unable through reasonable efforts to determine the process actually
used.
2. Any Member shall be free to provide that the burden of
proof indicated in paragraph 1 shall be on the alleged infringer only
if the condition referred to in subparagraph (a) is fulfilled or only if
the condition referred to in subparagraph (b) is fulfilled.
3. In the adduction of proof to the contrary, the legitimate
interests of defendants in protecting their manufacturing and
business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of
disputable (not the words "in the absence of proof to the contrary")
presumption that a product shown to be identical to one produced
with the use of a patented process shall be deemed to have been
obtained by the (illegal) use of the said patented process, (1) where
such product obtained by the patented product is new, or (2) where
there is "substantial likelihood" that the identical product was made
with the use of the said patented process but the owner of the
patent could not determine the exact process used in obtaining such
identical product. Hence, the "burden of proof" contemplated by
Article 34 should actually be understood as the duty of the alleged
patent infringer to overthrow such presumption. Such burden,
properly understood, actually refers to the "burden of evidence"
(burden of going forward) placed on the producer of the identical
(or fake) product to show that his product was produced without
the use of the patented process.
The foregoing notwithstanding, the patent owner still has the
"burden of proof" since, regardless of the presumption provided
under paragraph 1 of Article 34, such owner still has to introduce
evidence of the existence of the alleged identical product, the fact
that it is "identical" to the genuine one produced by the patented
process and the fact of "newness" of the genuine product or the fact
of "substantial likelihood" that the identical product was made by
the patented process.
The foregoing should really present no problem in changing the
rules of evidence as the present law on the subject, Republic Act No.
165, as amended, otherwise known as the Patent Law, provides a
similar presumption in cases of infringement of patented design or
utility model, thus:
Sec. 60. Infringement. — Infringement of a design patent or of a
patent for utility model shall consist in unauthorized copying of the
patented design or utility model for the purpose of trade or industry
in the article or product and in the making, using or selling of the
article or product copying the patented design or utility model.
Identity or substantial identity with the patented design or utility
model shall constitute evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to
provide a disputable presumption applies only if (1) the product
obtained by the patented process in NEW or (2) there is a
substantial likelihood that the identical product was made by the
process and the process owner has not been able through
reasonable effort to determine the process used. Where either of
these two provisos does not obtain, members shall be free to
determine the appropriate method of implementing the provisions
of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our
disposition of the third issue — derogation of legislative power —
will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually
exists. Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial
dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the adjustment
in legislation and rules of procedure will not be substantial. 52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO
Agreement and its annexes — but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration and
Decisions and the Understanding on Commitments in Financial
Services — is defective and insufficient and thus constitutes abuse
of discretion. They submit that such concurrence in the WTO
Agreement alone is flawed because it is in effect a rejection of the
Final Act, which in turn was the document signed by Secretary
Navarro, in representation of the Republic upon authority of the
President. They contend that the second letter of the President to
the Senate 53 which enumerated what constitutes the Final Act
should have been the subject of concurrence of the Senate.
"A final act, sometimes called protocol de cloture, is an instrument
which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of
treaties, conventions, recommendations and other acts agreed upon
and signed by the plenipotentiaries attending the conference." 54 It
is not the treaty itself. It is rather a summary of the proceedings of a
protracted conference which may have taken place over several
years. The text of the "Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations" is contained in
just one page 55 in Vol. I of the 36-volume Uruguay Round of
Multilateral Trade Negotiations. By signing said Final Act, Secretary
Navarro as representative of the Republic of the Philippines
undertook:
(a) to submit, as appropriate, the WTO Agreement for the
consideration of their respective competent authorities with a view
to seeking approval of the Agreement in accordance with their
procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in
exactly what the Final Act required from its signatories, namely,
concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted
without need for ratification. They were approved by the ministers
by virtue of Article XXV: 1 of GATT which provides that
representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering the
objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also
approved in Marrakesh does not apply to the Philippines. It applies
only to those 27 Members which "have indicated in their respective
schedules of commitments on standstill, elimination of monopoly,
expansion of operation of existing financial service suppliers,
temporary entry of personnel, free transfer and processing of
information, and national treatment with respect to access to
payment, clearing systems and refinancing available in the normal
course of business."57
On the other hand, the WTO Agreement itself expresses what
multilateral agreements are deemed included as its integral parts,
58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-
work for the conduct of trade relations among its Members in
matters to the agreements and associated legal instruments
included in the Annexes to this Agreement.
2. The Agreements and associated legal instruments included
in Annexes 1, 2, and 3, (hereinafter referred to as "Multilateral
Agreements") are integral parts of this Agreement, binding on all
Members.
3. The Agreements and associated legal instruments included
in Annex 4 (hereinafter referred to as "Plurilateral Trade
Agreements") are also part of this Agreement for those Members
that have accepted them, and are binding on those Members. The
Plurilateral Trade Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as
specified in annex 1A (hereinafter referred to as "GATT 1994") is
legally distinct from the General Agreement on Tariffs and Trade,
dated 30 October 1947, annexed to the Final Act adopted at the
conclusion of the Second Session of the Preparatory Committee of
the United Nations Conference on Trade and Employment, as
subsequently rectified, amended or modified (hereinafter referred
to as "GATT 1947").
It should be added that the Senate was well-aware of what it was
concurring in as shown by the members' deliberation on August 25,
1994. After reading the letter of President Ramos dated August 11,
1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring
in, as follows: 60
THE CHAIRMAN: Yes. Now, the question of the validity of the
submission came up in the first day hearing of this Committee
yesterday. Was the observation made by Senator Tañada that what
was submitted to the Senate was not the agreement on establishing
the World Trade Organization by the final act of the Uruguay Round
which is not the same as the agreement establishing the World
Trade Organization? And on that basis, Senator Tolentino raised a
point of order which, however, he agreed to withdraw upon
understanding that his suggestion for an alternative solution at that
time was acceptable. That suggestion was to treat the proceedings
of the Committee as being in the nature of briefings for Senators
until the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a
new . . . is he making a new submission which improves on the
clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and
there should be no misunderstanding, it was his intention to clarify
all matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada and later on Senator
Tolentino since they were the ones that raised this question
yesterday?
Senator Tañada, please.
SEN. TAÑADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly
appear that what is being submitted to the Senate for ratification is
not the Final Act of the Uruguay Round, but rather the Agreement
on the World Trade Organization as well as the Ministerial
Declarations and Decisions, and the Understanding and
Commitments in Financial Services.
I am now satisfied with the wording of the new submission of
President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. Can we hear from
Senator Tolentino? And after him Senator Neptali Gonzales and
Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission
actually transmitted to us but I saw the draft of his earlier, and I
think it now complies with the provisions of the Constitution, and
with the Final Act itself . The Constitution does not require us to
ratify the Final Act. It requires us to ratify the Agreement which is
now being submitted. The Final Act itself specifies what is going to
be submitted to with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to
submit as appropriate the WTO Agreement for the consideration of
the respective competent authorities with a view to seeking
approval of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be
submitted to the governments for ratification or acceptance as
whatever their constitutional procedures may provide but it is the
World Trade Organization Agreement. And if that is the one that is
being submitted now, I think it satisfies both the Constitution and
the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on
Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already
a matter of record. And they had been adequately reflected in the
journal of yesterday's session and I don't see any need for repeating
the same.
Now, I would consider the new submission as an act ex abudante
cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you
want to make any comment on this?
SEN. LINA. Mr. President, I agree with the observation just
made by Senator Gonzales out of the abundance of question. Then
the new submission is, I believe, stating the obvious and therefore I
have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the
WTO Agreement, petitioners are invoking this Court's
constitutionally imposed duty "to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of
jurisdiction" on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ of
certiorari grounded on grave abuse of discretion may be issued by
the Court under Rule 65 of the Rules of Court when it is amply
shown that petitioners have no other plain, speedy and adequate
remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. 61 Mere
abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and must be so
patent and so gross as to amount to an evasion of a positive duty or
to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. 62 Failure on the part of the petitioner to
show grave abuse of discretion will result in the dismissal of the
petition. 63
In rendering this Decision, this Court never forgets that the Senate,
whose act is under review, is one of two sovereign houses of
Congress and is thus entitled to great respect in its actions. It is itself
a constitutional body independent and coordinate, and thus its
actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to
overthrow such presumptions, this Court will resolve every doubt in
its favor. Using the foregoing well-accepted definition of grave
abuse of discretion and the presumption of regularity in the
Senate's processes, this Court cannot find any cogent reason to
impute grave abuse of discretion to the Senate's exercise of its
power of concurrence in the WTO Agreement granted it by Sec. 21
of Article VII of the Constitution. 64
It is true, as alleged by petitioners, that broad constitutional
principles require the State to develop an independent national
economy effectively controlled by Filipinos; and to protect and/or
prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles — while
serving as judicial and legislative guides — are not in themselves
sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a "trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity" and the promotion of industries
"which are competitive in both domestic and foreign markets,"
thereby justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the exercise of legislative and judicial
powers is balanced by the adoption of the generally accepted
principles of international law as part of the law of the land and the
adherence of the Constitution to the policy of cooperation and
amity with all nations.
That the Senate, after deliberation and voting, voluntarily and
overwhelmingly gave its consent to the WTO Agreement thereby
making it "a part of the law of the land" is a legitimate exercise of its
sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal
hostility" in such exercise. It is not impossible to surmise that this
Court, or at least some of its members, may even agree with
petitioners that it is more advantageous to the national interest to
strike down Senate Resolution No. 97. But that is not a legal reason
to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of
our own judicial power and duty. Ineludably, what the Senate did
was a valid exercise of its authority. As to whether such exercise was
wise, beneficial or viable is outside the realm of judicial inquiry and
review. That is a matter between the elected policy makers and the
people. As to whether the nation should join the worldwide march
toward trade liberalization and economic globalization is a matter
that our people should determine in electing their policy makers.
After all, the WTO Agreement allows withdrawal of membership,
should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller
Megatrends, predicts an Asian Renaissance 65 where "the East will
become the dominant region of the world economically, politically
and culturally in the next century." He refers to the "free market"
espoused by WTO as the "catalyst" in this coming Asian ascendancy.
There are at present about 31 countries including China, Russia and
Saudi Arabia negotiating for membership in the WTO.
Notwithstanding objections against possible limitations on national
sovereignty, the WTO remains as the only viable structure for
multilateral trading and the veritable forum for the development of
international trade law. The alternative to WTO is isolation,
stagnation, if not economic self-destruction. Duly enriched with
original membership, keenly aware of the advantages and
disadvantages of globalization with its on-line experience, and
endowed with a vision of the future, the Philippines now straddles
the crossroads of an international strategy for economic prosperity
and stability in the new millennium. Let the people, through their
duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
THIRD DIVISION
G.R. No. 81490 August 31, 1988
HAGONOY WATER DISTRICT represented by its General Manager
CELESTINO S. VENGCO, petitioner,
vs.
THE HON. NATIONAL LABOR RELATIONS COMMISSION, EXECUTIVE
LABOR ARBITER VLADIMIR P.L. SAMPANG, DEPUTY SHERIFF JOSE A.
CRUZ and DANTE VILLANUEVA, respondents.
Mario S. Jugco for petitioner.
Renato C. Guevara for private respondent Villanueva.
FELICIANO, J.:
The present petition for certiorari seeks to annul and set aside: a)
the decision of the Labor Arbiter dated 17 March 1987 in NLRC Case
No. RAB-III-8-2354-85, entitled "Dante Villanueva versus LWA-
Hagonoy Waterworks District/Miguel Santos;" and b) the Resolution
of the National Labor Relations Commission dated 20 August 1987
affirming the mentioned decision.
Private respondent Dante Villanueva was employed as service
foreman by petitioner Hagonoy Water District ("Hagonoy") from 3
January 1977 until 16 May 1985, when he was indefinitely
suspended and thereafter dismissed on 12 July 1985 for
abandonment of work and conflict of interest.
On 14 August 1985, private respondent filed a complaint for illegal
dismissal, illegal suspension and underpayment of wages and
emergency cost of living allowance against petitioner Hagonoy with
the then Ministry of Labor and Employment, Regional Arbitration
Branch III, San Fernando, Pampanga.
Petitioner immediately moved for outright dismissal of the
complaint on the ground of lack of jurisdiction. Being a government
entity, petitioner claimed, its personnel are governed by the
provisions of the Civil Service Law, not by the Labor Code, and
protests concerning the lawfulness of dismissals from the service fall
within the jurisdiction of the Civil Service Commission, not the
Ministry of Labor and Employment. Petitioner cited Resolution No.
1540 of the Social Security Commission cancelling petitioner's
compulsory coverage from the system effective 16 May 1979
"considering the rulings that local water districts are
instrumentalities owned and controlled by the government and that
their officers and employees are government employees." In
opposing the motion, private respondent Villanueva contended that
local water districts, like petitioner Hagonoy, though quasi-public
corporations, are in the nature of private corporations since they
perform proprietary functions for the government.
The Labor Arbiter proceeded to hear and try the case and, on 17
March 1986, rendered a Decision in favor of the private respondent
and against petitioner Hagonoy. The dispositive part of the decision
read:
WHEREFORE, premises considered, respondents are hereby ordered
to reinstate petitioner immediately to his former position as Service
Foreman, without loss of seniority rights and privileges, with full
backwages, including all benefits provided by law, from the date he
was terminated up to his actual date of reinstatement.
In addition, respondents are hereby ordered to pay the petitioner
the amount of P4,927.50 representing the underpayments of wages
from July 1983 to May 16, 1985.
SO ORDERED.
On appeal, the National Labor Relations Commission affirmed the
decision of the Labor Arbiter in a Resolution dated 20 August 1987.
The petitioner moved for reconsideration, insisting that public
respondents had no jurisdiction over the case. Meanwhile, a Writ of
Execution was issued by the Labor Arbiter on 16 November 1987.
The writ was enforced by garnishing petitioner Hagonoy's deposits
with the Planters Development Bank of Hagonoy.
Petitioner then filed a Motion to Quash the Writ of Execution with
Application for Writ of Preliminary Injunction arguing that the writ
was prematurely issued as its motion for reconsideration had not
yet been resolved. By Resolution dated 10 December 1987, public
respondent Commission denied the application for a preliminary
injunction. The motion to quash was similarly denied by the
Commission which directed petitioner to reinstate immediately
private respondent and to pay him the amount of P63,577.75 out of
petitioner's garnished deposits.
Hence, the instant petition.
The only question here in whether or not local water districts are
government owned or controlled corporations whose employees
are subject to the provisions of the Civil Service Law. The Labor
Arbiter asserted jurisdiction over the alleged illegal dismissal of
private respondent Villanueva by relying on Section 25 of
Presidential Decree No. 198, known as the "Provincial Water
Utilities Act of 1973" which went into effect on 25 May 1973, and
which provides as follows:
Exemption from Civil Service. — The district and its employees,
being engaged in a proprietary function, are hereby exempt from
the provisions of the Civil Service Law. Collective Bargaining shall be
available only to personnel below supervisory levels: Provided,
however, That the total of all salaries, wages, emoluments, benefits
or other compensation paid to all employees in any month shall not
exceed fifty percent (50%) of average net monthly revenue, said net
revenue representing income from water sales and sewerage
service charges, lease pro-rata share of debt service and expenses
for fuel or energy for pumping during the preceding fiscal year.
The Labor Arbiter however failed to take into account the provisions
of Presidential Decree No. 1479, which went into effect on 11 June
1978. P.D. No. 1479 wiped away Section 25 of P.D. 198 quoted
above, and Section 26 of P.D. 198 was renumbered as Section 25 in
the following manner:
Section 26 of the same decree [P.D. 198] is hereby amended to read
as Section 25 as follows:
Section 25. Authorization. — The district may exercise all the
powers which are expressly granted by this Title or which are
necessarily implied from or incidental to the powers and purposes
herein stated. For the purpose of carrying out the objectives of this
Act, a district is hereby granted the power of eminent domain, the
exercise thereof shall, however, be subject to review by the
Administration.
Thus, Section 25 of P.D. 198 exempting the employees of water
districts from the application of the Civil Service Law was removed
from the statute books.
This is not the first time that officials of the Department of Labor
and Employment have taken the position that the Labor Arbiter
here adopted. In Baguio Water District vs. Cresenciano B. Trajano,
etc. et al., 1 the petitioner Water District sought review of a decision
of the Bureau of Labor Relations which affirmed that of a Med-
Arbiter calling for a certification election among the regular rank-
and-file employees of the Baguio Water District (BWD). In granting
the petition, the Court said:
The Baguio Water District was formed pursuant to Title II-Local
Water District Law of P.D. No. 198, as amended, The BWD is by Sec.
6 of that decree 'a quasi-public corporation performing public
service and supplying public wants.
A part of the public respondent's decision rendered in September,
1983, reads in part:
We find the appeal [of the BWD] to be devoid of merit. The records
show that the operation and administration of BWD is governed and
regulated by special laws, that is, Presidential Decrees Nos. 198 and
1479 which created local water districts throughout the country.
Section 25 of Presidential Decree (PD) 198 clearly provides that the
district and its employees shall be exempt from the provisions of the
Civil Service Law and that its personnel below supervisory level shall
have the right to collectively bargain. Contrary to appellant's claim,
said provision has not been amended much more abrogated
expressly or impliedly by PD 1479 which does not make mention of
any matter on Civil Service Law or collective bargaining. (Rollo, p.
590.)
We grant the petition for the following reasons:
1. Section 25 of P.D. No. 198 was repealed by Sec. 3 of P.D.
No. 1479; Sec. 26 of P.D. No. 198 was amended to read as Sec. 25 by
Sec. 4 of P.D. No. 1479. The amendatory decree took effect on June
11, 1978.
xxx xxx xxx
3. The BWD is a corporation created pursuant to a special law —
P.D. No. 198, as amended. As such its officers and employees are
part of the Civil Service. (Sec. 1, Art. XII-B, [1973] Constitution; P.D.
No. 686.)
The broader question of whether employees of government owned
or controlled corporations are governed by the Civil Service Law and
Civil Service Rules and Regulations was addressed by this Court in
1985 in National Housing Corporation vs. Juco. 2 After a review of
constitutional, statutory and case law on the matter, the Court,
through Mr. Justice Gutierrez, held:
There should no longer be any question at this time that employees
of government-owned or controlled corporations are governed by
the civil service law and civil service rules and regulations.
Section 1. Article XII-B of the [1973] Constitution specifically
provides:
The Civil Service embraces every branch, agency, subdivision, and
instrumentality of the Government, including every government-
owned or controlled corporation. ...
The 1935 Constitution had a similar provision in its Section 1, Article
XII which stated:
A Civil Service embracing all branches and subdivisions of the
Government shall be provided by law.
The inclusion of "government-owned or controlled corporations"
within the embrace of the civil service shows a deliberate effort of
the framers to plug an earlier loophole which allowed government-
owned or controlled corporations to avoid the full consequences of
the all encompassing coverage of the, civil service system. The same
explicit intent is shown by the addition of "agency" and
"instrumentality" to branches and subdivisions of the Government.
All offices and firms of the government are covered.
The amendments introduced in 1973 are not Idle exercises or
meaningless gestures. They carry the strong message that civil
service coverage is broad and all-embracing insofar as employment
in the government in any of its governmental. or corporate arms is
concerned.
xxx xxx xxx
Section I of Article XII-B, [1973] Constitution uses the word "every"
to modify the phrase "government-owned or controlled
corporation."
"Every" means each one of a group, without exception. It means all
possible and all, taken one by one. Of course, our decision in this
case refers to a corporation created as a government-owned or
controlled entity. It does not cover cases involving private firms
taken over by the government in foreclosure or similar proceedings.
We reserve judgment on these latter cases when the appropriate
controversy is brought to this Court. 3
In Juco, the Court spelled out the law on the issue at bar as such law
existed under the 1973 Constitution and the Provisional
Constitution of 1984, 4 until just before the effectivity of the 1987
Constitution. Public respondent Commission, in confirming the
Labor Arbiter's assumption of jurisdiction over this case, apparently
relied upon Article IX (B), Section 2 (1) of the 1987 Constitution,
which provides that:
[T]he Civil Service embraces ... government owned or controlled
corporations with original charters. (Emphasis supplied)
The NLRC took the position that although petitioner Hagonoy is a
government owned or controlled corporation, it had no original
charter having been created simply by resolution of a local
legislative council. The NLRC concluded that therefore petitioner
Hagonoy fell outside the scope of the civil service.
At the time the dispute in the case at bar arose, and at the time the
Labor Arbiter rendered his decision (i.e., 17 March 1986), there is no
question that the applicable law was that spelled out in National
Housing Corporation vs. Juco (supra) and Baguio Water District vs.
Cresenciano B. Trajano (supra) and that under such applicable law,
the Labor Arbiter had no jurisdiction to render the decision that he
in fact rendered. By the time the public respondent Commission
rendered its decision of 20 August 1987 which is here assailed, the
1987 Constitution had already come into effect. 5 There is,
nonetheless, no necessity for this Court at the present time and in
the present case to pass upon the question of the effect of the
provisions of Article DC (B), Section 2 (1) of the 1987 Constitution
upon the pre-existing statutory and case law. For whatever that
effect might be, — and we will deal with that when an appropriate
case comes before the Court — we believe and so hold that the
1987 Constitution did not operate retrospectively so as to confer
jurisdiction upon the Labor Arbiter to render a decision which,
under the law applicable at the time of the rendition of such
decision, was clearly outside the scope of competence of the Labor
Arbiter. Thus, the respondent Commission had nothing before it
which it could pass upon in the exercise of its appellate jurisdiction.
For it is self-evident that a decision rendered by the Labor Arbiter
without jurisdiction over the case is a complete nullity, vesting no
rights and imposing no liabilities.

ACCORDINGLY, the Petition for certiorari is GRANTED. The decision

of the Labor Arbiter dated 17 March 1986, and public respondent
Commission's Resolution dated 20 August 1987 and all other
Resolutions and Orders issued by the Commission in this case
subsequent thereto, are hereby SET ASIDE. This decision is,
however, without prejudice to the right of private respondent
Villanueva to refile, if he so wishes, this complaint in an appropriate
forum. No pronouncement as to costs.

SO ORDERED.
EN BANC
G.R. No. 79543 October 16, 1996
JOSE D. FILOTEO, JR., petitioner,
vs.
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES,
respondents.
PANGANIBAN, J.:p
A person under investigation for the commission of an offense is
constitutionally guaranteed certain rights. One of the most
cherished of these is the right "to have competent and independent
counsel preferably of his choice". The 1987 Constitution, unlike its
predecessors, expressly covenants that such guarantee "cannot be
waived except in writing and in the presence of counsel". In the
present case, petitioner claims that such proscription against an
uncounselled waiver of the right to counsel is applicable to him
retroactively, even though his custodial investigation took place in
1983 — long before the effectivity of the new Constitution. He also
alleges that his arrest was illegal, that his extrajudicial confession
was extracted through torture, and that the prosecution's evidence
was insufficient to convict him. Finally, though not raised by
petitioner, the question of what crime —- brigandage or robbery —
was committed is likewise motu proprio addressed by the Court in
this Decision.
Challenged in the instant amended petition is the Decision 1 of
respondent Sandiganbayan 2 in Criminal Case No. 8496
promulgated on June 19, 1987 convicting petitioner of brigandage,
and the Resolution 3 promulgated on July 27, 1987 denying his
motion for reconsideration.
The Facts
Petitioner Jose D. Filoteo, Jr. was a police investigator of the
Western Police District in Metro Manila, an old hand at dealing with
suspected criminals. A recipient of various awards and
commendations attesting to his competence and performance as a
police officer, he could not therefore imagine that one day he would
be sitting on the other side of the investigation table as the
suspected mastermind of the armed hijacking of a postal delivery
van.
Along with his co-accused Martin Mateo, Jr. y Mijares, PC/Sgt.
Bernardo Relator, Jr. y Retino, CIC Ed Saguindel y Pabinguit, Ex-
PC/Sgt. Danilo Miravalles y Marcelo and civilians Ricardo Perez,
Reynaldo Frias, Raul Mendoza, Angel Liwanag, Severino Castro and
Gerardo Escalada, petitioner Filoteo was charged in the following
Information: 4
That on or about the 3rd day of May, 1982, in the municipality of
Meycauayan, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, two of whom
were armed with guns, conspiring, confederating together and
helping one another, did then and there wilfully, unlawfully and
feloniously with intent of gain and by means of violence, threat and
intimidation, stop the Postal Delivery Truck of the Bureau of Postal
while it was travelling along the MacArthur Highway of said
municipality, at the point of their guns, and then take, rob and carry
away with them the following, to wit:
1) Postal Delivery Truck
2) Social Security System Medicare Checks and Vouchers
3) Social Security System Pension Checks and Vouchers
4) Treasury Warrants
5) Several Mail Matters from abroad
in the total amount of P253,728.29 more or less, belonging to US
Government Pensionados, SSS Pensionados, SSS Medicare
Beneficiaries and Private Individuals from Bulacan, Pampanga,
Bataan, Zambales and Olongapo City, to the damage and prejudice
of the owners in the aforementioned amount.
Contrary to law
On separate dates, accused Filoteo, Mateo, Saguindel, Relator and
Miravalles, assisted by their respective counsel, pleaded not guilty.
Their co-accused Perez, Frias, Mendoza, Liwanag, Castro and
Escalada were never arrested and remained at large. Accused
Mateo escaped from police custody and was tried in absentia in
accordance with Article IV, Section 19 of the 1973 Constitution.
Accused Saguindel and Relator failed to appear during the trial on
February 21, 1985 and on March 31, 1986, respectively, and were
thus ordered arrested but remained at large since then. Like in the
case of Mateo, proceedings against them were held in absentia. 5
Only Filoteo filed this petition, after the respondent Court rendered
its assailed Decision and Resolution.
Before trial commenced and upon the instance of the prosecution
for a stipulation of facts, the defense admitted the following: 6
The existence of the bound record of Criminal Case No. 50737-B-82,
consisting of 343 pages from the Bulacan CFI (Exhibit A); in 1982 or
thereabouts, accused Bernardo Relator was a PC Sergeant at Camp
Bagong Diwa, Bicutan, Metro Manila; as such PC Sergeant, accused
Relator was issued a service revolver, Smith & Wesson Revolver, 32
(sic), with Serial No. 11707 (Exhibit B) and holster (Exhibit B-1) with
six (6) live ammo (Exhibit B-2); in 1982 or thereabouts, accused
Eddie Saguindel was a PC Constable First Class; on May 30, 1982,
accused Saguindel, together with accused Relator and Danilo
Miravalles, a former PC Sergeant, was invited for investigation in
connection with the hijacking of a delivery van by the elements of
the Special Operations Group, PC, and the three availed of their
right to remain silent and to have counsel of their choice, as shown
by their Joint Affidavit (Exhibit A-20); and the existence of the sworn
statement executed by accused Martin Mateo (Exhibit A-11) as well
as the Certification dated May 30, 1982, subject to the qualification
that said document was made under duress.
The prosecution sought to prove its case with the testimonies of
Bernardo Bautista, Rodolfo Miranda, Capt. Rosendo Ferrer, M/Sgt.
Noel Alcazar and Capt. Samuel Pagdilao, Jr. 6-a and the submission
of Exhibits A to K. In their defense, accused Filoteo and Miravalles
presented their respective testimonies plus those of Gary Gallardo
and Manolo Almogera. Filoteo also submitted his Exhibits 1-14-
Filoteo, but Miravalles filed no written evidence. Thereafter, the
prosecution proffered rebuttal evidence and rested with the
admission of Exhibits A-16-a, A-31 and L.
Evidence for the Prosecution
At about 6:30 in the morning of May 3, 1982, Bureau of Post mail
van no. MVD 02 left San Fernando, Pampanga to pick up and deliver
mail matters to and from Manila. On board the vehicle were Nerito
Miranda, the driver, and two couriers named Bernardo Bautista and
Eminiano Tagudar who were seated beside the driver. They arrived
at around 9:40 that morning at the Airmail Distribution Center of
the Manila International Airport where they were issued waybills 7
for the sacks of mail they collected. They then proceeded to the
Central Post Office where they likewise gathered mail matters
including 737 check letters 8 sent by the United States Embassy. All
the mail matters were placed inside the delivery van, and its door
padlocked.
As they had to deliver mail matters to several towns of Bulacan,
they took the MacArthur Highway on the return trip to Pampanga.
When they reached Kalvario, Meycauayan, Bulacan at about 4:30 in
the afternoon, an old blue Mercedes Benz sedan9 overtook their
van and cut across its path. The car had five (5) passengers — three
seated in front and two at the back. The car's driver and the
passenger beside him were in white shirts; the third man in front
and the person immediately behind him were both clad in fatigue
uniforms, while the fifth man in the back had on a long-sleeved
shirt. 10
Two of the car passengers aimed an armalite and a hand gun at
driver Nerito Miranda as someone uttered, "Are you not going to
stop this truck?" 11 Frightened, Miranda pulled over and stopped
the van's engine. Alighting from the car, the armed group identified
themselves as policemen. 12 They ordered the postal employees to
disembark from the van. As he stepped out of the van, Miranda took
the ignition key with him, but when threatened, he surrendered it to
one of the car passengers. 13 The three postal employees were then
ordered to board the Benz.
As he was about to enter the car, Bautista looked back and saw one
of the malefactors, who turned out to be Reynaldo Frias, going up
the van. Inside the car, the three delivery employees were ordered
to lower their heads. They sat between two of their captors at the
back of the car while two others were in front. Later, Nerito Miranda
asked permission to straighten up as he was feeling dizzy for lack of
air. As he stretched, he caught a glimpse of the pimply face of the
man to his left. He also recognized the driver who had glanced back.
These men turned out to be Angel Liwanag and Reynaldo Frias,
respectively. 14
As the car started moving, Bautista complained about feeling
"densely confined." We was allowed to raise his head but with eyes
closed. However, he sneaked a look and recognized the driver of the
car as Raul Mendoza and the fellow beside him who poked a
"balisong" at him as Angel Liwanag. The man in uniform on the front
seat was Eddie Saguindel. Earlier, as he was about to enter the car,
Bautista looked back and recognized Frias. 15 These incidents
yielded the pieces of information critical to the subsequent
identification of Mendoza, Liwanag, Saguindel and Frias in the line-
up of suspects at Camp Crame later on.
The car seemed to move around in circles. When it finally came to a
stop, the captured men discovered that they were along Kaimito
Road in Kalookan City They were made to remove their pants and
shoes and then told to run towards the shrubs with their heads
lowered. Upon realizing that the hijackers had left, they put on their
pants and reported the incident to the Kalookan Police Station.
The Security and Intelligence Unit of the Bureau of Posts recovered
the postal van at the corner of Malindang and Angelo Streets, La
Loma, Quezon City on May 4, 1982. Discovered missing were several
mail matters, 16 including checks and warrants, along with the van's
battery, tools and fuel. 17
In a letter-request dated May 6, 1982 to then Col. Ramon Montaño,
then Postmaster General Roilo S. Golez sought the assistance of the
Special Operations Group (SOG) of the Philippine Constabulary in
the investigation of the hijacking incident. 18 Responding to the
request, the SOG, which was tasked to detect, investigate and
"neutralize" criminal syndicates in Metro Manila and adjacent
provinces, organized two investigative teams. One group was led by
Capt. Rosendo Ferrer and the other by 1st Lt. Samuel Pagdilao.
Initially, they conducted a "massive intelligence build-up" to monitor
the drop points where the stolen checks could be sold or
negotiated.
On May 28, 1982, the SOG received a tip from a civilian informer
that two persons were looking for buyers of stolen checks. Capt.
Ferrer requested the informer to arrange a meeting with them. The
meeting materialized at about 9:00 P.M. of May 29, 1982 at the
Bughaw Restaurant in Cubao, Quezon City. With cash on hand, Capt.
Ferrer posed as the buyer. The informer introduced him to Rey Frias
and Rafael Alcantara. Frias in turn showed Capt. Ferrer a sample
Social Security System (SSS) pension check and told him that the
bulk of the checks were in the possession of their companions in
Obrero, Tondo, Manila. After some negotiations, they agreed to
proceed to Tondo. Then as they boarded a car, Capt. Ferrer
introduced himself and his companions as lawmen investigating the
hijacking incident. Shocked and distressed, Frias calmed down only
when assured that his penalty would be mitigated should he
cooperate with the authorities. Frias thus volunteered to help crack
the case and lead the SOG team to Ricardo Perez and Raul
Mendoza.
Capt. Ferrer instructed Lt. Pagdilao, his assistant operations officer
who was in another car during the mission, to accompany Frias to
Obrero Tondo while he escorted Alcantara to their headquarters at
Camp Crame. On the way to the headquarters, Alcantara denied
participation in the hijacking although he admitted living with
Martin Mateo who allegedly was in possession of several checks.
Alcantara was turned over to the investigation section of the SOG
for further questioning.
Meanwhile, Lt. Pagdilao's group was able to corner Ricardo Perez in
his house in Tondo. Confronted with the hijacking incident, Perez
admitted participation therein and expressed disappointment over
his inability to dispose of the checks even after a month from the
hijacking. He surrendered the checks in his possession to Lt.
Pagdilao.'s. 19
An hour and a half later, Capt. Ferrer received information over their
two-way radio that Ricardo Perez and Raul Mendoza were in Lt.
Pagdilao's custody. Capt. Ferrer ordered that, instead of returning to
headquarters, Lt. Pagdilao and his companions should meet him in
Quirino, Novaliches to apprehend Martin Mateo. They met at the
designated place and proceeded to Gulod, Novaliches arriving there
at about 10:30 P.M. of May 29, 1982.
Walking atop a ricefield dike to the house of Mateo, they noticed
two men heading in their direction. Perez identified them as Martin
Mateo and Angel Liwanag. The latter threw something into the
ricefield which, when retrieved, turned out to be bundles of checks
wrapped in cellophane inside a plastic bag. 20 As the two were
about to board the SOG teams's car, Mateo said, "Sir, Kung baga sa
basketball, talo na kami. Ibibigay ko yong para sa panalo. Marami pa
akong tseke doon sa bahay ko, sir, kunin na natin para di na natin
babalikan." 21 Capt. Ferrer accompanied Mateo to his house where
they retrieved several other checks in another plastic bag.
On the way to the SOG headquarters in Camp Crame, Mateo and
Liwanag admitted participation in the postal hijacking. At a
confrontation with Perez and Mendoza, all four of them pointed to
petitioner, Jose D. Filoteo, Jr., as the mastermind of the crime.
Consequently, Capt. Ferrer directed Lt. Pagdilao to accompany
Mateo to the house of petitioner in Tondo, Manila. The lawmen
found petitioner at home. Upon being invited to Camp Crame to
shed light on his participation in the hijacking, petitioner was
dumbfounded (" parang nagulat). Pursuant to standard operating
procedure in arrests, petitioner was informed of his constitutional
rights, 22 whereupon they proceeded to Camp Crame. However, the
group, including petitioner, returned to the latter's place to recover
the loot. It was "in the neighborhood," not in petitioner's house,
where the authorities located the checks. 23
The authorities confronted Filoteo about his participation in the
hijacking, telling him that Frias, Mendoza and Perez had earlier
volunteered the information that petitioner furnished the Benz used
in the hijacking. Thereupon, Filoteo admitted involvement in the
crime and pointed to three other soldiers, namely, Eddie Saguindel,
Bernardo Relator and Jack Miravalles (who turned out to be a
discharged soldier), as his confederates. At 1:45 in the afternoon of
May 30, 1982, petitioner executed a sworn statement in Tagalog
before M/Sgt. Arsenio C. Carlos and Sgt. Romeo P. Espero which,
quoted in full, reads as follows:
BABALA — Nais kong ipaalam sa iyo, Patrolman Filoteo, na ang
dahilan ng pagsisiyasat na ito ay tungkol sa isang kasong Robbery-in-
Band/Hi-Jacking na naganap noong ika-3 ng Mayo 1982 doon sa
Meycauayan, Bulacan, mga bandang alas-4:00 ng hapon, humigit-
kumulang, kung saang maraming tsekeng US, tseke ng BIR at iba
pang mga personal na tseke ang nabawi mula sa iyo. Nais ko ring
ibigay sa iyo ang babala alinsunod sa mga isinasaad ng Section 20,
Article IV ng Bagong Saligang Batas ng Republika ng Pilipinas, kagaya
ng mga sumusunod:
a. Na ikaw ay may karapatang tumahimik;
b. Na ikaw ay may karapatang kumuha ng isang abugadong
sarili mong pili upang may magpapayo sa iyo habang ikaw ay
sinisiyasat;
c. Na ikaw ay may karapatang huwag sumagot sa mga
katanungang maaring makasira sa iyo sa dahilang anumang iyong
isasalaysay ay maaring gamitin pabor or laban sa iyo sa
kinauukulang hukuman;
d. Na kung ikaw ay walang maibabayad sa isang abugado, ako
mismo ang makipag-ugnayan sa CLAO-IBP upang ikaw ay magkaroon
ng isang abugadong walang bayad.
1. TANONG: — Ang mga bagay-bagay bang akin nang
naipaliwanag sa iyo ay iyong lubos na naiintindihan at nauunawaan?
SAGOT: —Opo.
2. T: — Handa mo bang lagdaan ang ilalim ng katanungan at
sagot na ito bilang katibayan na iyo ngang naiintindihan ang iyong
mga karapatan at gayun na rin sa dahilan ng pagsisiyasat na ito, at
ikaw din ay nakahanda ngang magbigay ng isang malaya at kusang-
loob na salaysay, sumagot sa mga katanungan at sumusumpang
lahat ng iyong isasalaysay ay pawang mga katotohanan lamang?
S: — Opo, pipirma ako Ser.
(Sgd.)
JOSE D. FILOTEO
(Affiant)
MGA SAKSI:
(Sgd.) (Sgd.)
ROMEO P. ESPERO THERESA L. TOLENTINO
Ssg., PC C1C, WAC (PC)
3. T: — Maari bang sabihin mong mull ang iyong buong
pangalan, edad at iba pang bagay-bagay na maaring
mapagkakikilalanan sa iyo?
S: — Jose Filoteo y Diendo, 30-anyos, may-asawa, isang Patrolman
ng Western Police District, Metropolitan Police Force na
kasalukuyang nakatalaga sa General Assignment Section,
Investigation Division ng naturang Distrito ng Pulisya at
kasalukuyang nakatira sa No. 810 Cabesas St., Dagupan, Tondo,
Manila.
4. T: — Kailan ka pa na-appoint sa service bilang isang
Kabatas?
S: — Noon pong October 1978, hindi ko maalaala ang exactong
petsa, noong ako ay mapasok sa serbisyo.
5. T: — Kailan ka pa naman na-assign sa GAS, WPD, MPF?
S: — Noon lamang pong January 1982.
6. T: — Patrolman Filoteo, ikaw ba ay tubong saang bayan,
lungsod or lalawigan?
S: — Pagkakaalam ko sa tatay ko ay Bulacan samantalang ang aking
ina naman ay Bisaya, pero ako ay ipinanganak na sa Maynila noon
July 17, 1951.
7. T: — Ano naman ang natapos mong kurso sa pag-aaral?
S: — Undergraduate ako ng BS Criminology sa PCCr, dahil hindi ko
natapos ang second semester ng 4th year ko.
8. T: — Ano naman ang iyong specific designation sa GAS, ID,
WPD-MPF?
S: — Sa Follow-Up Unit ako.
9. T: — At bilang miyembro ng follow-up unit no GAS, ano
naman ang iyong mga specific duties?
S: — Kami po ang magsasagawa ng follow-up kung may mga at-large
sa mga suspects namin sa mga kasong hawak ng investigation.
10. T: — Noong ika-3 ng Mayo 1982, mga bandang alas-4:00 ng
hapon humigit-kumulang, saan ka naroroon at ano ang iyong
ginagawa?
S: — Nasa Plaza Lawton ho kami, eh, at inaantay na namin iyong hi-
nayjack namin na Philippine Mail delivery van.
11. T: — Wika mo'y kami, sinu-sino ang tinutukoy mong mga
kasamahan?
S: — Si Carding Perez, ho; si Junior ho (Affiant pointed to Martin
Mateo, Jr. who was seated in the investigation room and asked the
name and was duly answered: Martin Mateo, Jr.); si Rey Frias, Raul
Mendoza; Angelo Liwanag at ang mga taga LRP ng PC Brigade na
sina Sgt. Ed Saguindel, Sgt. Dan Miravales at isa pang Sergeant na
ang alam ko lang sa kanya ay JUN ang tawag namin. Walo (8)
(corrected and initialled by affiant to read as "SIYAM [9]") kaming
lahat doon noon at ang mga gamit naman naming kotse noon ay ang
kotse ng kumpare kong si Rudy Miranda na isang Mercedes Benz na
may plakang NMJ-659 kung saang ang driver namin noon ay si Raul
Mendoza (corrected and initialled by affiant to read as "AKO") at
ang mga kasama naman naming sakay ay sina Angelo Liwanag, Sgt.
Ed Saguindel at Sgt. Jun na parehong taga-LRP (affiant added and
initialled this additional fact: "AT RAUL MENDOZA"). Ang isang kotse
namang gamit namin ay pag-aari daw ng pinsan ni Carding Perez na
kanya na rin mismong minaneho na isang Lancer na dirty-white ang
kulay at ang mga sakay naman ni Carding Perez ay sina Junior
Mateo, Rey Frias at Sgt. Dan Miravalles ng LRP rin. Pero may kasama
pa kaming contact ni Carding Perez na taga-loob ng Post Office na
sina Alias NINOY na isang dispatcher at Alias JERRY, dahil ang
mastermind dito sa trabahong ito ay si Carding PEREZ at kami
naman ng mga sundalong taga-LRP ay kanila lamang inimporta
upang umeskort sa kaniia sa pag-hijack ng delivery van.
12. T: — Anong oras naman noong umalis ang delivery van ng
Post Office patungong norte?
S: — Kung hindi ako nagkakamali ay nasa pagitan na noon ng alas-
4:00 hanggang alas-5:00 ng hapon.
13. T: — Isalaysay mo nga ng buong-buo kung ano ang mga
naganap noong hapon na iyon?
S: — Noon pong lumakad na ang delivery van ng Central Post Office,
sinundan na namin, una ang van, sumunod ang Lancer at huli ang
Mercedes Benz namin. Pagdating namin sa Malinta, Valenzuela
Metro Manila ay nagpalit kami ng puwesto sa pagsunod, van naman
ngayon, sunod ang Mercedes Benz at huli na ang Lancer. Noong
makapasok na kami ng boundary ng Meycauayan, Bulacan ay
kumuha na kami ng tiyempo at noon makatiyempo kami ay kinat
namin ang delivery van. Tumigil naman ito at bumaba kaagad sina
Sgt. Ed Saguindel at Sgt. Jun ng LRP datiil sila noon ang may hawak
ng kanilang Armalite Rifle pero may service pa silang maiksing baril.
Pinababa nila ang tatlong maydala ng delivery van at pinasakay sa
Mercedes Benz, habang nakatutok ang kanilang mga baril sa kanila.
Ako naman ay bumaba na sa aming kotse at sumakay ng delivery
van at ako na mismo ang nagmaneho at sinamahan naman ako nina
Junior Mateo at si Rey Frias, tatlo (3) rin kaming pumalit sa puwesto
noong tatlong (3) taga-Post Office na maydala ng delivery van. Nag-
Utturn (sic) kami ngayon at ibinalik na namin sa Manila ang van.
Iyong Mercedes Benz na minaneho pa rin ni Raul Mendoza ay
dumeretso pa norte samantalang ang Lancer naman ay nag-U-turn
din at sumunod sa amin. Noong makarating na kami sa Malinta,
Valenzuela, Metro Manila ay inunahan na kami ng Lancer at iyon na
nga, parang follow the leader na dahil siya na noon ang aming guide.
14. T: — Ipagpatuloy mo ang iyong pagsasalaysay?
S: — Dumeretso kami ngayon sa may Obrero, sa bahay mismo nina
Carding Perez, at noong nakarating na kami roon ay iniyatras ko na
ang van sa kaniling garahe at doon ay ibinaba namin lahat ang mga
duffle bag, hindi ko na ho alam kung ilan lahat iyon, na siyang laman
ng delivery van at pagkatapos ay umalis kaming muli ng mga kasama
ko rin sa van papuntang Quezon City kung saan namin inabandon
ang delivery van. Sa Retiro ho yata iyong lugar na iyon, kung hindi
ako nagkakamali.
15. T: — Ano ang mga sumunod na nangyari?
S: — Sumakay kami ngayon ng taksi at bumalik na kami kina Carding
Perez sa may bahay nila sa Obrero, Tondo, Manila at inabutan na
namin sila na nagkakarga na noong mga duffle bag sa (sic), madilim
na ho noon, sa isang kotseng mamula-mula o orange na Camaro at
isa pang Mercedes Benz na brown, dahil ang Lancer ay isinoli na raw
nila sa may-ari. Dinala nila ngayon ang mga duffle bag sa Bocaue,
Bulacan, iyon kasi ang usapan namin noon dahil sumilip lamang ako
noon at kasama ko si Carding Perez, kami naman ngayon ay
pumunta sa bahay nina Rudy Miranda sa San Marcelino, Malate,
Manila na sakay ng isang Toyota Corona na brown na si Carding
Perez ang nagmaneho. Pagdating namin doon sa kina Rudy Miranda
ay naroon na rin noon ang Mercedes Benz na ginamit namin, pero
wala na ang crew ng delivery van dahil ibinaba at iniwanan daw nila
sa Caloocan City. Ang naroroon na lamang noon ay sina Angelo
Liwanag, si Raul Mendoza, si Sgt. Ed Saguindel at si Sgt. Jun na
parehong taga-LRP. Naiwan na noon ang Mercedes Benz namin
doon kina Rudy Miranda at iniwan na rin ang susi doon sa kamag-
anak, dahil hindi nila alam ang trabahong ito. Sumakay na iyong apat
naming kasama sa Toyota Corona na sakay namin at inihatid namin
sina Sgt. Saguindel at Sgt. Jun doon sa tinitirhan nitong huling
nabanggit na sundalo doon sa malapit sa Del Pan Bridge sa may
Recto Avenue sa San Nicolas yata iyon sa Manila. Kami naman
ngayong apat, sina Carding Perez, Angelo Liwanag at si Raul
Mendoza ay tumuloy na sa Bocaue, Bulacan. Dumaan kami sa North
Diversion Road at paglabas namin sa exit papuntang Bocaue,
Bulacan ay hindi na kalayuan doon, hindi ko alam ang lugar pero
alam kong puntahan. Bahay daw yata ng kamag-anak ni Carding
Perez iyon pero hindi ko alam ang pangalan. Naroon na ngayon ang
buong tropa, maliban sa mga dalawang sundalong naihatid na
namin sa may Manila, at may mga nadagdag pang ibang mukha pero
hindi ko ito mga kakilala. Si JACK o Sgt. Dan Miravalles ay naroon din
noon. Kumain kami, pagkatapos ay nagbukasan na ng mga duffle
bag. Iyon na nga, nakita na namin ang mga tsekeng ito, (Affiant
pointed to the checks he voluntarily surrendered) at aming
inihiwalay ngayon sa mga sulat na naroon na sinunog lahat
pagkatapos doon sa bahay ni Junior Mateo sa Novaliches. Di
magdamag ngayon ang trabaho namin, kinabukasan ay kanya-
kanyang uwian na, pagkatapos ay pahinga. Kinabukasan mull, gabi,
inilipat na namin doon sa bahay ni Junior Mateo ang mga tsekeng
ito (Affiant again referred to said checks). Isinakay namin noon sa
isang cargo truck na pag-aari din daw nina Carding. lyong mga
tsekeng iyan ngayon ay nakalagay noon doon sa isang sikretong
compartment sa gitna ng truck, doon ba sa may chassis. Sikretong
compartment iyon, na mahirap mahalata.
16. T: — Ikaw ba naman ay mayroong dalang baril noon at
kung ganoon, sabihin mo nga kung anong uring baril iyon?
S: — Wala po akong baril, Ser.
17. T: — Paano naman napunta ang mga tsekeng ito (the
checks recovered from the Affiant was referred to) sa iyo?
S: — E, di ganoon na nga he, habang tumatagal ay umiinit ang
situwasyon sa aming grupo, dahil iyong partehan sana namin ay
puro pangako ang nangyari. Kaya napagpasyahan namin na hatiin na
lamang iyong mga tseke upang walang onsehan sa amin. Ito ngayon
ay parte namin nina Sgt. Ed Saguindel, Sgt. Dan Miravalles Alias JACK
at ni Sgt. Jun, dahil noong una ay doon muna sa amin ito nakatago
(The checks recovered from the Affiant was referred to). Pero
habang tumatagal ay umiinit at nalaman namin pati na may alarma
na, kaya't inilipat namin doon sa may Raxa Bago sa may likod ng
Alhambra Cigar & Cigarette Factory sa Tondo, Manila at akin
munang ipinatago sa isang kumare ko doon, pansamantala, pero
hindi alam nitong kumare ko ang laman noon dahil mahigpit kong
ipinagbilin na huwag nilang bubuksan. Doon na rin namin kinuha
iyon noong isurender ko ang mga tsekeng ito kagabi, at hanggang sa
kinuha na namin ang supot na ito (the checks placed in a plastic bag
was again referred to) ay wala pa rin kamalay- malay ang kumare ko.
18. T: — Iyong sinasabi mong mga kontak nina Carding Perez sa
Central Post Office, mga kakilala mo rin ba ang mga ito?
S: — Iyong araw lamang na iyon ko sila nakita, dahil maghapon ko
noon silang nakikita, itong si Alias NINOY lamang ang dispatcher,
dahil palabas-labas siya noon at nakikipag-usap kina Carding Perez,
Raul Mendoza at saka si Rey Frias. Makikilala ko itong si Alias NINOY
kung makita ko siyang muli.
19. T: — Sino naman ang kumontak sa iyo upang sumama sa
trabahong ito?
S: — Si Junior Mateo po, ipinakilala niya ako kina Carding at sa
buong tropa na namin.
20. T: — Pansamantala ay wala na muna akong itatanong pa sa
iyo, mayroon ka bang nais na idagdag, bawasin o palitan kaya sa
salaysay na ito?
S: — Wala na po.
21. T: — Handa mo bang lagdaan ang iyong salaysay na ito
bilang patotoo sa katotohanan nito nang hindi ka pinilit, sinaktan or
pinangakuan kaya ng anuman upang lumagda lamang?
S: — Opo.
WAKAS NG SALAYSAY: . . . ./ac
(Sgd)
JOSE D. FILOTEO
MGA SAKSI SA LAGDA:
(Sgd.)
SSG ROMEO P. ESPERO PC
(Sgd.)
C1C THERESA TOLENTINO WAC (PC) 24
Petitioner executed two other documents on the same day, May 30,
1982. One was a certification stating that he voluntarily surrendered
"voluminous assorted US checks and vouchers," that because of the
"large number of pieces" of checks, he affixed his signature upon
the middle portion of the back of each check "to serve as
identification in the future, prior to the completion of its proper
inventory and listing conducted by elements of SOG" in his
presence, and that he "guided the elements of SOG" to the
residence of Rodolfo C. Miranda, the owner of the sky-blue
Mercedes Benz car which was surrendered to the SOG
Headquarters. 25 The other document was a sworn statement
wherein petitioner attested to his waiver of the provisions of Article
125 of the Revised Penal Code and the following facts: (a) that he
was apprised of his constitutional rights under Section 20, Article IV
of the (1973) Constitution, that he understood all his rights
thereunder, and that the investigators offered him counsel from the
CLAO-IBP but he refused to avail of the privilege; (b) that he was
arrested by SOG men in his house at around 11:00 p.m. of May 29,
1982" sa dahilang ako ay kasangkot sa pagnanakaw ng mga US
Treasury Warrants, SSS Pension Checks and Vouchers at SSS
Medicare Checks and Vouchers mula sa delivery van ng Philippine
Mail;" (c) that the SOG men confiscated from him numerous checks
and a Mercedes Benz 200 colored sky-blue, and (d) that he was not
hurt or maltreated nor was anything taken from him which was not
duly receipted
for. 26
As certified to by petitioner (in the above described document), he
led the SOG operatives to the house of Rodolfo Miranda on
Singalong where the latter admitted that petitioner was his friend.
He denied, however, having knowledge that his car was used in the
hijacking until the authorities came to his house. According to
Miranda, he was made to believe that his car would be used for
surveillance purposes because petitioner's jeep was not available.
The car was not returned until the evening following that when it
was borrowed. 27 After the trip to Miranda's house, petitioner
informed the investigators that some more checks could be
recovered from his kumare. Said checks were retrieved and turned
over to headquarters along with the car surrendered by Miranda
who later executed a sworn statement dated May 31, 1992 at the
SOG.28
Upon learning of the whereabouts of Miravalles, Eddie Saguindel
and Bernardo Relator, the team of Capt. Ferrer proceeded to Taguig,
Metro Manila in the afternoon of May 30, 1982. They met
Miravalles along the way to his house. Informed by Capt. Ferrer that
six of his companions were already under custody and that they
implicated him as one of their confederates, Miravalles reacted by
saying, "Sir, ang hihina kasi ng mga loob niyan, eh." 29
Capt. Ferrer later asked Miravalles to bring him to Eddie Saguindel.
At the barracks of the Long Range Patrol in Bicutan, Metro Manila,
Saguindel voluntarily accepted the invitation to proceed to the SOG
headquarters, after Miravalles initially informed him of the facts
obtained during the investigation. Saguindel was heard saying,
"Hindi na kami interesado, sir, sa mga tsekeng iyan kasi isang buwan
na hindi pa nabebenta." 30 With Miravalles and Saguindel, Capt.
Ferrer and his team moved on to Binondo, Manila to look for
Bernardo Relator. When they found him at home, Relator excused
himself, went upstairs, returned with a .32 caliber revolver with six
bullets 31 and said, "Sir, ito yong baril na nagamit." 32 The three
suspects were brought to Camp Crame for further investigation.
Thereafter, Capt. Ferrer submitted an after-operations report about
their mission and executed jointly with Lt. Pagdilao an affidavit on
the same matter. 33
Aside from petitioner, Liwanag, Mateo and Perez executed sworn
statements. 34 Prior to doing so, they waived their right to counsel.
Liwanag and Mateo admitted their participation and implicated
petitioner in the crime. Perez, on the other hand, denied having
driven a Lancer car in the hijacking and stated that he was
implicated in the crime only because in one drinking spree with
petitioner, Mateo and one alias "Buro" during that month of May,
they had a heated altercation. Like petitioner, Liwanag and
Mendoza certified that they voluntarily surrendered vouchers and
checks which were part of their loot in the hijacking; they also
executed waivers under Article 125 of the Revised Penal Code. For
his part, Relator executed a certification to the effect that he
voluntarily surrendered his .32 caliber Smith & Wesson service
revolver used in the commission of the crime. In spite of the fact
that his father-in-law was a lawyer, petitioner did not manifest that
he needed the assistance of counsel. During the taking of his
statement, petitioner was visited by Jimmy Victorino and another
comrade from the General Assignment Section of the WPD.
For their part, Relator, Saguindel and Miravalles executed a joint
affidavit 35 manifesting their option to avail of their right to remain
silent until such time as they would have retained a counsel of their
choice. Frias and Mendoza executed a similar joint affidavit. 36
Severino Castro, the postal employee implicated, also chose to
remain silent as he wanted to testify in court. However, he linked to
the crime a certain Gerardo Escalada, a former clerk of the Central
Post Office and son of a director of the Bureau of Posts in Region I. 3
7 performance of his duties. On that fateful date of May 3, 1982, he
On May 31, 1982, then Postmaster General Golez summoned postal
employees Miranda, Bautista and Tagudar and directed them to
proceed to Camp Crame. At the office of the SOG, they were told to
go over some pictures for identification of the culprits. The three
recognized and pointed to the suspects in a line-up. Tagudar
identified Saguindel and Liwanag. 38 Miranda pointed at Frias and
Liwanag 39 while Bautista identified Frias, Mendoza and Liwanag. 40
Petitioner himself, when told to identify his alleged cohorts, pointed
to Severino Castro as their contact at the post office. 41 Five of the
suspects who were not identified in the line-up were however
implicated by Liwanag, Mateo and petitioner.
SOG Chief Investigator Jorge C. Mercado filed a complaint for
robbery-in-band (hijacking) before the Municipal Court of
Meycauayan, Bulacan against petitioner and ten (10) others,
namely, Mateo, Saguindel, Relator, Miravalles, Perez, Frias,
Mendoza, Liwanag, Castro and Escalada (Criminal Case No. 7885). 42
On August 8, 1983, the Information previously referred to and
aforequoted was filed with the Sandiganbayan and docketed as
Criminal Case No. 8496.
On September 20, 1983, Sandiganbayan Associate Justice Romeo M.
Escareal issued orders for the arrest of the accused 43 and fixed bail
at P13,000.00 each. Saguindel and Relator filed a motion to quash
the Information asserting that under the Articles of War and Section
1 of P.D. 1850, they should be tried by a court martial. 44 The
Sandiganbayan denied the motion on January 3, 1984 45 on the
ground that courts martial could no longer exercise jurisdiction over
them by virtue of their separation from military service.
Evidence for the Defense
Testifying in his own defense, petitioner alleged that as a patrolman
since August 21, 1978 assigned to the Investigation Division or the
Detective Bureau of the WPD to which the General Assignment
Section belonged, he was the recipient of several awards and
recognitions starting with ranking fifth in the Final Order of Merit in
the basic course for police officers. 46 He also claimed to have
received a loyalty medal for meritorious service above the call of
duty 4 7 and several commendations 48 for the distinguished
was a member of the Special Task Force Unit covering the tourist
belt area.
Of the ten other accused in this case, petitioner admitted knowing
only Martin Mateo whose name appeared in the initial follow-up
operation he allegedly participated in regarding a P250,000 qualified
theft case on May 16, 1980 at the Shemberg Marketing Corporation.
49 Although a suspect, Mateo was not charged in the information
subsequently filed in that case. Sometime in March 1981, Mateo
visited petitioner at the police headquarters seeking assistance in
his bid to lead a new life. Considering Mateo's familiarity with
underworld characters, petitioner readily made him an informer
who was paid from time to time out of the police intelligence fund.
Mateo proved to be an effective informer. In fact, he allegedly
supplied vital information on the identities and whereabouts of
suspects in robbery cases at the La Elegancia Jewelry Store, at the
Likha Antique and Crafts, 50 and in an alleged racket in Aranque
Market in Manila involving jewelries.
As such informer, Mateo became accustomed to borrowing
petitioner's owner-type jeep whenever he was given an assignment.
In one instance however, petitioner saw Mateo using his jeep with
some male companions. Because Mateo denied the occurrence of
the incident, petitioner from then on refused to lend his jeep to
Mateo. Instead, Mateo was given an allowance to cover his traveling
expenses.
About a month prior to May 3, 1982, petitioner met Mateo and
requested the latter to give him a good project as he was working
for his transfer to the Metrocom Intelligence Security Group (MISG).
On May 2, 1982, Mateo urged petitioner to lend him his jeep in
order that he could follow-up a bank robbery case. That same
evening, petitioner approached his kumpare, accused Rodolfo
Miranda, to borrow the latter's old Mercedes Benz since, if the jeep
was used, Mateo could be identified as an informer. Petitioner left
his jeep with Miranda and "went around boasting of the Mercedes
Benz." 51
Mateo took the Benz in the morning of May 3, 1982. Petitioner
advised him to return the car between the hours of two and three in
the afternoon at the Lakan Beer House at the corner of Rizal Avenue
and Zurbaran Streets in Sta. Cruz, Manila where petitioner was to
meet his friend Manolo Almoguera who would be celebrating his
birthday there. Petitioner met Almoguera and company at around
3:30 in the afternoon. He waited for Mateo until shortly before 5:00
in the afternoon when he was constrained to leave without seeing
Mateo because he had to attend a mandatory regular troop
formation at 5:00 P.M. at the police headquarters. From there,
petitioner proceeded to his area of responsibility in the tourist belt.
He returned to the beer house at about 6:00 in the evening hoping
to find Mateo and the automobile. A little before 8:00 o'clock,
someone informed him that Mateo had finally arrived. Petitioner
went out and scolded Mateo for being late; the latter apologized
and said that his surveillance bore good results. Petitioner then
returned the car to Miranda, through the latter's cousin.
At around 11:00 in the evening of May 29, 1982, Mateo, escorted by
a group of military men, went to petitioner's house at 810 Cabezas
St., Tondo, Manila. The group refused to give any reason for their
visit but arrested him. Wearing only short pants, petitioner was
made to board a car where he was handcuffed. The men asked him
about the Benz and the identities of his companions in an alleged
hijacking incident. Petitioner admitted having knowledge of the
exact location of the car but denied participation in the crime.
Nobody apprised him of his constitutional rights to remain silent
and to be assisted by counsel. 52
Petitioner was then instructed to accompany Lt. Pagdilao to the
residence of Miranda to get the Benz. They were on board two cars.
When petitioner noticed that they were not heading for Miranda's
place, he clutched the hand of Lt. Pagdilao, pleading for pity and
thinking that he was about to be "salvaged". Lt. Pagdilao however
informed him that they would be dropping by petitioner's house
first per the investigator's information that more checks could be
recovered thereat. A warrantless search was then allegedly
conducted in petitioner's house but nothing was found. Suddenly,
someone from the other car came out of a nearby house owned by
Mateo and reported that they had recovered some checks.
Thereafter, they proceeded to the house of Miranda who was also
invited for questioning. The latter surrendered his Benz to the
group.
At the SOG headquarters in Camp Crame, petitioner was repeatedly
coaxed to admit participation in the hijacking. As he vehemently
denied the accusation against him, someone blindfolded him from
behind, led him outside and loaded him in a car. He was taken to an
unidentified place and made to lie flat on his back. An object was
tied to his small finger to electrocute him. While a wet handkerchief
was stuffed in his mouth, someone mounted his chest and applied
the "water cure" ("tinutubig") through his nose. Because these
ordeals were simultaneously carried out, petitioner felt unbearable
pain. He sought permission to get in touch with his father-in-law,
Atty. Felix Rosacia, but his request was denied. They urged him to
cooperate otherwise something terrible would happen to him.
Meanwhile, petitioner's wife reported to the WPD General
Assignment Section her husband's forcible abduction by armed men
whom she mistook for CIS agents. A check with the CIS yielded
negative results. Thereafter, Lt. Reynaldo Dator went to the SOG
where he was informed that petitioner was being investigated but
no details were given thereon pending clearance with superior
officers. 53 Consequently, a newspaper carried an item on the SOG's
refusal to allow petitioner's co-police officers to see him in his
detention cell. 54
Among his comrades, only Jimmy Victorino, formerly of the WPD
who was transferred to the SOG, was able to visit him. Petitioner
revealed to Victorino the maltreatment done him but the latter
expressed helplessness about it. In fact, Victorino advised him to
just cooperate so that the SOG would not incriminate him (" para
hindi ka pag-initan dito"). 55 The advice came after petitioner was
warned that he, like Pat. Serrano of the WPD, would be liquidated
by the SOG, 56 should he refuse to cooperate. Later, Mateo came to
petitioner's cell and confided that he had been similarly maltreated
and forced to implicate petitioner.
After Mateo left, a prepared statement was shown and read to
petitioner. Because its contents were false, petitioner refused to
sign it. Placing his arm around petitioner, a certain Capt. Lagman
told petitioner that he thought they had an understanding already.
Petitioner later discovered that Lagman was not member of the
military but an "agent" of the SOG, and a member of the "Contreras
gang". Petitioner was therefore constrained to sign the statement
because of his excruciating experience ("hirap na hirap"). He
however admitted having read the document before affixing his
signature thereto and initialing the corrections therein. The waiver
under Article 125 of the Revised Penal Code and the certification he
executed were allegedly also obtained by duress. Although he
picked out one Severino Castro in a police line-up, he did not even
know Castro. He implicated Castro because he was threatened by a
certain Boy Zapanta.
Petitioner filed a complaint for grave coercion and maltreatment
against Lt. Rosendo Ferrer and several John Does. On August 4,
1982, Asst. City Fiscal Emelita H. Garayblas recommended its
dismissal for petitioner's failure to appear despite subpoenas and to
answer clarificatory questions as well as to authenticate his
statement. 57 However, petitioner swore that he never received the
subpoenas.
Petitioner's alibi was supported by Manolo Almoguera whose
birthday on May 3, 1995 was the reason for the celebration at the
Lakan Beer House. While his baptismal certificate indicated that he
was born on May 4, 1956, 58 a joint affidavit 59 also attested that
his birth date was actually May 3, 1956. Gary Gallardo, the owner of
the beer house, corroborated Almoguera's testimony as to
petitioner's alleged presence during the birthday celebration.
The Respondent Court's Decision
On June 18, 1987, the Sandiganbayan rendered the herein
questioned 51-page Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered finding accused Jose
Filoteo, Jr. y Diendo, Martin Mateo, Jr. y Mijares, Bernardo Relator,
Jr. y Retino and Eddie Saguindel y Pabinguit GUILTY as co-principals
beyond reasonable doubt of the violation of Section 2 (e), in relation
to Section 3 (b) of Presidential Decree No. 532, otherwise known as
the Anti-Piracy and Anti-Highway Robbery Law of 1974 and hereby
sentences each of said accused to suffer the indeterminate penalty
ranging from TWELVE (12) YEARS and ONE (1) DAY as minimum, to
THIRTEEN (13) YEARS, ONE (1) MONTH and ELEVEN (11) DAYS as
maximum, both of reclusion temporal, and to pay their
proportionate share of the costs of the action. Accused Danilo
Miravalles y Marcelo is hereby acquitted, with costs de oficio, for
insufficiency of evidence.
No civil indemnity is hereby awarded due to the complete dearth of
any proof as to the actual damages suffered by the Bureau of Posts
or the owners of the pilfered mail matters, and it further appearing
that the mail van which was hijacked had been recovered, as well as
most of the checks and warrants which were surrendered by some
of the accused, without prejudice to the institution of the proper
civil action to recover damages should proof thereof be available.
Consequently, it is hereby ordered that Exhibits B, B-l and B-2, which
are the .32 Cal. Revolver, Smith and Wesson, Serial No. 11707, its
holster and six (6) live ammunition respectively, which were
surrendered by accused Relator, and Exhibits J, J-l to J-5, consisting
of 187, 222, 215, 197, 194 and 22 pieces, respectively, of Social
Security System and Medicare checks and vouchers, be returned to
the Firearm and Explosives Unit (FEU), PC, Camp Crame, Quezon City
and the Social Security System, respectively, upon proper receipts.
Let copies of this decision be furnished the Postmaster-General,
Central Post Office, Liwasang Bonifacio, Metro Manila and the
Commanding General and Chief, PC-INP, Camp Crame, Quezon City
for their information and guidance with respect to the other
accused who are still at-large.
SO ORDERED.
Petitioner's motion for reconsideration of said Decision was denied
by the Sandiganbayan in its challenged Resolution of July 27, 1987.
Hence, the instant alternative petition for certiorari and/or review
on certiorari charging the Sandiganbayan with having gravely
abused its discretion amounting to lack or excess of jurisdiction and
with reversible error in arriving at said Decision.
The Issues
The amended petition raises the following:
Assignments of Error
and/or
Excess of Jurisdiction/Grave Abuse of Discretion
xxx xxx xxx
First
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction when it made its determination of the
alleged guilt of petitioner on the basis of mere preponderance of
evidence and not proof beyond reasonable doubt.
Second
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction in finding that petitioner's having
borrowed the Mercedes Benz car utilized by the other accused in
the hijacking of the mail van indubitably established his direct
participation and/or indispensable cooperation in the said hijacking,
the same being in gross disregard of basic Rules of Law.
Third
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction in finding that the voluminous SSS
Medicare and Pension Checks were confiscated from and
surrendered by petitioner and three of the other accused and in
finding the testimonies and investigation reports relative thereto.
"credible and unrefuted", said findings being, insofar as petitioner is
concerned, absolutely without any basis in the evidence and in fact
contrary to the prosecution's only evidence that has some measure
of competency and admissibility.
Fourth
The respondent court erred and gravely abused its discretion in
finding that dorsal portions of the checks and warrants allegedly
taken from petitioner were signed by him to indicate his admission
of accountability therefor and that his signatures thereon confirm
the confiscation from and/or surrender by him of said checks, said
findings being absolutely without any support in the evidence.
Fifth
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction in admitting and considering against
petitioner his alleged extra judical confession, despite petitioner's
uncontradicted testimony and documentary proof that he was
made to give or sign the same through torture, maltreatment,
physical compulsion, threats and intimidation and without the
presence and assistance of counsel, his request for which was
refused, in gross violation of Constitutional Provisions and the
prevailing jurisprudence.
Sixth
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction in finding that petitioner's participation
in the hijacking of the mail van is indubitably established "by the
manner by which the SOG operatives succeeded in ferreting out the
members of the hijacking syndicate one by one through patient
sleuthing" and in finding that they did so "without resorting to
extra-legal measures" and that "no evidence having been adduced
to show that they were actuated by improper motives to testify
falsely against the herein accused, then their testimonies should be
accorded full credence".
Seventh
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction in finding that "even setting aside the
inter-locking confessional statements of Filoteo, Mateo and
Liwanag, . . substantial and sufficient evidence exist which
indubitably prove the guilt of Filoteo" (Petitioner).
Eighth
Insofar as petitioner is concerned, the respondent court erred and
gravely abused its discretion as well as exceeded its jurisdiction in
finding that "accused Filoteo's ( petitioner's) and Mateo's [alleged]
unexplained possession of the stolen checks raised the presumption
that "they were responsible for the robbery in question",
petitioner's alleged possession not being borne out but disputed by
the prosecution's own evidence.
Ninth
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction in finding that "accused Filoteo's denials
and alibi cannot be entertained for being quite weak and
implausible". The truth of the matter being that they should have
been sustained since petitioner was not identified by direct victims-
eyewitnesses as among those who participated in or were present
at the hijack and none of the checks and treasury warrants were
found in his possession or retrieved from him.
Tenth
The respondent court erred and gravely abused its discretion as well
as exceeded its jurisdiction in finding that the participation of
petitioner in the criminal conspiracy has been proven beyond
reasonable doubt by the evidence of record and that said evidence
"not only confirms the conspiracy between [him and the other
accused] as easily discernible from their conduct before, during and
after the commission of the offense, but also their participation
and/or indispensable cooperation".
Eleventh
The respondent Court erred and gravely abused its discretion as well
as exceeded its jurisdiction in cavalierly rejecting, through the use of
pejorative words, and without stating the legal basis of such
rejection, the various vital factual points raised by petitioner, in
gross violation of the express mandate of the 1987 Constitution.
The Court believes that the above "errors" may be condensed into
four:
(1) Are the written statements, particularly the extra-judicial
confession executed by the accused without the presence of his
lawyer, admissible in evidence against him?
(2) Were said statements obtained through torture, duress,
maltreatment and intimidation and therefore illegal and
inadmissible?
(3) Was petitioner's warrantless arrest valid and proper?
(4) Is the evidence of the prosecution sufficient to find the
petitioner guilty beyond reasonable doubt?
The Court's Ruling
Preliminary Issue: Rule 4 or Rule 65?
Before ruling on the foregoing issues, it is necessary to dwell on the
procedural aspects of the case. Petitioner, a "segurista", opted to
file an (amended) "alternative petition" for certiorari under Rule 65
and for review on certiorari under Rule 45 of the Rules of Court. We
however hold that the instant petition must be considered as one
for review on certiorari under Rule 45. In Jariol, Jr. vs.
Sandiganbayan, 60 this Court clearly ruled:
Presidential Decree No. 1486, as amended by P.D. No. 1606, which
created the Sandiganbayan, specified that decisions and final orders
of the Sandiganbayan shall be subject to review on certiorari by this
Court in accordance with Rule 45 of the Rules of Court. And Rule 45
of the Revised Rules of Court provides, in Section 2, that only
questions of law may be raised in the Petition for Review and these
must be distinctly set forth. Thus, in principle, findings of fact of the
Sandiganbayan are not to be reviewed by this Court in a petition for
review on certiorari. There are, of course, certain exceptions to this
general principle. Here, reading petitioner's Petition for Review and
Memorandum in the most favorable possible light, petitioner may
be seen to be in effect asserting that the Sandiganbayan
misapprehended certain (f)acts in arriving at its factual conclusions.
As amended by Republic Act No. 7975, Section 7 of P.D. No. 1606
expressly provides that "(d)ecisions and final orders of the
Sandiganbayan shall be appealable to the Supreme Court by petition
for review on certiorari raising pure questions of law in accordance
with Rule 45 of the Rules of Court." However, in exceptional cases,
this Court has taken cognizance of questions of fact in order to
resolve legal issues, as where there was palpable error or grave
misapprehension of facts by the lower court. Criminal cases
elevated by convicted public officials from the Sandiganbayan
deserve the same thorough treatment by this Court as criminal
cases involving ordinary citizens simply because the constitutional
presumption of innocence must be overcome by proof beyond
reasonable doubt. In all criminal cases, a person's life and liberty are
at stake. 61
As a petition for review under Rule 45 is the available remedy, a
petition for certiorari under Rule 65 would not prosper. Basic it is
that certiorari is invocable only where there is no other plain,
speedy or adequate remedy. For waffling on procedural matters,
petitioner could have lost this battle through a summary dismissal of
his "alternative" petition. But in view of the importance of the issues
raised, the Court decided to take cognizance of the matter.
First Issue: Uncounselled Waiver
On the merits of the petition, we find that the pivotal issue here is
the admissibility of petitioner's extrajudicial confession which lays
out in detail his complicity in the crime.
Petitioner contends that respondent Court erred in admitting his
extrajudicial confession notwithstanding uncontradicted testimony
and documentary proof that he was made to sign the same through
torture, maltreatment, physical compulsion, threats and
intimidation and without the presence and assistance of counsel. He
also claims that in executing the extrajudicial confession, he was
denied the right to counsel in the sameway that his waiver of the
said right was likewise without the benefit of counsel. Petitioner
therefore questions the respondent Court's admission evidence of
his extrajudicial confession on the strength of cases 62 upholding
the admissibility of extrajudicial confessions notwithstanding the
absence of counsel "especially where the statements are replete
with details and circumstances which are indicative of
voluntariness." We shall first tackle the issue of his uncounselled
waiver of his right to counsel.
The pertinent provision of Article IV, Section 20 of the 1973
Constitution reads as follows:
No person shall be compelled to be a witness against himself. Any
person under investigation for the commission of an offense shall
have the right to remain silent and to counsel and to be informed of
such rights. No force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Any
confession obtained in violation of this section shall be inadmissible
in evidence.
In comparison, the relevant rights of an accused under Article III,
Section 12 of the 1987 Constitution are, inter alia, as follows:
(1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation; or any
other means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for
violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices and their
families." (emphasis supplied. Obviously, the 1973 Constitution did
not contain the right against an uncounselled waiver of the right to
counsel which is provided under paragraph 1, Section 12, Article III
of the 1987 Constitution, above underscored.)
In the landmark case of Magtoto vs. Manguera, 63 the Court
categorically held that the aforequoted provisions of the 1973
Constitution (which were not included in the 1935 Charter) must be
prospectively applied. This Court said:
We hold that this specific portion of this constitutional mandate has
and should be given a prospective and not a retrospective effect.
Consequently, a confession obtained from a person under
investigation for the commission of an offense, who has not been
informed of his right (to silence and) to counsel, is inadmissible in
evidence if the same had been obtained after the effectivity of the
New Constitution on January 17, 1973. Conversely, such confession
is admissible in evidence against the accused, if the same had been
obtained before the effectivity of the New Constitution, even if
presented after January 17, 1973, and even if he had not been
informed of his right to counsel, since no law gave the accused the
right to be so informed before that date.
By parity of reasoning, the specific provision of the 1987
Constitution requiring that a waiver by an accused of his right to
counsel during custodial investigation must be made with the
assistance of counsel may not be applied retroactively or in cases
where the extrajudicial confession was made prior to the effectivity
of said Constitution. Accordingly, waivers of the right to counsel
during custodial investigation without the benefit of counsel during
the effectivity of the 1973 Constitution should, by such
argumentation, be admissible. Although a number of cases held that
extrajudicial confessions made while the 1973 Constitution was in
force and effect, should have been made with the assistance of
counsel, 64 the definitive ruling was enunciated only on April 26,
1983 when this Court, through Morales, Jr. vs. Enrile,65 issued the
guidelines to be observed by law enforcers during custodial
investigation. The Court specifically ruled that "(t)he right to counsel
may be waived but the waiver shall not be valid unless made with
the assistance of counsel. 66 Thereafter, in People vs. Luvendino, 67
the Court through Mr. Justice Florentino P. Feliciano vigorously
taught:
. . . The doctrine that an uncounseled waiver of the right to counsel
is not to be given legal effect was initially a judge-made one and was
first announced on 26 April 1983 in Morales vs. Enrile and reiterated
on 20 March 1985 in People vs. Galit. . . .
While the Morales-Galit doctrine eventually became part of Section
12(1) of the 1987 Constitution, that doctrine affords no comfort to
appellant Luvendino for the requirements and restrictions outlined
in Morales and Galit have no retroactive effect and do not reach
waivers made prior to 26 April 1983 the date of promulgation of
Morales.
Pursuant to the above doctrine, petitioner may not claim the
benefits of the Morales and Galit rulings because he executed his
extrajudicial confession and his waiver to the right to counsel on
May 30, 1982, or before April 26, 1983. The prospective application
of "judge-made" laws was underscored in Co vs. Court of Appeals 68
where the Court ruled thru Chief Justice Andres R. Narvasa that in
accordance with Article 8 of the Civil Code which provides that
"(j)udicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines,"
and Article 4 of the same Code which states that "(l)aws shall have
no retroactive effect unless the contrary is provided," the principle
of prospectivity of statutes, original or amendatory, shall apply to
judicial decisions, which, although in themselves are not laws, are
nevertheless evidence of what the law means.69
Petitioner's contention that Article III, Section 12 of the 1987
Constitution should be given retroactive effect for being favorable
to him as an accused, cannot be sustained. While Article 22 of the
Revised Penal Code provides that "(p)enal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony
who is not a habitual criminal," what is being construed here is a
constitutional provision specifically contained in the Bill of Rights
which is obviously not a penal statute. A bill of rights is a declaration
and enumeration of the individual rights and privileges which the
Constitution is designed to protect against violations by the
government, or by individuals or groups of individuals. It is a charter
of liberties for the individual and a limitation upon the power of the
state. 70 Penal laws, on the other hand, strictly and properly are
those imposing punishment for an offense committed against the
state which the executive of the state has the power to pardon. In
other words, a penal law denotes punishment imposed and
enforced by the state for a crime or offense against its law. 71
Hence, petitioner's vigorous reliance on People vs. Sison 72 to make
his extrajudicial confession inadmissible is misplaced. In that case,
the extrajudicial confession was executed on May 19, 1983, clearly
after the promulgation of Morales on April 26, 1983.
The admissibility of petitioner's uncounselled waiver of the right to
counsel notwithstanding, the Court has still to determine whether
such waiver was made voluntarily and intelligently. 73 The waiver
must also be categorical and definitive, 74 and must rest on clear
evidence. 75
In his affidavit of May 30, 1982 waiving the provisions of Article 125
of the Revised Penal Code, 76 petitioner stated that:
. . . matapos akong mapagpaliwanagan ng mga imbestigador ng
Special Operations Group, PC/INP Central Anti-Organized Crime Task
Force, Camp Crame, Quezon City ng aking mga karapatan alinsunod
sa mga isinasaad ng Section 20, Article IV ng Bagong Saligang Batas
ng Republika ng Pilipinas ay malaya at kusang-loob na nagsasalaysay
ng mga sumusunod kahit na walang abugadong magpapayo sa akin
sa pagsasagawa nito sa dahilang alam at nauunawaan ko ang aking
ginagawa at wala naman akong isasalaysay kung hindi mga
katotohanan lamang, bagama't ako ay inalok ng mga imbestigador
na ikuha ng isang abugadong walang bayad mula sa CLAO-IBP na
akin namang tinanggihan:
xxx xxx xxx
Na ako ay hindi sinaktan a minaltrato gayunding walang kinuha mula
sa akin na hindi niresibohan;
xxx xxx xxx
Sgt. Arsenio Carlos, investigating officer, testified that he apprised
petitioner of his right to counsel even in waiving the same right77
but petitioner did not even inform him that his father-in-law was a
lawyer. Although allowed to talk for thirty minutes with Jimmy
Victorino, who was his comrade at the WPD General Assignment
Section, 78 still, petitioner did not invoke his right to counsel.
It should be emphasized that petitioner could not have been
ignorant of his rights as an accused. He was a fourth year
criminology student and a topnotch student in the police basic
course. 79 Having been in the police force since 1978, with stints at
the investigation division or the detective bureau, he knew the
tactics used by investigators to incriminate criminal suspects. 80 In
other words, he was knowledgeable on the matterof extrajudicial
confessions.
The Second Issue: Confession Extracted Through Torture?
Petitioner's claim that he was tortured into signing the confession
appears incredible, or at least susceptible to serious doubts. The
allegation of torture was negated by the medical report 81 showing
no evidence of physical injuries upon his person. As correctly
observed by the Solicitor General, there is no reason to maltreat
him in particular when the record shows that the investigating team
respected the right of the other suspects to remain silent. When he
was presented before Judge Mariano Mendieta of the municipal
court in Meycauayan, petitioner even waived his right to present
evidence82 instead of impugning his confession on account of the
torture allegedly inflicted upon him. If indeed he had been tortured,
he would have revived the case he filed against his alleged torturers
upon learning of its dismissal.
Furthermore, an examination of his signatures in the different
documents on record bearing the same discloses an evenness of
lines and strokes in his penmanship which is markedly consistent in
his certification, extrajudicial confession and waiver of detention.
Human experience has proven that the lines and strokes of a
person's handwriting reflect his disposition at a certain given time.
In the present case, no handwriting expert is needed to declare that
petitioner's signatures were written voluntarily and not under
compulsion of fear immediately after he had been subjected to
maltreatment. In view of the foregoing, his extrajudicial confession
is presumed to have been voluntarily made, in the absence of
conclusive evidence showing that petitioner's consent in executing
the same had been vitiated. 83
Besides, the question of whether petitioner was indeed subjected to
torture or maltreatment is a factual question addressed primarily to
trial courts, the findings of which are binding on this Court whose
function, as afore-discussed, is principally to review only of
questions of law. Moreover, we have pored over the assailed
Decision and we are satisfied that respondent Court performed its
duty in evaluating the evidence. More on this later.
The Third Issue: Illegal Arrest?
Petitioner questions the manner of his arrest, stating that the
arresting officers "invited" him without a warrant of arrest and
brought him to Camp Crame where he was allegedly subjected to
torture almost a month after the commission of the crime. 84
Petitioner's claim is belatedly made. He should have questioned the
validity of his arrest before he entered his plea in the trial court. On
this point, this Court explained in People vs. Lopez, Jr.: 85
Finally, it is much too late for appellant to raise the question of his
arrest without a warrant. When accused-appellant was arrested and
a case was filed against him, he pleaded not guilty upon
arraignment, participated in the trial and presented his evidence.
Appellant is thus estopped from questioning the legality of his
arrest. It is well-settled that any objection involving a warrant of
arrest or procedure in the acquisition by the court of jurisdiction
over the person of an accused must be made before he enters his
plea, otherwise the objection is deemed waived. Besides, this issue
is being raised for the first time by appellant. He did not move for
the quashal of the information before the trial court on this ground.
Consequently, any irregularity attendant to his arrest, if any, was
cured when he voluntarily submitted himself to the jurisdiction of
the trial court by entering a plea of not guilty and by participating in
the trial. Moreover, the illegal arrest of an accused is not sufficient
cause for setting aside a valid judgment rendered upon a sufficient
complaint after trial free from error.
The only move petitioner made in regard to his arrest was to file a
complaint for "grave coercion, grave threat & maltreatment" which
was docketed as I.S. No. 82-12684 before the Fiscal's Office of
Quezon City. 86 The complaint was an offshoot of his alleged
maltreatment in the hands of the SOG upon his arrest. However, as
stated above, he did not lift a finger to revive it upon its dismissal.
The Fourth Issue: Sufficiency of the Prosecution's Evidence
Contrary to petitioner's claim, his culpability has been proven
beyond reasonable doubt. He borrowed a car to use in the hijacking
knowing fully well that his owner-type jeep would give away his
identity. Hecould not be identified by the postal employees in the
postal van simply because after overtaking said vehicle and forcing
its driver to pull over, he gave up driving the Mercedes Benz where
the postal employees were made to ride, and commandeered the
van. That the checks were not found in his own home is of no
moment. Before the arrest and upon learning that the authorities
had begun to nail down the identities of the malefactors, hehad
entrusted them to his "kumare". It was petitioner himself who led
the team of Lt. Pagdilao back to his place after he had admitted to
Sgt. Arsenio Carlos that his share of the checks were in the
possession of his "kumare" in the neighborhood. 87
In view of these facts, it is beyond dispute that petitioner was a
direct participant in the commission of the crime. His alibi has been
correctly considered by the Sandiganbayan to be weak and
implausible. The distance between Kalvario, Meycauayan, Bulacan
and downtown Manila where petitioner claimed to have been at the
crucial time was between fifteen (15) to twenty (20) kilometers,
which, through first-class roads, could be negotiated during that
time in approximately thirty (30) minutes. It could not therefore
have been physically impossible for him to be at the crime scene or
its immediate vicinity when the crime was committed. 88
Having already ruled on the admissibility of petitioner's confession,
this Court holds that the full force of the totality of the prosecution's
evidence proves his guilt well beyond reasonable doubt. Weighing
heavily against the defense is the well-settled doctrine that findings
of facts of the trial courts — in this case, the Sandiganbayan itself —
particularly in the assessment of the credibility of witnesses, is
binding upon this Court, absent any arbitrariness, abuse or palpable
error.
. . . It is well-settled that this Court will not interfere with the
judgment of the trial court in passing on the credibility of the
witnesses, unless there appears in the record some fact or
circumstance of weight and influence which has been overlooked or
the significance of which has been misapprehended or
misinterpreted. The reason for this is that the trial court is in a
better position to decide the question, having heard the witnesses
themselves and observed their deportment and manner of testifying
during the trial. 89
The doctrine is firmly settled that the trial court's conclusion on
issues of credibility is accorded with highest respect by the appellate
courts (People v. Dominguez, 217 SCRA 170). Appellate courts will
generally respect the findings of trial courts on the credibility of
witnesses since trial courts are in a better position to weigh
conflicting testimonies. They heard the witnesses themselves and
observed their deportment and manner of testifying. . . . 90
So overwhelming is the prosecution's evidence that respondent
Court opined that even without the "inter-locking confessions of
Filoteo, Mateo and Liwanag" the remaining evidence would still be
sufficient for conviction. 91 Said the respondent tribunal:
However, even setting aside the inter-locking confessional
statements of Filoteo, Mateo and Liwanag, we are of the considered
opinion that substantial and sufficient evidence exist which
indubitably prove the guilt of Filoteo, Relator, Mateo and Saguindel
who had submitted themselves to the jurisdiction of this Court. As
above-stated, Filoteo was responsible for securing the use of the
Mercedes Benz car used by the co-conspirators in the hi-jacking.
Together with Mateo, Liwanag and Mendoza, he surrendered
voluminous assorted checks which were part of the loot. Relator
admitted that his service firearm was used by him in the hi-jacking,
which firearm was identified by prosecution witnesses Miranda and
Bautista. Saguindel was identified in line-ups at the SOG office as
the suspect clad in fatigue uniform and carrying an Armalite rifle by
prosecution witnesses Tagudar and Bautista. All three (3) accused,
namely, Mateo, Relator and Saguindel also jumped bail during the
trial and did not offer any evidence to refute the evidence
presented by the prosecution against them. Such flight to evade
prosecution constitutes an implied admission of guilt.
Moreover, accused Filoteo's and Mateo's unexplained possession of
the stolen checks raises the presumption that they were responsible
for the robbery in question. It is a rule established by an abundance
of jurisprudence that when stolen property is found in the
possession of one, not the owner, without a satisfactory explanation
of his possession, he will be presumed the thief. This rule is in
accordance with the disputable presumption "that a person found in
possession of a thing taken in the doing of a recent wrongful act is
the taker and doer of the whole act." In the instant case, said
accused has not given such satisfactory explanation, much more so
when their possession had been positively established by the
testimonies of prosecution witnesses Capt. Ferrer and Sgt. Carlos
and by accused's own signatures at the back of said checks.
Furthermore, accused Filoteo's denials and alibi cannot be
entertained for being quite weak and implausible. His claim that he
merely borrowed the Mercedes Bent car from Rodolfo Miranda to
help out his co-accused Mateo, who had been utilized by the police
as an "informer" and was following up tips in certain unsolved cases,
appears to be incredible and fantastic. He also claimed that he could
not have participated in the hi-jack because after giving the car to
Mateo in the morning of May 2, 1982, he waited at the corner of
Zurbaran St. and Avenida Rizal between 2-3:00 o'clock p.m. of the
same day and then went to the WPD headquarters to attend the
police formation at around 5:00 o'clock p.m. when Mateo failed to
show up. Thereafter, he tried to show through his witnesses Gary
Gallardo and Manolo Almogera that he was with them between
3:00 o'clock to 4:45 o'clock p.m., then from 6:00 o'clock to 8:30
o'clock p.m. and, finally, from 10:45 o'clock p.m. to 11:00 o'clock of
the same date. It was through said witnesses that he tried to
establish his whereabouts between 4:30 o'clock to 7:30 o'clock p.m.
of May 2, 1982, the period from the time the mail van was hi-jacked
up to when postal employees Bautista, Miranda and Tagudar were
brought to Caloocan City and freed by their captors. Such alibi,
however, fails to show that it was physically impossible for him to
be present at the scene of the hi-jacking. We take judicial notice
that the distance between the crime scene and down-town Manila
is some 15-20 kilometers and negotiable over first- class roads in
some thirty (30) minutes.
We are likewise convinced that there is sufficient evidence of
conspiracy as convincing as the evidence of the participation of each
of the accused. As ratiocinated in the assailed Decision: 92
The participation of accused Filoteo, Mateo, Relator and Saguindel
in the criminal conspiracy have (sic) been proved beyond reasonable
doubt by the evidence on record and which evidence not only
confirms the existence of the conspiracy between them as easily
discernible from their conduct before, during and after the
commission of the offense, but also their participation therein as co-
principals by direct participation and/or indispensable cooperation.
Their concerted efforts were performed with closeness and
coordination indicating their common purpose. Hence, there being
collective criminal responsibility, the act of one is the act of all, and
each of the participants are responsible for what the others did in all
the stages of execution of the offense.
Final Question: Brigandage or Robbery?
The Court believes that, though not raised as an issue and though
not argued by the parties in their pleadings, the question of which
law was violated by the accused should be discussed and passed
upon. In fact, petitioner should have brought up such question as it
may benefit him with a reduced penalty.
The respondent Court convicted the accused of brigandage
punishable under Presidential Decree No. 532. 93
Justifying the above disposition, the assailed Decision ratiocinates:
Accused herein are charged with the violation of Presidential Decree
No. 532, otherwise known as the Anti-Piracy and Anti-Highway
Robbery Law of 1974. Under said decree, with respect to the
highway robbery aspect, the offense is committed on a "Philippine
Highway" which under Section 2 (c) thereof has been defined as
"any road, street, passage, highway and bridges or any part thereof,
or railway or railroad within the Philippines, used by persons or
vehicles, or locomotives or trains for the movement or circulation of
persons or transportation of goods, articles or property or both",
while under Section 2 (e) thereof "Highway Robbery/ Brigandage"
has been defined as the "the seizure of any person for ransom,
extortion or other unlawful purposes or the taking away of property
of another by means of violence against or intimidation of persons
nor force upon things or other unlawful means, committed by any
person on any Philippine Highway". (Emphasis supplied)
The offense described in the information and established by the
evidence presented by the prosecution properly falls within the
ambit of the aforesaid special law. Therein, it was conclusively
proven that a postal van containing mail matters, including checks
and warrants, was hi-jacked along the national highway in Bulacan
by the accused, with the attendant use of force, violence and
intimidation against the three (3) postal employees who were
occupants thereof, resulting in the unlawful taking and asportation
of the entire van and its contents consisting of mail matters. Also
the evidence further showed that the crime was committed by the
accused who were PC soldiers, policeman (sic) and private
individuals in conspiracy with their co-accused Castro and Escalada
who were postal employees and who participated in the planning of
the crime. Accordingly, all the essential requisites to constitute a
consummated offense under the law in point are present. (Emphasis
in the original text.)
Obviously, the Court a quo labored under the belief that because
the taking or robbery was perpetrated on a national highway
(McArthur Highway), ergo, Presidential Decree No. 532, otherwise
known as the Anti-Piracy and Anti-Highway Robbery Law of 1974,
must have been the statute violated. Such reasoning has already
been debunked by this Court in the case of People vs. Isabelo Puno,
94 where it was ruled in unmistakable language that it takes more
than the situs of the robbery to bring it within the ambit of PD 532.
Said the Court through Mr. Justice Florenz D. Regalado:
The following salient distinctions between brigandage and robbery
are succinctly explained in a treatise on the subject and are of
continuing validity:
The main object of the Brigandage Law is to prevent the formation
of bands of robbers. The heart of the offense consists in the
formation of a band by more than three armed persons for the
purpose indicated in art. 306. Such formation is sufficient to
constitute a violation of art. 306. It would not be necessary to show,
in a prosecution under it, that a member or members of the band
actually committed robbery or kidnapping or any other purpose
attainable by violent means. The crime is proven when the
organization and purpose of the band are shown to be such as are
contemplated by art. 306. On the other hand, if robbery is
committed by a band, whose members were not primarily organized
for the purpose of committing robbery or kidnapping, etc., the crime
would not be brigandage, but only robbery. Simply because robbery
was committed by a band of more than three armed persons, it
would not follow that it was committed by a band of brigands. In
the Spanish text of art. 306, it is required that the band "sala a los
campos para dedicarse a robar." (Emphasis ours.)
In fine, the purpose of brigandage, is inter alia, indiscriminate
highway robbery. If the purpose is only a particular robbery, the
crime is only robbery, or robbery in band if there are at least four
armed participants. The martial law legislator, in creating and
promulgating Presidential Decree No. 532 for the objectives
announced therein, could not have been unaware of that distinction
and is presumed to have adopted the same, there being no
indication to the contrary. This conclusion is buttressed by the rule
on contemporaneous construction, since it is one drawn from the
time when and the circumstances under which the decree to be
construed originated. Contemporaneous exposition or construction
is the best and strongest in the law.
Further, that Presidential Decree No. 532 punishes as highway
robbery or brigandage only acts of robbery perpetrated by outlaws
indiscriminately against any person or persons on Philippine
highways as defined therein, and not acts of robbery committed
against only a predetermined or particular victim, is evident from
the preambular clauses thereof, to wit:
WHEREAS, reports from law-enforcement agencies reveal that
lawless elements are still committing acts of depredation upon the
persons and properties of innocent and defenseless inhabitants who
travel from one place to another, thereby disturbing the peace,
order and tranquility of the nation and stunting the economic and
social progress of the people:
WHEREAS, such acts of depredations constitute . . . highway
robbery/brigandage which are among the highest forms of
lawlessness condemned by the penal statutes of all countries:
From the above, it is clear that a finding of brigandage or highway
robbery involves not just the locus of the crime or the fact that
more than three (3) persons perpetrated it. It is essential to prove
that the outlaws were purposely organized not just for one act of
robbery but for several indiscriminate commissions thereof. In the
present case, there had been no evidence presented that the
accused were a band of outlaws organized for the purpose of
"depredation upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another."
What was duly proven in the present case is one isolated hijacking
of a postal van. There was also no evidence of any previous
attempts at similar robberies by the accused to show the
"indiscriminate" commission thereof. 95
Upon the other hand, the Information did not specifically mention
P.D. 532. 96 The facts alleged therein and proven by the evidence
constitute the offense of robbery defined in Art. 293 in relation to
Art. 295 and punished by Art. 244, par. 5, all of the Revised Penal
Code. 97 From the facts, it was duly proven that:
* personal property (treasury warrants, checks, mail, van,
tools, etc.)
* belonging to another were
prision correccional in its maximum period to prision mayor in its
medium period".
Effectively, the penalty imposed by the Court a quo should be
lightened. However, such lighter penalty shall benefit only herein
petitioner and not his co-accused who did not contest or appeal the
Sandiganbayan's Decision.
WHEREFORE, the petition is DENIED, but the first paragraph of the
dispositive portion of the assailed Decision is partially MODIFIED to
read as follows:
WHEREFORE, judgment is hereby rendered finding accused Jose
Filoteo, Jr. y Diendo GUILTY beyond reasonable doubt as co-
principal in the crime of robbery as defined in Arts. 293 and 295 and
penalized under Art. 294, paragraph 5, of the Revised Penal Code
Code IMPOSING on him an indeterminate sentence of four (4) years
and two (2) months of prision correccional, as minimum, to ten (10)
years of prision mayor as maximum, and to pay his proportionate
share of the costs of the action.
All other parts of the disposition are hereby AFFIRMED.
SO ORDERED.

WHEREAS, it is imperative that said lawless elements be
discouraged from perpetrating such acts of depredations by
imposing heavy penalty on the offenders, with the end in view of
eliminating all obstacles to the economic, social, educational and
community progress of the people; (Emphasis supplied.)
* unlawfully taken by the accused
* with intent to gain (animo lucrandi)
* with intimidation against three persons (Art. 293)

Indeed, it is hard to conceive of how a single act of robbery against a
particular person chosen by the accused as their specific victim
could be considered as committed on the "innocent and defenseless
inhabitants who travel from one place to another," and which single
act of depredation would be capable of "stunting the economic and
social progress of the people" as to be considered "among the
highest forms of lawlessness condemned by the penal statutes of all
countries, and would accordingly constitute an obstacle "to the
economic, social, educational and community progress of the
people, such that said isolated act would constitute the highway
robbery or brigandage contemplated and punished is said decree.
This would be an exaggeration bordering on the ridiculous.
* in an uninhabited place, or
* by an band, or
* by attacking a moving motor vehicle
* on a highway; and
* the intimidation was made with the use of firearms (Art.
295)
Hence, the offender shall be punished by the maximum period of
the penalty provided under paragraph 5 of Art. 294, which is, "
EN BANC
G.R. Nos. 92191-92 July 30, 1991
ANTONIO Y. CO, petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND
JOSE ONG, JR., respondents.
G.R. Nos. 92202-03 July 30, 1991
SIXTO T. BALANQUIT, JR., petitioner,
vs.
ELECTORAL TRIBUNAL OF THE HOUSE OF REPRESENTATIVES AND
JOSE ONG, JR., respondents.
Hechanova & Associates for petitioner Co.
Brillantes, Nachura, Navarro and Arcilla Law Offices for respondent
Ong, Jr.
GUTIERREZ, JR., J.:
The petitioners come to this Court asking for the setting aside and
reversal of a decision of the House of Representatives Electoral
Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a natural born
Filipino citizen and a resident of Laoang, Northern Samar for voting
purposes. The sole issue before us is whether or not, in making that
determination, the HRET acted with grave abuse of discretion.
On May 11, 1987, the congressional election for the second district
of Northern Samar was held.
Among the candidates who vied for the position of representative in
the second legislative district of Northern Samar are the petitioners,
Sixto Balinquit and Antonio Co and the private respondent, Jose
Ong, Jr.
Respondent Ong was proclaimed the duly elected representative of
the second district of Northern Samar.
The petitioners filed election protests against the private
respondent premised on the following grounds:
1) Jose Ong, Jr. is not a natural born citizen of the Philippines;
and
2) Jose Ong, Jr. is not a resident of the second district of
Northern Samar.
The HRET in its decision dated November 6, 1989, found for the
private respondent.
A motion for reconsideration was filed by the petitioners on
November 12, 1989. This was, however, denied by the HRET in its
resolution dated February 22, 1989.
Hence, these petitions for certiorari.
We treat the comments as answers and decide the issues raised in
the petitions.
ON THE ISSUE OF JURISDICTION
The first question which arises refers to our jurisdiction.
The Constitution explicitly provides that the House of
Representatives Electoral Tribunal (HRET) and the Senate Electoral
Tribunal (SET) shall be the sole judges of all contests relating to the
election, returns, and qualifications of their respective members.
(See Article VI, Section 17, Constitution)
The authority conferred upon the Electoral Tribunal is full, clear and
complete. The use of the word sole emphasizes the exclusivity of
the jurisdiction of these Tribunals.
The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391
[1988]) stated that under the 1987 Constitution, the jurisdiction of
the Electoral Tribunal is original and exclusive, viz:
The use of the word "sole" emphasizes the exclusive character of
the jurisdiction conferred (Angara v. Electoral Commission, supra at
p. 162). The exercise of power by the Electoral Commission under
the 1935 Constitution has been described as "intended to be as
complete and unimpaired as if it had originally remained in the
legislature." (id., at p. 175) Earlier this grant of power to the
legislature was characterized by Justice Malcolm as "full, clear and
complete; (Veloso v. Board of Canvassers of Leyte and Samar, 39
Phil. 886 [1919]) Under the amended 1935 Constitution, the power
was unqualifiedly reposed upon the Electoral Tribunal and it
remained as full, clear and complete as that previously granted the
Legislature and the Electoral Commission, (Lachica v. Yap, 25 SCRA
140 [1968]) The same may be said with regard to the jurisdiction of
the Electoral Tribunal under the 1987 Constitution. (p. 401)
The Court continued further, ". . . so long as the Constitution grants
the HRET the power to be the sole judge of all contests relating to
election, returns and qualifications of members of the House of
Representatives, any final action taken by the HRET on a matter
within its jurisdiction shall, as a rule, not be reviewed by this Court .
. . the power granted to the Electoral Tribunal is full, clear and
complete and excludes the exercise of any authority on the part of
this Court that would in any wise restrict it or curtail it or even affect
the same." (pp. 403-404)
When may the Court inquire into acts of the Electoral Tribunals
under our constitutional grants of power?
In the later case of Robles v. HRET (181 SCRA 780 [1990]) the
Supreme Court stated that the judgments of the Tribunal are
beyond judicial interference save only "in the exercise of this Court's
so-called extraordinary jurisdiction, . . . upon a determination that
the Tribunal's decision or resolution was rendered without or in
excess of its jurisdiction, or with grave abuse of discretion or
paraphrasing Morrero, upon a clear showing of such arbitrary and
improvident use by the Tribunal of its power as constitutes a denial
of due process of law, or upon a demonstration of a very clear
unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF
DISCRETION that there has to be a remedy for such abuse." (at pp.
785-786)
In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the
Court ruled that the power of the Electoral Commission "is beyond
judicial interference except, in any event, upon a clear showing of
such arbitrary and improvident use of power as will constitute a
denial of due process." The Court does not venture into the perilous
area of trying to correct perceived errors of independent branches
of the Government, It comes in only when it has to vindicate a
denial of due process or correct an abuse of discretion so grave or
glaring that no less than the Constitution calls for remedial action.
The Supreme Court under the 1987 Constitution, has been given an
expanded jurisdiction, so to speak, to review the decisions of the
other branches and agencies of the government to determine
whether or not they have acted within the bounds of the
Constitution. (See Article VIII, Section 1, Constitution)
Yet, in the exercise thereof, the Court is to merely check whether or
not the governmental branch or agency has gone beyond the
Constitutional limits of its jurisdiction, not that it erred or has a
different view. In the absence of a showing that the HRET has
committed grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise its
corrective power; it will not decide a matter which by its nature is
for the HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA
668 [1989]) It has no power to look into what it thinks is apparent
error.
As constitutional creations invested with necessary power, the
Electoral Tribunals, although not powers in the tripartite scheme of
the government, are, in the exercise of their functions independent
organs — independent of Congress and the Supreme Court. The
power granted to HRET by the Constitution is intended to be as
complete and unimpaired as if it had remained originally in the
legislature. (Angara v. Electoral Commission, 63 Phil. 139 [1936])
In passing upon petitions, the Court with its traditional and careful
regard for the balance of powers, must permit this exclusive
privilege of the Tribunals to remain where the Sovereign authority
has place it. (See Veloso v. Boards of Canvassers of Leyte and Samar,
39 Phil. 886 [1919])
It has been argued that under Article VI, Section 17 of the present
Constitution, the situation may exist as it exists today where there is
an unhealthy one-sided political composition of the two Electoral
Tribunals. There is nothing in the Constitution, however, that makes
the HRET because of its composition any less independent from the
Court or its constitutional functions any less exclusive. The degree of
judicial intervention should not be made to depend on how many
legislative members of the HRET belong to this party or that party.
The test remains the same-manifest grave abuse of discretion.
In the case at bar, the Court finds no improvident use of power, no
denial of due process on the part of the HRET which will necessitate
the exercise of the power of judicial review by the Supreme Court.
ON THE ISSUE OF CITIZENSHIP
The records show that in the year 1895, the private respondent's
grandfather, Ong Te, arrived in the Philippines from China. Ong Te
established his residence in the municipality of Laoang, Samar on
land which he bought from the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a certificate of
residence from the then Spanish colonial administration.
The father of the private respondent, Jose Ong Chuan was born in
China in 1905. He was brought by Ong Te to Samar in the year 1915.
Jose Ong Chuan spent his childhood in the province of Samar. In
Laoang, he was able to establish an enduring relationship with his
neighbors, resulting in his easy assimilation into the community.
As Jose Ong Chuan grew older in the rural and seaside community of
Laoang, he absorbed Filipino cultural values and practices. He was
baptized into Christianity. As the years passed, Jose Ong Chuan met
a natural born-Filipino, Agripina Lao. The two fell in love and,
thereafter, got married in 1932 according to Catholic faith and
practice.
The couple bore eight children, one of whom is the private
respondent who was born in 1948.
The private respondent's father never emigrated from this country.
He decided to put up a hardware store and shared and survived the
vicissitudes of life in Samar.
The business prospered. Expansion became inevitable. As a result, a
branch was set-up in Binondo, Manila. In the meantime, the father
of the private respondent, unsure of his legal status and in an
unequivocal affirmation of where he cast his life and family, filed
with the Court of First Instance of Samar an application for
naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong
Chuan a Filipino citizen.
On May 15, 1957, the Court of First Instance of Samar issued an
order declaring the decision of April 28, 1955 as final and executory
and that Jose Ong Chuan may already take his Oath of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance;
correspondingly, a certificate of naturalization was issued to him.
At the time Jose Ong Chuan took his oath, the private respondent
then a minor of nine years was finishing his elementary education in
the province of Samar. There is nothing in the records to
differentiate him from other Filipinos insofar as the customs and
practices of the local populace were concerned.
Fortunes changed. The house of the family of the private
respondent in Laoang, Samar was burned to the ground.
Undaunted by the catastrophe, the private respondent's family
constructed another one in place of their ruined house. Again, there
is no showing other than that Laoang was their abode and home.
After completing his elementary education, the private respondent,
in search for better education, went to Manila in order to acquire
his secondary and college education.
In the meantime, another misfortune was suffered by the family in
1975 when a fire gutted their second house in Laoang, Samar. The
respondent's family constructed still another house, this time a 16-
door apartment building, two doors of which were reserved for the
family.
The private respondent graduated from college, and thereafter took
and passed the CPA Board Examinations.
Since employment opportunities were better in Manila, the
respondent looked for work here. He found a job in the Central Bank
of the Philippines as an examiner. Later, however, he worked in the
hardware business of his family in Manila. In 1971, his elder brother,
Emil, was elected as a delegate to the 1971 Constitutional
Convention. His status as a natural born citizen was challenged.
Parenthetically, the Convention which in drafting the Constitution
removed the unequal treatment given to derived citizenship on the
basis of the mother's citizenship formally and solemnly declared
Emil Ong, respondent's full brother, as a natural born Filipino. The
Constitutional Convention had to be aware of the meaning of
natural born citizenship since it was precisely amending the article
on this subject.
The private respondent frequently went home to Laoang, Samar,
where he grew up and spent his childhood days.
In 1984, the private respondent married a Filipina named Desiree
Lim.
For the elections of 1984 and 1986, Jose Ong, Jr. registered himself
as a voter of Laoang, Samar, and correspondingly, voted there
during those elections.
The private respondent after being engaged for several years in the
management of their family business decided to be of greater
service to his province and ran for public office. Hence, when the
opportunity came in 1987, he ran in the elections for representative
in the second district of Northern Samar.
Mr. Ong was overwhelmingly voted by the people of Northern
Samar as their representative in Congress. Even if the total votes of
the two petitioners are combined, Ong would still lead the two by
more than 7,000 votes.
The pertinent portions of the Constitution found in Article IV read:
SECTION 1, the following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the
adoption of the Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those born before January 17, 1973, of Filipino mothers,
who elect Philippine citizenship upon reaching the age of majority;
and
4. Those who are naturalized in accordance with law.
SECTION 2, Natural-born Citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire
or perfect their citizenship. Those who elect Philippine citizenship in
accordance with paragraph 3 hereof shall be deemed natural-born
citizens.
The Court interprets Section 1, Paragraph 3 above as applying not
only to those who elect Philippine citizenship after February 2, 1987
but also to those who, having been born of Filipino mothers, elected
citizenship before that date.
The provision in Paragraph 3 was intended to correct an unfair
position which discriminates against Filipino women. There is no
ambiguity in the deliberations of the Constitutional Commission, viz:
Mr. Azcuna: With respect to the provision of section 4, would
this refer only to those who elect Philippine citizenship after the
effectivity of the 1973 Constitution or would it also cover those who
elected it under the 1973 Constitution?
Fr. Bernas: It would apply to anybody who elected Philippine
citizenship by virtue of the provision of the 1935 Constitution
whether the election was done before or after January 17, 1973.
(Records of the Constitutional Commission, Vol. 1, p. 228; Emphasis
supplied)
xxx xxx xxx
Mr. Trenas: The Committee on Citizenship, Bill of Rights,
Political Rights and Obligations and Human Rights has more or less
decided to extend the interpretation of who is a natural-born citizen
as provided in section 4 of the 1973 Constitution by adding that
persons who have elected Philippine Citizenship under the 1935
Constitution shall be natural-born? Am I right Mr. Presiding Officer?
Fr. Bernas: yes.
xxx xxx xxx
Mr. Nolledo: And I remember very well that in the Reverend
Father Bernas' well written book, he said that the decision was
designed merely to accommodate former delegate Ernesto Ang and
that the definition on natural-born has no retroactive effect. Now it
seems that the Reverend Father Bernas is going against this
intention by supporting the amendment?
Fr. Bernas: As the Commissioner can see, there has been an
evolution in my thinking. (Records of the Constitutional Commission,
Vol. 1, p. 189)
xxx xxx xxx
Mr. Rodrigo: But this provision becomes very important
because his election of Philippine citizenship makes him not only a
Filipino citizen but a natural-born Filipino citizen entitling him to run
for Congress. . .
Fr. Bernas: Correct. We are quite aware of that and for that
reason we will leave it to the body to approve that provision of
section 4.
Mr. Rodrigo: I think there is a good basis for the provision
because it strikes me as unfair that the Filipino citizen who was born
a day before January 17, 1973 cannot be a Filipino citizen or a
natural-born citizen. (Records of the Constitutional Commission, Vol.
1, p. 231)
xxx xxx xxx
Mr. Rodrigo: The purpose of that provision is to remedy an
inequitable situation.1avvphi1 Between 1935 and 1973 when we
were under the 1935 Constitution, those born of Filipino fathers but
alien mothers were natural-born Filipinos. However, those born of
Filipino mothers but alien fathers would have to elect Philippine
citizenship upon reaching the age of majority; and if they do elect,
they become Filipino citizens but not natural-born Filipino citizens.
(Records of the Constitutional Commission, Vol. 1, p. 356)
The foregoing significantly reveals the intent of the framers. To
make the provision prospective from February 3, 1987 is to give a
narrow interpretation resulting in an inequitable situation. It must
also be retroactive.
It should be noted that in construing the law, the Courts are not
always to be hedged in by the literal meaning of its language. The
spirit and intendment thereof, must prevail over the letter,
especially where adherence to the latter would result in absurdity
and injustice. (Casela v. Court of Appeals, 35 SCRA 279 [1970])
A Constitutional provision should be construed so as to give it
effective operation and suppress the mischief at which it is aimed,
hence, it is the spirit of the provision which should prevail over the
letter thereof. (Jarrolt v. Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA
413 [1970]:
To that primordial intent, all else is subordinated. Our Constitution,
any constitution is not to be construed narrowly or pedantically for
the prescriptions therein contained, to paraphrase Justice Holmes,
are not mathematical formulas having their essence in their form
but are organic living institutions, the significance of which is vital
not formal. . . . (p. 427)
The provision in question was enacted to correct the anomalous
situation where one born of a Filipino father and an alien mother
was automatically granted the status of a natural-born citizen while
one born of a Filipino mother and an alien father would still have to
elect Philippine citizenship. If one so elected, he was not, under
earlier laws, conferred the status of a natural-born.
Under the 1973 Constitution, those born of Filipino fathers and
those born of Filipino mothers with an alien father were placed on
equal footing. They were both considered as natural-born citizens.
Hence, the bestowment of the status of "natural-born" cannot be
made to depend on the fleeting accident of time or result in two
kinds of citizens made up of essentially the same similarly situated
members.
It is for this reason that the amendments were enacted, that is, in
order to remedy this accidental anomaly, and, therefore, treat
equally all those born before the 1973 Constitution and who elected
Philippine citizenship either before or after the effectivity of that
Constitution.
The Constitutional provision in question is, therefore curative in
nature. The enactment was meant to correct the inequitable and
absurd situation which then prevailed, and thus, render those acts
valid which would have been nil at the time had it not been for the
curative provisions. (See Development Bank of the Philippines v.
Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a natural born
Filipina at the time of her marriage. Crucial to this case is the issue
of whether or not the respondent elected or chose to be a Filipino
citizen.
Election becomes material because Section 2 of Article IV of the
Constitution accords natural born status to children born of Filipino
mothers before January 17, 1973, if they elect citizenship upon
reaching the age of majority.
To expect the respondent to have formally or in writing elected
citizenship when he came of age is to ask for the unnatural and
unnecessary. The reason is obvious. He was already a citizen. Not
only was his mother a natural born citizen but his father had been
naturalized when the respondent was only nine (9) years old. He
could not have divined when he came of age that in 1973 and 1987
the Constitution would be amended to require him to have filed a
sworn statement in 1969 electing citizenship inspite of his already
having been a citizen since 1957. In 1969, election through a sworn
statement would have been an unusual and unnecessary procedure
for one who had been a citizen since he was nine years old.
We have jurisprudence that defines "election" as both a formal and
an informal process.
In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the
Court held that the exercise of the right of suffrage and the
participation in election exercises constitute a positive act of
election of Philippine citizenship. In the exact pronouncement of the
Court, we held:
Esteban's exercise of the right of suffrage when he came of age,
constitutes a positive act of election of Philippine citizenship (p. 52;
emphasis supplied)
The private respondent did more than merely exercise his right of
suffrage. He has established his life here in the Philippines.
For those in the peculiar situation of the respondent who cannot be
expected to have elected citizenship as they were already citizens,
we apply the In Re Mallare rule.
The respondent was born in an outlying rural town of Samar where
there are no alien enclaves and no racial distinctions. The
respondent has lived the life of a Filipino since birth. His father
applied for naturalization when the child was still a small boy. He is
a Roman Catholic. He has worked for a sensitive government
agency. His profession requires citizenship for taking the
examinations and getting a license. He has participated in political
exercises as a Filipino and has always considered himself a Filipino
citizen. There is nothing in the records to show that he does not
embrace Philippine customs and values, nothing to indicate any
tinge of alien-ness no acts to show that this country is not his
natural homeland. The mass of voters of Northern Samar are frilly
aware of Mr. Ong's parentage. They should know him better than
any member of this Court will ever know him. They voted by
overwhelming numbers to have him represent them in Congress.
Because of his acts since childhood, they have considered him as a
Filipino.
The filing of sworn statement or formal declaration is a requirement
for those who still have to elect citizenship. For those already
Filipinos when the time to elect came up, there are acts of
deliberate choice which cannot be less binding. Entering a
profession open only to Filipinos, serving in public office where
citizenship is a qualification, voting during election time, running for
public office, and other categorical acts of similar nature are
themselves formal manifestations of choice for these persons.
An election of Philippine citizenship presupposes that the person
electing is an alien. Or his status is doubtful because he is a national
of two countries. There is no doubt in this case about Mr. Ong's
being a Filipino when he turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of
the private respondent would not only have been superfluous but it
would also have resulted in an absurdity. How can a Filipino citizen
elect Philippine citizenship?
The respondent HRET has an interesting view as to how Mr. Ong
elected citizenship. It observed that "when protestee was only nine
years of age, his father, Jose Ong Chuan became a naturalized
Filipino. Section 15 of the Revised Naturalization Act squarely
applies its benefit to him for he was then a minor residing in this
country. Concededly, it was the law itself that had already elected
Philippine citizenship for protestee by declaring him as such."
(Emphasis supplied)
The petitioners argue that the respondent's father was not, validly,
a naturalized citizen because of his premature taking of the oath of
citizenship.
The Court cannot go into the collateral procedure of stripping Mr.
Ong's father of his citizenship after his death and at this very late
date just so we can go after the son.
The petitioners question the citizenship of the father through a
collateral approach. This can not be done. In our jurisdiction, an
attack on a person's citizenship may only be done through a direct
action for its nullity. (See Queto v. Catolico, 31 SCRA 52 [1970])
To ask the Court to declare the grant of Philippine citizenship to Jose
Ong Chuan as null and void would run against the principle of due
process. Jose Ong Chuan has already been laid to rest. How can he
be given a fair opportunity to defend himself. A dead man cannot
speak. To quote the words of the HRET "Ong Chuan's lips have long
been muted to perpetuity by his demise and obviously he could not
use beyond where his mortal remains now lie to defend himself
were this matter to be made a central issue in this case."
The issue before us is not the nullification of the grant of citizenship
to Jose Ong Chuan. Our function is to determine whether or not the
HRET committed abuse of authority in the exercise of its powers.
Moreover, the respondent traces his natural born citizenship
through his mother, not through the citizenship of his father. The
citizenship of the father is relevant only to determine whether or
not the respondent "chose" to be a Filipino when he came of age. At
that time and up to the present, both mother and father were
Filipinos. Respondent Ong could not have elected any other
citizenship unless he first formally renounced Philippine citizenship
in favor of a foreign nationality. Unlike other persons faced with a
problem of election, there was no foreign nationality of his father
which he could possibly have chosen.
There is another reason why we cannot declare the HRET as having
committed manifest grave abuse of discretion. The same issue of
natural-born citizenship has already been decided by the
Constitutional Convention of 1971 and by the Batasang Pambansa
convened by authority of the Constitution drafted by that
Convention. Emil Ong, full blood brother of the respondent, was
declared and accepted as a natural born citizen by both bodies.
Assuming that our opinion is different from that of the
Constitutional Convention, the Batasang Pambansa, and the
respondent HRET, such a difference could only be characterized as
error. There would be no basis to call the HRET decision so arbitrary
and whimsical as to amount to grave abuse of discretion.
What was the basis for the Constitutional Convention's declaring
Emil Ong a natural born citizen?
Under the Philippine Bill of 1902, inhabitants of the Philippines who
were Spanish subjects on the 11th day of April 1899 and then
residing in said islands and their children born subsequent thereto
were conferred the status of a Filipino citizen.
Was the grandfather of the private respondent a Spanish subject?
Article 17 of the Civil Code of Spain enumerates those who were
considered Spanish Subjects, viz:
ARTICLE 17. The following are Spaniards:
1. Persons born in Spanish territory.
2. Children born of a Spanish father or mother, even though
they were born out of Spain.
3. Foreigners who may have obtained naturalization papers.
4. Those without such papers, who may have acquired
domicile in any town in the Monarchy. (Emphasis supplied)
The domicile of a natural person is the place of his habitual
residence. This domicile, once established is considered to continue
and will not be deemed lost until a new one is established. (Article
50, NCC; Article 40, Civil Code of Spain; Zuellig v. Republic, 83 Phil.
768 [1949])
As earlier stated, Ong Te became a permanent resident of Laoang,
Samar around 1895. Correspondingly, a certificate of residence was
then issued to him by virtue of his being a resident of Laoang,
Samar. (Report of the Committee on Election Protests and
Credentials of the 1971 Constitutional Convention, September 7,
1972, p. 3)
The domicile that Ong Te established in 1895 continued until April
11, 1899; it even went beyond the turn of the 19th century. It is also
in this place were Ong Te set-up his business and acquired his real
property.
As concluded by the Constitutional Convention, Ong Te falls within
the meaning of sub-paragraph 4 of Article 17 of the Civil Code of
Spain.
Although Ong Te made brief visits to China, he, nevertheless, always
returned to the Philippines. The fact that he died in China, during
one of his visits in said country, was of no moment. This will not
change the fact that he already had his domicile fixed in the
Philippines and pursuant to the Civil Code of Spain, he had become
a Spanish subject.
If Ong Te became a Spanish subject by virtue of having established
his domicile in a town under the Monarchy of Spain, necessarily,
Ong Te was also an inhabitant of the Philippines for an inhabitant
has been defined as one who has actual fixed residence in a place;
one who has a domicile in a place. (Bouvier's Law Dictionary, Vol. II)
A priori, there can be no other logical conclusion but to educe that
Ong Te qualified as a Filipino citizen under the provisions of section
4 of the Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in concluding that
the private respondent was a natural-born Filipino.
The petitioners' sole ground in disputing this fact is that document
presented to prove it were not in compliance with the best the
evidence rule. The petitioners allege that the private respondent
failed to present the original of the documentary evidence,
testimonial evidence and of the transcript of the proceedings of the
body which the aforesaid resolution of the 1971 Constitutional
Convention was predicated.
On the contrary, the documents presented by the private
respondent fall under the exceptions to the best evidence rule.
It was established in the proceedings before the HRET that the
originals of the Committee Report No. 12, the minutes of the
plenary session of 1971 Constitutional Convention held on
November 28, 1972 cannot be found.
This was affirmed by Atty. Ricafrente, Assistant Secretary of the
1971 Constitutional Convention; by Atty. Nolledo, Delegate to the
1971 Constitutional Convention; and by Atty. Antonio Santos, Chief
Librarian of the U.P Law Center, in their respective testimonies given
before the HRET to the effect that there is no governmental agency
which is the official custodian of the records of the 1971
Constitutional Convention. (TSN, December 12, 1988, pp. 30-31;
TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989, p. 44; TSN,
February 6, 1989, pp. 28-29)
The execution of the originals was established by Atty. Ricafrente,
who as the Assistant Secretary of the 1971 Constitutional
Convention was the proper party to testify to such execution. (TSN,
December 12, 1989, pp. 11-24)
The inability to produce the originals before the HRET was also
testified to as aforestated by Atty. Ricafrente, Atty. Nolledo, and
Atty. Santos. In proving the inability to produce, the law does not
require the degree of proof to be of sufficient certainty; it is enough
that it be shown that after a bona fide diligent search, the same
cannot be found. (see Government of P.I. v. Martinez, 44 Phil. 817
[1918])
Since the execution of the document and the inability to produce
were adequately established, the contents of the questioned
documents can be proven by a copy thereof or by the recollection of
witnesses.
Moreover, to erase all doubts as to the authenticity of the
documentary evidence cited in the Committee Report, the former
member of the 1971 Constitutional Convention, Atty. Nolledo, when
he was presented as a witness in the hearing of the protest against
the private respondent, categorically stated that he saw the
disputed documents presented during the hearing of the election
protest against the brother of the private respondent. (TSN,
February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-president of
the Constitutional Convention, states that he was presiding officer
of the plenary session which deliberated on the report on the
election protest against Delegate Emil Ong. He cites a long list of
names of delegates present. Among them are Mr. Chief Justice
Fernan, and Mr. Justice Davide, Jr. The petitioners could have
presented any one of the long list of delegates to refute Mr. Ong's
having been declared a natural-born citizen. They did not do so. Nor
did they demur to the contents of the documents presented by the
private respondent. They merely relied on the procedural objections
respecting the admissibility of the evidence presented.
The Constitutional Convention was the sole judge of the
qualifications of Emil Ong to be a member of that body. The HRET by
explicit mandate of the Constitution, is the sole judge of the
qualifications of Jose Ong, Jr. to be a member of Congress. Both
bodies deliberated at length on the controversies over which they
were sole judges. Decisions were arrived at only after a full
presentation of all relevant factors which the parties wished to
present. Even assuming that we disagree with their conclusions, we
cannot declare their acts as committed with grave abuse of
discretion. We have to keep clear the line between error and grave
abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of respondent
Ong.
The petitioners lose sight of the meaning of "residence" under the
Constitution. The term "residence" has been understood as
synonymous with domicile not only under the previous
Constitutions but also under the 1987 Constitution.
The deliberations of the Constitutional Commission reveal that the
meaning of residence vis-a-vis the qualifications of a candidate for
Congress continues to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the
1971 Constitutional Convention, there was an attempt to require
residence in the place not less than one year immediately preceding
the day of the elections. So my question is: What is the Committee's
concept of residence of a candidate for the legislature? Is it actual
residence or is it the concept of domicile or constructive residence?
Mr. Davide: Madame President, in so far as the regular
members of the National Assembly are concerned, the proposed
section merely provides, among others, and a resident thereof, that
is, in the district, for a period of not less than one year preceding the
day of the election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was domicile. (Records of
the 1987 Constitutional Convention, Vol. 11, July 22, 1986. p. 87)
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2.
I think Commissioner Nolledo has raised the same point that
"resident" has been interpreted at times as a matter of intention
rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at
the proper time to go back to actual residence rather than mere
intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on
Suffrage says that Filipinos living abroad may vote as enacted by
law. So, we have to stick to the original concept that it should be by
domicile and not physical and actual residence. (Records of the 1987
Constitutional Commission, Vol. 11, July 22, 1986, p. 110)
The framers of the Constitution adhered to the earlier definition
given to the word "residence" which regarded it as having the same
meaning as domicile.
The term "domicile" denotes a fixed permanent residence to which
when absent for business or pleasure, one intends to return. (Ong
Huan Tin v. Republic, 19 SCRA 966 [1967]) The absence of a person
from said permanent residence, no matter how long,
notwithstanding, it continues to be the domicile of that person. In
other words, domicile is characterized by animus revertendi (Ujano
v. Republic, 17 SCRA 147 [1966])
The domicile of origin of the private respondent, which was the
domicile of his parents, is fixed at Laoang, Samar. Contrary to the
petitioners' imputation, Jose Ong, Jr. never abandoned said
domicile; it remained fixed therein even up to the present.
The private respondent, in the proceedings before the HRET
sufficiently established that after the fire that gutted their house in
1961, another one was constructed.
Likewise, after the second fire which again destroyed their house in
1975, a sixteen-door apartment was built by their family, two doors
of which were reserved as their family residence. (TSN, Jose Ong, Jr.,
November 18,1988, p. 8)
The petitioners' allegation that since the private respondent owns
no property in Laoang, Samar, he cannot, therefore, be a resident of
said place is misplaced.
The properties owned by the Ong Family are in the name of the
private respondent's parents. Upon the demise of his parents,
necessarily, the private respondent, pursuant to the laws of
succession, became the co-owner thereof (as a co- heir),
notwithstanding the fact that these were still in the names of his
parents.
Even assuming that the private respondent does not own any
property in Samar, the Supreme Court in the case of De los Reyes v.
Solidum (61 Phil. 893 [1935]) held that it is not required that a
person should have a house in order to establish his residence and
domicile. It is enough that he should live in the municipality or in a
rented house or in that of a friend or relative. (Emphasis supplied)
To require the private respondent to own property in order to be
eligible to run for Congress would be tantamount to a property
qualification. The Constitution only requires that the candidate
meet the age, citizenship, voting and residence requirements.
Nowhere is it required by the Constitution that the candidate should
also own property in order to be qualified to run. (see Maquera v.
Borra, 122 Phil. 412 [1965])
It has also been settled that absence from residence to pursue
studies or practice a profession or registration as a voter other than
in the place where one is elected, does not constitute loss of
residence. (Faypon v. Quirino, 96 Phil. 294 [1954])
As previously stated, the private respondent stayed in Manila for
the purpose of finishing his studies and later to practice his
profession, There was no intention to abandon the residence in
Laoang, Samar. On the contrary, the periodical journeys made to his
home province reveal that he always had the animus revertendi.
The Philippines is made up not only of a single race; it has, rather,
undergone an interracial evolution. Throughout our history, there
has been a continuing influx of Malays, Chinese, Americans,
Japanese, Spaniards and other nationalities. This racial diversity
gives strength to our country.
Many great Filipinos have not been whole-blooded nationals, if
there is such a person, for there is none. To mention a few, the
great Jose Rizal was part Chinese, the late Chief Justice Claudio
Teehankee was part Chinese, and of course our own President,
Corazon Aquino is also part Chinese. Verily, some Filipinos of whom
we are proud were ethnically more Chinese than the private
respondent.
Our citizens no doubt constitute the country's greatest wealth.
Citizenship is a special privilege which one must forever cherish.
However, in order to truly revere this treasure of citizenship, we do
not, on the basis of too harsh an interpretation, have to
unreasonably deny it to those who qualify to share in its richness.
Under the overly strict jurisprudence surrounding our antiquated
naturalization laws only the very affluent backed by influential
patrons, who were willing to suffer the indignities of a lengthy,
sometimes humiliating, and often corrupt process of clearances by
minor bureaucrats and whose lawyers knew how to overcome so
many technical traps of the judicial process were able to acquire
citizenship. It is time for the naturalization law to be revised to
enable a more positive, affirmative, and meaningful examination of
an applicant's suitability to be a Filipino. A more humane, more
indubitable and less technical approach to citizenship problems is
essential.
WHEREFORE, the petitions are hereby DISMISSED. The questioned
decision of the House of Representatives Electoral Tribunal is
AFFIRMED. Respondent Jose Ong, Jr. is declared a natural-born
citizen of the Philippines and a resident of Laoang, Northern Samar.
SO ORDERED
EN BANC
G.R. No. L-6355-56 August 31, 1953
PASTOR M. ENDENCIA and FERNANDO JUGO, plaintiffs-appellees,
vs.
SATURNINO DAVID, as Collector of Internal Revenue, defendant-
appellant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jose P.
Alejandro for appellant.
Manuel O. Chan for appellees.
MONTEMAYOR, J.:
This is a joint appeal from the decision of the Court of First Instance
of Manila declaring section 13 of Republic Act No. 590
unconstitutional, and ordering the appellant Saturnino David as
Collector of Internal Revenue to re-fund to Justice Pastor M.
Endencia the sum of P1,744.45, representing the income tax
collected on his salary as Associate Justice of the Court of Appeals in
1951, and to Justice Fernando Jugo the amount of P2,345.46,
representing the income tax collected on his salary from January
1,1950 to October 19, 1950, as Presiding Justice of the Court of
Appeals, and from October 20, 1950 to December 31,1950, as
Associate Justice of the Supreme Court, without special
pronouncement as to costs.
Because of the similarity of the two cases, involving as they do the
same question of law, they were jointly submitted for determination
in the lower court. Judge Higinio B. Macadaeg presiding, in a rather
exhaustive and well considered decision found and held that under
the doctrine laid down by this Court in the case of Perfecto vs.
Meer, 85 Phil., 552, the collection of income taxes from the salaries
of Justice Jugo and Justice Endencia was a diminution of their
compensation and therefore was in violation of the Constitution of
the Philippines, and so ordered the refund of said taxes.
We see no profit and necessity in again discussing and considering
the proposition and the arguments pro and cons involved in the
case of Perfecto vs. Meer, supra, which are raised, brought up and
presented here. In that case, we have held despite the ruling
enunciated by the United States Federal Supreme Court in the case
of O 'Malley vs. Woodrought 307 U. S., 277, that taxing the salary of
a judicial officer in the Philippines is a diminution of such salary and
so violates the Constitution. We shall now confine our-selves to a
discussion and determination of the remaining question of whether
or not Republic Act No. 590, particularly section 13, can justify and
legalize the collection of income tax on the salary of judicial officers.
According to the brief of the Solicitor General on behalf of appellant
Collector of Internal Revenue, our decision in the case of Perfecto
vs. Meer, supra, was not received favorably by Congress, because
immediately after its promulgation, Congress enacted Republic Act
No. 590. To bring home his point, the Solicitor General reproduced
what he considers the pertinent discussion in the Lower House of
House Bill No. 1127 which became Republic Act No. 590.
For purposes of reference, we are reproducing section 9, Article VIII
of our Constitution:.
SEC. 9. The members of the Supreme Court and all judges of inferior
courts shall hold office during good behavior, until they reach the
age of seventy years, or become incapacitated to discharge the
duties of their office. They shall receive such compensation as may
be fixed by law, which shall not be diminished during their
continuance in office. Until the Congress shall provide otherwise,
the Chief Justice of the Supreme Court shall receive an annual
compensation of sixteen thousand pesos, and each Associate
Justice, fifteen thousand pesos.
As already stated construing and applying the above constitutional
provision, we held in the Perfecto case that judicial officers are
exempt from the payment of income tax on their salaries, because
the collection thereof by the Government was a decrease or
diminution of their salaries during their continuance in office, a
thing which is expressly prohibited by the Constitution. Thereafter,
according to the Solicitor General, because Congress did not
favorably receive the decision in the Perfecto case, Congress
promulgated Republic Act No. 590, if not to counteract the ruling in
that decision, at least now to authorize and legalize the collection of
income tax on the salaries of judicial officers. We quote section 13
of Republic Act No. 590:
SEC 13. No salary wherever received by any public officer of the
Republic of the Philippines shall be considered as exempt from the
income tax, payment of which is hereby declared not to be
dimunition of his compensation fixed by the Constitution or by law.
So we have this situation. The Supreme Court in a decision
interpreting the Constitution, particularly section 9, Article VIII, has
held that judicial officers are exempt from payment of income tax
on their salaries, because the collection thereof was a diminution of
such salaries, specifically prohibited by the Constitution. Now comes
the Legislature and in section 13, Republic Act No. 590, says that "no
salary wherever received by any public officer of the Republic
(naturally including a judicial officer) shall be considered as exempt
from the income tax," and proceeds to declare that payment of said
income tax is not a diminution of his compensation. Can the
Legislature validly do this? May the Legislature lawfully declare the
collection of income tax on the salary of a public official, specially a
judicial officer, not a decrease of his salary, after the Supreme Court
has found and decided otherwise? To determine this question, we
shall have to go back to the fundamental principles regarding
separation of powers.
Under our system of constitutional government, the Legislative
department is assigned the power to make and enact laws. The
Executive department is charged with the execution of carrying out
of the provisions of said laws. But the interpretation and application
of said laws belong exclusively to the Judicial department. And this
authority to interpret and apply the laws extends to the
Constitution. Before the courts can determine whether a law is
constitutional or not, it will have to interpret and ascertain the
meaning not only of said law, but also of the pertinent portion of
the Constitution in order to decide whether there is a conflict
between the two, because if there is, then the law will have to give
way and has to be declared invalid and unconstitutional.
Defining and interpreting the law is a judicial function and the
legislative branch may not limit or restrict the power granted to the
courts by the Constitution. (Bandy vs. Mickelson et al., 44N. W., 2nd
341, 342.)
When it is clear that a statute transgresses the authority vested in
the legislature by the Constitution, it is the duty of the courts to
declare the act unconstitutional because they cannot shrink from it
without violating their oaths of office. This duty of the courts to
maintain the Constitution as the fundamental law of the state is
imperative and unceasing; and, as Chief Justice Marshall said,
whenever a statute is in violation of the fundamental law, the courts
must so adjudge and thereby give effect to the Constitution. Any
other course would lead to the destruction of the Constitution.
Since the question as to the constitutionality of a statute is a judicial
matter, the courts will not decline the exercise of jurisdiction upon
the suggestion that action might be taken by political agencies in
disregard of the judgment of the judicial tribunals. (11 Am. Jur., 714-
715.)
Under the American system of constitutional government, among
the most important functions in trusted to the judiciary are the
interpreting of Constitutions and, as a closely connected power, the
determination of whether laws and acts of the legislature are or are
not contrary to the provisions of the Federal and State
Constitutions. (11 Am. Jur., 905.).
By legislative fiat as enunciated in section 13, Republic Act NO. 590,
Congress says that taxing the salary of a judicial officer is not a
decrease of compensation. This is a clear example of interpretation
or ascertainment of the meaning of the phrase "which shall not be
diminished during their continuance in office," found in section 9,
Article VIII of the Constitution, referring to the salaries of judicial
officers. This act of interpreting the Constitution or any part thereof
by the Legislature is an invasion of the well-defined and established
province and jurisdiction of the Judiciary.
The rule is recognized elsewhere that the legislature cannot pass
any declaratory act, or act declaratory of what the law was before
its passage, so as to give it any binding weight with the courts. A
legislative definition of a word as used in a statute is not conclusive
of its meaning as used elsewhere; otherwise, the legislature would
be usurping a judicial function in defining a term. (11 Am. Jur., 914,
emphasis supplied)
The legislature cannot, upon passing a law which violates a
constitutional provision, validate it so as to prevent an attack
thereon in the courts, by a declaration that it shall be so construed
as not to violate the constitutional inhibition. (11 Am. Jur., 919,
emphasis supplied)
We have already said that the Legislature under our form of
government is assigned the task and the power to make and enact
laws, but not to interpret them. This is more true with regard to the
interpretation of the basic law, the Constitution, which is not within
the sphere of the Legislative department. If the Legislature may
declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case
ascertain its meaning by interpretation and applied it in a decision,
this would surely cause confusion and instability in judicial processes
and court decisions. Under such a system, a final court
determination of a case based on a judicial interpretation of the law
of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the
Constitution by the Legislative department. That would be neither
wise nor desirable, besides being clearly violative of the
fundamental, principles of our constitutional system of government,
particularly those governing the separation of powers.
So much for the constitutional aspect of the case. Considering the
practical side thereof, we believe that the collection of income tax
on a salary is an actual and evident diminution thereof. Under the
old system where the in-come tax was paid at the end of the year or
sometime thereafter, the decrease may not be so apparent and
clear. All that the official who had previously received his full salary
was called upon to do, was to fulfill his obligation and to exercise his
privilege of paying his income tax on his salary. His salary fixed by
law was received by him in the amount of said tax comes from his
other sources of income, he may not fully realize the fact that his
salary had been decreased in the amount of said income tax. But
under the present system of withholding the income tax at the
source, where the full amount of the income tax corresponding to
his salary is computed in advance and divided into equal portions
corresponding to the number of pay-days during the year and
actually deducted from his salary corresponding to each payday,
said official actually does not receive his salary in full, because the
income tax is deducted therefrom every payday, that is to say, twice
a month. Let us take the case of Justice Endencia. As Associate
Justice of the Court of Appeals, his salary is fixed at p12,000 a year,
that is to say, he should receive P1,000 a month or P500 every
payday, — fifteenth and end of month. In the present case, the
amount collected by the Collector of Internal Revenue on said salary
is P1,744.45 for one year. Divided by twelve (months) we shall have
P145.37 a month. And further dividing it by two paydays will bring it
down to P72.685, which is the income tax deducted form the
collected on his salary each half month. So, if Justice Endencia's
salary as a judicial officer were not exempt from payment of the
income tax, instead of receiving P500 every payday, he would be
actually receiving P427.31 only, and instead of receiving P12,000 a
year, he would be receiving but P10,255.55. Is it not therefor clear
that every payday, his salary is actually decreased by P72.685 and
every year is decreased by P1,744.45?
Reading the discussion in the lower House in connection with House
Bill No. 1127, which became Republic Act No. 590, it would seem
that one of the main reasons behind the enactment of the law was
the feeling among certain legislators that members of the Supreme
Court should not enjoy any exemption and that as citizens, out of
patriotism and love for their country, they should pay income tax on
their salaries. It might be stated in this connection that the
exemption is not enjoyed by the members of the Supreme Court
alone but also by all judicial officers including Justices of the Court of
Appeals and judges of inferior courts. The exemption also extends to
other constitutional officers, like the President of the Republic, the
Auditor General, the members of the Commission on Elections, and
possibly members of the Board of Tax Appeals, commissioners of
the Public Service Commission, and judges of the Court of Industrial
Relations. Compares to the number of all these officials, that of the
Supreme Court Justices is relatively insignificant. There are more
than 990 other judicial officers enjoying the exemption, including 15
Justices of the Court of Appeals, about 107 Judges of First Instance,
38 Municipal Judges and about 830 Justices of the Peace. The
reason behind the exemption in the Constitution, as interpreted by
the United States Federal Supreme Court and this Court, is to
preserve the independence of the Judiciary, not only of this High
Tribunal but of the other courts, whose present membership
number more than 990 judicial officials.
The exemption was not primarily intended to benefit judicial
officers, but was grounded on public policy. As said by Justice Van
Devanter of the United States Supreme Court in the case of Evans
vs. Gore (253 U. S., 245):
The primary purpose of the prohibition against diminution was not
to benefit the judges, but, like the clause in respect of tenure, to
attract good and competent men to the bench and to promote that
independence of action and judgment which is essential to the
maintenance of the guaranties, limitations and pervading principles
of the Constitution and to the administration of justice without
respect to person and with equal concern for the poor and the rich.
Such being its purpose, it is to be construed, not as a private grant,
but as a limitation imposed in the public interest; in other words,
not restrictively, but in accord with its spirit and the principle on
which it proceeds.

Having in mind the limited number of judicial officers in the
Philippines enjoying this exemption, especially when the great bulk
thereof are justices of the peace, many of them receiving as low as
P200 a month, and considering further the other exemptions
allowed by the income tax law, such as P3,000 for a married person
and P600 for each dependent, the amount of national revenue to be
derived from income tax on the salaries of judicial officers, were if
not for the constitutional exemption, could not be large or
substantial. But even if it were otherwise, it should not affect, much
less outweigh the purpose and the considerations that prompted
the establishment of the constitutional exemption. In the same case
of Evans vs. Gore, supra, the Federal Supreme Court declared "that
they (fathers of the Constitution) regarded the independence of the
judges as far as greater importance than any revenue that could
come from taxing their salaries.
When a judicial officer assumed office, he does not exactly ask for
exemption from payment of income tax on his salary, as a privilege .
It is already attached to his office, provided and secured by the
fundamental law, not primarily for his benefit, but based on public
interest, to secure and preserve his independence of judicial
thought and action. When we come to the members of the Supreme
Court, this excemption to them is relatively of short duration.
Because of the limited membership in this High Tribunal, eleven,
and due to the high standards of experience, practice and training
required, one generally enters its portals and comes to join its
membership quite late in life, on the aver-age, around his sixtieth
year, and being required to retire at seventy, assuming that he does
not die or become incapacitated earlier, naturally he is not in a
position to receive the benefit of exemption for long. It is rather to
the justices of the peace that the exemption can give more benefit.
They are relatively more numerous, and because of the meager
salary they receive, they can less afford to pay the income tax on it
and its diminution by the amount of the income tax if paid would be
real, substantial and onerous.
Considering exemption in the abstract, there is nothing unusual or
abhorrent in it, as long as it is based on public policy or public
interest. While all other citizens are subject to arrest when charged
with the commission of a crime, members of the Senate and House
of Representatives except in cases of treason, felony and breach of
the peace are exempt from arrest, during their attendance in the
session of the Legislature; and while all other citizens are generally
liable for any speech, remark or statement, oral or written, tending previous interpretation already given in a case by the highest court
to cause the dishonor, discredit or contempt of a natural or juridical of the land.
person or to blacken the memory of one who is dead, Senators and
Congressmen in making such statements during their sessions are In the views of the foregoing considerations, the decision appealed
extended immunity and exemption. from is hereby affirmed, with no pronouncement as to costs.
And as to tax exemption, there are not a few citizens who enjoy this Pablo, Bengzon, Padilla, Tuason, Reyes, and Labrador, JJ., concur.
exemption. Persons, natural and juridical, are exempt from taxes on
their lands, buildings and improvements thereon when used
exclusively for educational purposes, even if they derive income Separate Opinions
therefrom. (Art. VI, Sec. 22 [3].) Holders of government bonds are
exempted from the payment of taxes on the income or interest they BAUTISTA ANGELO, J., concurring:
receive therefrom (sec. 29 (b) [4], National Internal Revenue Code
as amended by Republic Act No. 566). Payments or income received Without expressing any opinion on the doctrine laid down by this
by any person residing in the Philippines under the laws of the Court in the case of Perfecto vs. Meer, G. R. No. L-2314, in view of
United States administered by the United States Veterans the part I had in that case as former Solicitor General, I wish
Administration are exempt from taxation. (Republic Act No. 360). however to state that I concur in the opinion of the majority to the
Funds received by officers and enlisted men of the Philippine Army effect that section 13, Republic Act No. 590, in so far as it provides
who served in the Armed Forces of the United States, allowances that taxing of the salary of a judicial officer shall be considered "not
earned by virtue of such services corresponding to the taxable years to be a diminution of his compensation fixed by the Constitution or
1942 to 1945, inclusive, are exempted from income tax. (Republic by law", constitutes an invasion of the province and jurisdiction of
Act No. 210). The payment of wages and allowances of officers and the judiciary. In this sense, I am of the opinion that said section is
enlisted men of the Army Forces of the Philippines sent to Korea are null and void, it being a transgression of the fundamental principle
also exempted from taxation. (Republic Act No. 35). In other words, underlying the separation of powers.
for reasons of public policy and public interest, a citizen may
justifiably by constitutional provision or statute be exempted from
his ordinary obligation of paying taxes on his income. Under the PARAS, C.J., concurring and dissenting:
same public policy and perhaps for the same it not higher
considerations, the framers of the Constitution deemed it wise and I dissent for the same reasons stated in the dissenting opinion of
necessary to exempt judicial officers from paying taxes on their Mr. Justice Ozaeta in Perfecto vs. Meer, 85 Phil., 552, in which I
salaries so as not to decrease their compensation, thereby insuring concurred. But I disagree with the majority in ruling that no
the independence of the Judiciary. legislation may provide that it be held valid although against a
provision of the Constitution.
In conclusion we reiterate the doctrine laid down in the case of
Perfecto vs. Meer, supra, to the effect that the collection of income
tax on the salary of a judicial officer is a diminution thereof and so
violates the Constitution. We further hold that the interpretation
and application of the Constitution and of statutes is within the
exclusive province and jurisdiction of the Judicial department, and
that in enacting a law, the Legislature may not legally provide
therein that it be interpreted in such a way that it may not violate a
Constitutional prohibition, thereby tying the hands of the courts in
their task of later interpreting said statute, specially when the
interpretation sought and provided in said statute runs counter to a
EN BANC
G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO,
and DIONISIO C. MAYOR, respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral
Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner,
Jose A. Angara, for the issuance of a writ of prohibition to restrain
and prohibit the Electoral Commission, one of the respondents,
from taking further cognizance of the protest filed by Pedro Ynsua,
another respondent, against the election of said petitioner as
member of the National Assembly for the first assembly district of
the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted
by the respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose
A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and
Dionisio Mayor, were candidates voted for the position of member
of the National Assembly for the first district of the Province of
Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers,
proclaimed the petitioner as member-elect of the National
Assembly for the said district, for having received the most number
of votes;
(3) That on November 15, 1935, the petitioner took his oath of
office;
(4) That on December 3, 1935, the National Assembly in session
assembled, passed the following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra
quienes no se hubiere presentado debidamente una protesta antes
de la adopcion de la presente resolucion sean, como por la
presente, son aprobadas y confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent Pedro Ynsua
filed before the Electoral Commission a "Motion of Protest" against
the election of the herein petitioner, Jose A. Angara, being the only
protest filed after the passage of Resolutions No. 8 aforequoted,
and praying, among other-things, that said respondent be declared
elected member of the National Assembly for the first district of
Tayabas, or that the election of said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a
resolution, paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya
presentado en o antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A.
Angara, one of the respondents in the aforesaid protest, filed before
the Electoral Commission a "Motion to Dismiss the Protest", alleging
(a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that
Resolution No. 8 of the National Assembly was adopted in the
legitimate exercise of its constitutional prerogative to prescribe the
period during which protests against the election of its members
should be presented; (b) that the aforesaid resolution has for its
object, and is the accepted formula for, the limitation of said period;
and (c) that the protest in question was filed out of the prescribed
period;
(8) That on December 27, 1935, the herein respondent, Pedro
Ynsua, filed an "Answer to the Motion of Dismissal" alleging that
there is no legal or constitutional provision barring the presentation
of a protest against the election of a member of the National
Assembly after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A.
Angara, filed a "Reply" to the aforesaid "Answer to the Motion of
Dismissal";
(10) That the case being submitted for decision, the Electoral
Commission promulgated a resolution on January 23, 1936, denying
herein petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for
the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the
electoral Commission solely as regards the merits of contested
elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction the power
to regulate the proceedings of said election contests, which power
has been reserved to the Legislative Department of the Government
or the National Assembly;
(c) That like the Supreme Court and other courts created in
pursuance of the Constitution, whose exclusive jurisdiction relates
solely to deciding the merits of controversies submitted to them for
decision and to matters involving their internal organization, the
Electoral Commission can regulate its proceedings only if the
National Assembly has not availed of its primary power to so
regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore,
valid and should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended
to the Constitution and paragraph 6 of article 7 of the Tydings-
McDuffie Law (No. 127 of the 73rd Congress of the United States) as
well as under section 1 and 3 (should be sections 1 and 2) of article
VIII of the Constitution, this Supreme Court has jurisdiction to pass
upon the fundamental question herein raised because it involves an
interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an
answer in behalf of the respondent Electoral Commission
interposing the following special defenses:
(a) That the Electoral Commission has been created by the
Constitution as an instrumentality of the Legislative Department
invested with the jurisdiction to decide "all contests relating to the
election, returns, and qualifications of the members of the National
Assembly"; that in adopting its resolution of December 9, 1935,
fixing this date as the last day for the presentation of protests
against the election of any member of the National Assembly, it
acted within its jurisdiction and in the legitimate exercise of the
implied powers granted it by the Constitution to adopt the rules and
regulations essential to carry out the power and functions conferred
upon the same by the fundamental law; that in adopting its
resolution of January 23, 1936, overruling the motion of the
petitioner to dismiss the election protest in question, and declaring
itself with jurisdiction to take cognizance of said protest, it acted in
the legitimate exercise of its quasi-judicial functions a an
instrumentality of the Legislative Department of the Commonwealth
Government, and hence said act is beyond the judicial cognizance or
control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3,
1935, confirming the election of the members of the National
Assembly against whom no protest had thus far been filed, could
not and did not deprive the electoral Commission of its jurisdiction
to take cognizance of election protests filed within the time that
might be set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-
judicial functions, created by the Constitution as an instrumentality
of the Legislative Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of section 226
and 516 of the Code of Civil Procedure, against which prohibition
would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an
answer in his own behalf on March 2, 1936, setting forth the
following as his special defense:
(a) That at the time of the approval of the rules of the Electoral
Commission on December 9, 1935, there was no existing law fixing
the period within which protests against the election of members of
the National Assembly should be filed; that in fixing December 9,
1935, as the last day for the filing of protests against the election of
members of the National Assembly, the Electoral Commission was
exercising a power impliedly conferred upon it by the Constitution,
by reason of its quasi-judicial attributes;
(b) That said respondent presented his motion of protest before the
Electoral Commission on December 9, 1935, the last day fixed by
paragraph 6 of the rules of the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction
over the protest filed by said respondent and over the parties
thereto, and the resolution of the Electoral Commission of January
23, 1936, denying petitioner's motion to dismiss said protest was an
act within the jurisdiction of the said commission, and is not
reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation
by the National Assembly of the election of its members, and that
such confirmation does not operate to limit the period within which
protests should be filed as to deprive the Electoral Commission of
jurisdiction over protest filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created
by the Constitution, endowed with quasi-judicial functions, whose
decision are final and unappealable;
( f ) That the electoral Commission, as a constitutional creation, is
not an inferior tribunal, corporation, board or person, within the
terms of sections 226 and 516 of the Code of Civil Procedure; and
that neither under the provisions of sections 1 and 2 of article II
(should be article VIII) of the Constitution and paragraph 13 of
section 1 of the Ordinance appended thereto could it be subject in
the exercise of its quasi-judicial functions to a writ of prohibition
from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No.
127 of the 73rd Congress of the united States) has no application to
the case at bar.
The case was argued before us on March 13, 1936. Before it was
submitted for decision, the petitioner prayed for the issuance of a
preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon the
merits of the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the
following two principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission
and the subject matter of the controversy upon the foregoing
related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of
its jurisdiction in assuming to the cognizance of the protest filed the
election of the herein petitioner notwithstanding the previous
confirmation of such election by resolution of the National
Assembly?
We could perhaps dispose of this case by passing directly upon the
merits of the controversy. However, the question of jurisdiction
having been presented, we do not feel justified in evading the issue.
Being a case primæ impressionis, it would hardly be consistent with
our sense of duty to overlook the broader aspect of the question
and leave it undecided. Neither would we be doing justice to the
industry and vehemence of counsel were we not to pass upon the
question of jurisdiction squarely presented to our consideration.
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. For
example, the Chief Executive under our Constitution is so far made a
check on the legislative power that this assent is required in the
enactment of laws. This, however, is subject to the further check
that a bill may become a law notwithstanding the refusal of the
President to approve it, by a vote of two-thirds or three-fourths, as
the case may be, of the National Assembly. The President has also
the right to convene the Assembly in special session whenever he
chooses. On the other hand, the National Assembly operates as a
check on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointments of
certain officers; and the concurrence of a majority of all its members
is essential to the conclusion of treaties. Furthermore, in its power
to determine what courts other than the Supreme Court shall be
established, to define their jurisdiction and to appropriate funds for
their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the
judicial power of trying impeachments. 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.
But in the main, the Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative
and the judicial departments of the government. The overlapping
and interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say just where
the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof.
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 limitation and
restrictions embodied in our Constitution are real as they should be
in any living constitution. In the United States where no express
constitutional grant is found in their constitution, the possession of
this moderating power of the courts, not to speak of its historical
origin and development there, has been set at rest by popular
acquiescence for a period of more than one and a half centuries. In
our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our 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. Even
then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by
the parties, and limited further to the constitutional question raised
or the very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in
this manner, the judiciary does not pass upon questions 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 governments of the
government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the system
itself is not "the chief palladium of constitutional liberty . . . the
people who are authors of this blessing must also be its guardians . .
. their eyes must be ever ready to mark, their voice to pronounce . . .
aggression on the authority of their constitution." In the Last and
ultimate analysis, then, must the success of our government in the
unfolding years to come be tested in the crucible of Filipino minds
and hearts than in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner
to the said body. On the other hand, the Electoral Commission has
by resolution adopted on December 9, 1935, fixed said date as the
last day for the filing of protests against the election, returns and
qualifications of members of the National Assembly,
notwithstanding the previous confirmation made by the National
Assembly as aforesaid. If, as contended by the petitioner, the
resolution of the National Assembly has the effect of cutting off the
power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National
Assembly, submitted after December 3, 1935, then the resolution of
the Electoral Commission of December 9, 1935, is mere surplusage
and had no effect. But, if, as contended by the respondents, the
Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the
resolution of December 9, 1935, by which the Electoral Commission
fixed said date as the last day for filing protests against the election,
returns and qualifications of members of the National Assembly,
should be upheld.
Here is then presented an actual controversy involving as it does a
conflict of a grave constitutional nature between the National
Assembly on the one hand, and the Electoral Commission on the
other. From the very nature of the republican government
established in our country in the light of American experience and of
our own, upon the judicial department is thrown the solemn and
inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission, as we shall
have occasion to refer hereafter, is a constitutional organ, created
for a specific purpose, namely to determine all contests relating to
the election, returns and qualifications of the members of the
National Assembly. Although the Electoral Commission may not be
interfered with, when and while acting within the limits of its
authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the people and that it is not
subject to constitutional restrictions. The Electoral Commission is
not a separate department of the government, and even if it were,
conflicting claims of authority under the fundamental law between
department powers and agencies of the government are necessarily
determined by the judiciary in justifiable and appropriate cases.
Discarding the English type and other European types of
constitutional government, the framers of our constitution adopted
the American type where the written constitution is interpreted and
given effect by the judicial department. In some countries which
have declined to follow the American example, provisions have
been inserted in their constitutions prohibiting the courts from
exercising the power to interpret the fundamental law. This is taken
as a recognition of what otherwise would be the rule that in the
absence of direct prohibition courts are bound to assume what is
logically their function. For instance, the Constitution of Poland of
1921, expressly provides that courts shall have no power to examine
the validity of statutes (art. 81, chap. IV). The former Austrian
Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic, February 29,
1920) and Spain (arts. 121-123, Title IX, Constitutional of the
Republic of 1931) especial constitutional courts are established to
pass upon the validity of ordinary laws. In our case, the nature of
the present controversy shows the necessity of a final constitutional
arbiter to determine the conflict of authority between two agencies
created by the Constitution. Were we to decline to take cognizance
of the controversy, who will determine the conflict? And if the
conflict were left undecided and undetermined, would not a void be
thus created in our constitutional system which may be in the long
run prove destructive of the entire framework? To ask these
questions is to answer them. Natura vacuum abhorret, so must we
avoid exhaustion in our constitutional system. Upon principle,
reason and authority, we are clearly of the opinion that upon the
admitted facts of the present case, this court has jurisdiction over
the Electoral Commission and the subject mater of the present
controversy for the purpose of determining the character, scope
and extent of the constitutional grant to the Electoral Commission
as "the sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now
proceed to pass upon the second proposition and determine
whether the Electoral Commission has acted without or in excess of
its jurisdiction in adopting its resolution of December 9, 1935, and in
assuming to take cognizance of the protest filed against the election
of the herein petitioner notwithstanding the previous confirmation
thereof by the National Assembly on December 3, 1935. As able
counsel for the petitioner has pointed out, the issue hinges on the
interpretation of section 4 of Article VI of the Constitution which
provides:
"SEC. 4. There shall be an Electoral Commission composed of three
Justice of the Supreme Court designated by the Chief Justice, and of
six Members chosen by the National Assembly, three of whom shall
be nominated by the party having the largest number of votes, and
three by the party having the second largest number of votes
therein. The senior Justice in the Commission shall be its Chairman.
The Electoral Commission shall be the sole judge of all contests
relating to the election, returns and qualifications of the members
of the National Assembly." It is imperative, therefore, that we delve
into the origin and history of this constitutional provision and
inquire into the intention of its framers and the people who
adopted it so that we may properly appreciate its full meaning,
import and significance.
The original provision regarding this subject in the Act of Congress
of July 1, 1902 (sec. 7, par. 5) laying down the rule that "the
assembly shall be the judge of the elections, returns, and
qualifications of its members", was taken from clause 1 of section 5,
Article I of the Constitution of the United States providing that "Each
House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members, . . . ." The Act of Congress of
August 29, 1916 (sec. 18, par. 1) modified this provision by the
insertion of the word "sole" as follows: "That the Senate and House
of Representatives, respectively, shall be the sole judges of the
elections, returns, and qualifications of their elective members . . ."
apparently in order to emphasize the exclusive the Legislative over
the particular case s therein specified. This court has had occasion to
characterize this grant of power to the Philippine Senate and House
of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil.,
886, 888.)
The first step towards the creation of an independent tribunal for
the purpose of deciding contested elections to the legislature was
taken by the sub-committee of five appointed by the Committee on
Constitutional Guarantees of the Constitutional Convention, which
sub-committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional Security
empowered to hear legislature but also against the election of
executive officers for whose election the vote of the whole nation is
required, as well as to initiate impeachment proceedings against
specified executive and judicial officer. For the purpose of hearing
legislative protests, the tribunal was to be composed of three
justices designated by the Supreme Court and six members of the
house of the legislature to which the contest corresponds, three
members to be designed by the majority party and three by the
minority, to be presided over by the Senior Justice unless the Chief
Justice is also a member in which case the latter shall preside. The
foregoing proposal was submitted by the Committee on
Constitutional Guarantees to the Convention on September 15,
1934, with slight modifications consisting in the reduction of the
legislative representation to four members, that is, two senators to
be designated one each from the two major parties in the Senate
and two representatives to be designated one each from the two
major parties in the House of Representatives, and in awarding
representation to the executive department in the persons of two
representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing
its report. As submitted to the Convention on September 24, 1934
subsection 5, section 5, of the proposed Article on the Legislative
Department, reads as follows:
The elections, returns and qualifications of the members of either
house and all cases contesting the election of any of their members
shall be judged by an Electoral Commission, constituted, as to each
House, by three members elected by the members of the party
having the largest number of votes therein, three elected by the
members of the party having the second largest number of votes,
and as to its Chairman, one Justice of the Supreme Court designated
by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with
comprehensive jurisdiction as proposed by the Committee on
Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of 1931),
was soon abandoned in favor of the proposition of the Committee
on Legislative Power to create a similar body with reduced powers
and with specific and limited jurisdiction, to be designated as a
Electoral Commission. The Sponsorship Committee modified the
proposal of the Committee on Legislative Power with respect to the
composition of the Electoral Commission and made further changes
in phraseology to suit the project of adopting a unicameral instead
of a bicameral legislature. The draft as finally submitted to the
Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the
National Assembly and all cases contesting the election of any of its
Members shall be judged by an Electoral Commission, composed of
three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of
the party having the second largest number of votes, and three
justices of the Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by Delegates
Labrador, Abordo, and others, proposing to strike out the whole
subsection of the foregoing draft and inserting in lieu thereof the
following: "The National Assembly shall be the soled and exclusive
judge of the elections, returns, and qualifications of the Members",
the following illuminating remarks were made on the floor of the
Convention in its session of December 4, 1934, as to the scope of
the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope
of the meaning of the first four lines, paragraph 6, page 11 of the
draft, reading: "The elections, returns and qualifications of the
Members of the National Assembly and all cases contesting the
election of any of its Members shall be judged by an Electoral
Commission, . . ." I should like to ask from the gentleman from Capiz
whether the election and qualification of the member whose
elections is not contested shall also be judged by the Electoral
Commission.
Mr. ROXAS. If there is no question about the election of the
members, there is nothing to be judged; that is why the word
"judge" is used to indicate a controversy. If there is no question
about the election of a member, there is nothing to be submitted to
the Electoral Commission and there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral
Commission shall confirm also the election of those whose election
is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman
knows, the action of the House of Representatives confirming the
election of its members is just a matter of the rules of the assembly.
It is not constitutional. It is not necessary. After a man files his
credentials that he has been elected, that is sufficient, unless his
election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have
observed that for purposes of the auditor, in the matter of election
of a member to a legislative body, because he will not authorize his
pay.
Mr. ROXAS. Well, what is the case with regards to the municipal
president who is elected? What happens with regards to the
councilors of a municipality? Does anybody confirm their election?
The municipal council does this: it makes a canvass and proclaims —
in this case the municipal council proclaims who has been elected,
and it ends there, unless there is a contest. It is the same case; there
is no need on the part of the Electoral Commission unless there is a
contest. The first clause refers to the case referred to by the
gentleman from Cavite where one person tries to be elected in
place of another who was declared elected. From example, in a case
when the residence of the man who has been elected is in question,
or in case the citizenship of the man who has been elected is in
question.
However, if the assembly desires to annul the power of the
commission, it may do so by certain maneuvers upon its first
meeting when the returns are submitted to the assembly. The
purpose is to give to the Electoral Commission all the powers
exercised by the assembly referring to the elections, returns and
qualifications of the members. When there is no contest, there is
nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that
propounded by the gentleman from Ilocos Norte when I arose a
while ago. However I want to ask more questions from the delegate
from Capiz. This paragraph 6 on page 11 of the draft cites cases
contesting the election as separate from the first part of the
sections which refers to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of
contested elections are already included in the phrase "the
elections, returns and qualifications." This phrase "and contested
elections" was inserted merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral
Commission, at its own instance, refuse to confirm the elections of
the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that
unless this power is granted to the assembly, the assembly on its
own motion does not have the right to contest the election and
qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this
draft is retained as it is, even if two-thirds of the assembly believe
that a member has not the qualifications provided by law, they
cannot remove him for that reason.
Mr. LABRADOR. So that the right to remove shall only be retained by
the Electoral Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the
members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the
assembly has the right to question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must
go to the Electoral Commission and make the question before the
Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide
whether the election is contested or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the
Electoral Commission has power and authority to pass upon the
qualifications of the members of the National Assembly even
though that question has not been raised.
Mr. ROXAS. I have just said that they have no power, because they
can only judge.
In the same session, the first clause of the aforesaid draft reading
"The election, returns and qualifications of the members of the
National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates
Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and the draft as
amended, Delegate Roxas speaking for the Sponsorship Committee
said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en
obviar la objecion apuntada por varios Delegados al efecto de que la
primera clausula del draft que dice: "The elections, returns and
qualifications of the members of the National Assembly" parece que
da a la Comision Electoral la facultad de determinar tambien la
eleccion de los miembros que no ha sido protestados y para obviar
esa dificultad, creemos que la enmienda tien razon en ese sentido,
si enmendamos el draft, de tal modo que se lea como sigue: "All
cases contesting the election", de modo que los jueces de la
Comision Electoral se limitaran solamente a los casos en que haya
habido protesta contra las actas." Before the amendment of
Delegate Labrador was voted upon the following interpellation also
took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la
mayoria, y otros tres a la minoria y tres a la Corte Suprema, ¿no cree
Su Señoria que esto equivale practicamente a dejar el asunto a los
miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission
esta constituido en esa forma, tanto los miembros de la mayoria
como los de la minoria asi como los miembros de la Corte Suprema
consideraran la cuestion sobre la base de sus meritos, sabiendo que
el partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese,
podriamos hacer que tanto los de la mayoria como los de la minoria
prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el
triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and
others seeking to restore the power to decide contests relating to
the election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote of
ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought
to amend the draft by reducing the representation of the minority
party and the Supreme Court in the Electoral Commission to two
members each, so as to accord more representation to the majority
party. The Convention rejected this amendment by a vote of
seventy-six (76) against forty-six (46), thus maintaining the non-
partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as
follows:
(6) All cases contesting the elections, returns and qualifications of
the Members of the National Assembly shall be judged by an
Electoral Commission, composed of three members elected by the
party having the largest number of votes in the National Assembly,
three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court
designated by the Chief Justice, the Commission to be presided over
by one of said justices.
The Style Committee to which the draft was submitted revised it as
follows:
SEC. 4. There shall be an Electoral Commission composed of three
Justices of the Supreme Court designated by the Chief Justice, and
of six Members chosen by the National Assembly, three of whom
shall be nominated by the party having the largest number of votes,
and three by the party having the second largest number of votes
therein. The senior Justice in the Commission shall be its chairman.
The Electoral Commission shall be the sole judge of the election,
returns, and qualifications of the Members of the National
Assembly.
When the foregoing draft was submitted for approval on February 8,
1935, the Style Committee, through President Recto, to effectuate
the original intention of the Convention, agreed to insert the phrase
"All contests relating to" between the phrase "judge of" and the
words "the elections", which was accordingly accepted by the
Convention.
The transfer of the power of determining the election, returns and
qualifications of the members of the legislature long lodged in the
legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of
government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth
edition, chapter VI, pages 57, 58), gives a vivid account of the
"scandalously notorious" canvassing of votes by political parties in
the disposition of contests by the House of Commons in the
following passages which are partly quoted by the petitioner in his
printed memorandum of March 14, 1936:
153. From the time when the commons established their right to be
the exclusive judges of the elections, returns, and qualifications of
their members, until the year 1770, two modes of proceeding
prevailed, in the determination of controverted elections, and rights
of membership. One of the standing committees appointed at the
commencement of each session, was denominated the committee
of privileges and elections, whose functions was to hear and
investigate all questions of this description which might be referred
to them, and to report their proceedings, with their opinion
thereupon, to the house, from time to time. When an election
petition was referred to this committee they heard the parties and
their witnesses and other evidence, and made a report of all the
evidence, together with their opinion thereupon, in the form of
resolutions, which were considered and agreed or disagreed to by
the house. The other mode of proceeding was by a hearing at the
bar of the house itself. When this court was adopted, the case was
heard and decided by the house, in substantially the same manner
as by a committee. The committee of privileges and elections
although a select committee. The committee of privileges and
elections although a select committee was usually what is called an
open one; that is to say, in order to constitute the committee, a
quorum of the members named was required to be present, but all
the members of the house were at liberty to attend the committee
and vote if they pleased.
154. With the growth of political parties in parliament questions
relating to the right of membership gradually assumed a political
character; so that for many years previous to the year 1770,
controverted elections had been tried and determined by the house
of commons, as mere party questions, upon which the strength of
contending factions might be tested. Thus, for Example, in 1741, Sir
Robert Walpole, after repeated attacks upon his government,
resigned his office in consequence of an adverse vote upon the
Chippenham election. Mr. Hatsell remarks, of the trial of election
cases, as conducted under this system, that "Every principle of
decency and justice were notoriously and openly prostituted, from
whence the younger part of the house were insensibly, but too
successfully, induced to adopt the same licentious conduct in more
serious matters, and in questions of higher importance to the public
welfare." Mr. George Grenville, a distinguished member of the
house of commons, undertook to propose a remedy for the evil,
and, on the 7th of March, 1770, obtained the unanimous leave of
the house to bring in a bill, "to regulate the trial of controverted
elections, or returns of members to serve in parliament." In his
speech to explain his plan, on the motion for leave, Mr. Grenville
alluded to the existing practice in the following terms: "Instead of
trusting to the merits of their respective causes, the principal
dependence of both parties is their private interest among us; and it
is scandalously notorious that we are as earnestly canvassed to
attend in favor of the opposite sides, as if we were wholly self-
elective, and not bound to act by the principles of justice, but by the
discretionary impulse of our own inclinations; nay, it is well known,
that in every contested election, many members of this house, who
are ultimately to judge in a kind of judicial capacity between the
competitors, enlist themselves as parties in the contention, and take
upon themselves the partial management of the very business,
upon which they should determine with the strictest impartiality."
155. It was to put an end to the practices thus described, that Mr.
Grenville brought in a bill which met with the approbation of both
houses, and received the royal assent on the 12th of April, 1770.
This was the celebrated law since known by the name of the
Grenville Act; of which Mr. Hatsell declares, that it "was one of the
nobles works, for the honor of the house of commons, and the
security of the constitution, that was ever devised by any minister or
statesman." It is probable, that the magnitude of the evil, or the
apparent success of the remedy, may have led many of the
contemporaries of the measure to the information of a judgement,
which was not acquiesced in by some of the leading statesmen of
the day, and has not been entirely confirmed by subsequent
experience. The bill was objected to by Lord North, Mr. De Grey,
afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson,
who had been clerk of the house, and Mr. Charles James Fox, chiefly
on the ground, that the introduction of the new system was an
essential alteration of the constitution of parliament, and a total
abrogation of one of the most important rights and jurisdictions of
the house of commons.
As early as 1868, the House of Commons in England solved the
problem of insuring the non-partisan settlement of the controverted
elections of its members by abdicating its prerogative to two judges
of the King's Bench of the High Court of Justice selected from a rota
in accordance with rules of court made for the purpose. Having
proved successful, the practice has become imbedded in English
jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c.
125] as amended by Parliamentary Elections and Corrupt Practices
Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices
Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws
Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII,
p. 408, vol. XXI, p. 787). In the Dominion of Canada, election
contests which were originally heard by the Committee of the
House of Commons, are since 1922 tried in the courts. Likewise, in
the Commonwealth of Australia, election contests which were
originally determined by each house, are since 1922 tried in the
High Court. In Hungary, the organic law provides that all protests
against the election of members of the Upper House of the Diet are
to be resolved by the Supreme Administrative Court (Law 22 of
1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March
17, 1921 (art. 19) and the Constitution of the Free City of Danzig of
May 13, 1922 (art. 10) vest the authority to decide contested
elections to the Diet or National Assembly in the Supreme Court. For
the purpose of deciding legislative contests, the Constitution of the
German Reich of July 1, 1919 (art. 31), the Constitution of the
Czechoslovak Republic of February 29, 1920 (art. 19) and the
Constitution of the Grecian Republic of June 2, 1927 (art. 43), all
provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is
recruited both from the legislature and the judiciary is by no means
unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by
each of the two opposing candidates. As the Constitution made no
adequate provision for such a contingency, Congress passed a law
on January 29, 1877 (United States Statutes at Large, vol. 19, chap.
37, pp. 227-229), creating a special Electoral Commission composed
of five members elected by the Senate, five members elected by the
House of Representatives, and five justices of the Supreme Court,
the fifth justice to be selected by the four designated in the Act. The
decision of the commission was to be binding unless rejected by the
two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard,
judging from the observations of Justice Field, who was a member
of that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under
the Constitution [Albany, 1913] — Relentless Partisanship of
Electoral Commission, p. 25 et seq.), the experiment has at least
abiding historical interest.
The members of the Constitutional Convention who framed our
fundamental law were in their majority men mature in years and
experience. To be sure, many of them were familiar with the history
and political development of other countries of the world. When ,
therefore, they deemed it wise to create an Electoral Commission as
a constitutional organ and invested it with the exclusive function of
passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must
have done so not only in the light of their own experience but also
having in view the experience of other enlightened peoples of the
world. The creation of the Electoral Commission was designed to
remedy certain evils of which the framers of our Constitution were
cognizant. Notwithstanding the vigorous opposition of some
members of the Convention to its creation, the plan, as hereinabove
stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the approval of the constitutional
the creation of the Electoral Commission is the expression of the
wisdom and "ultimate justice of the people". (Abraham Lincoln, First
Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident
that the purpose was to transfer in its totality all the powers
previously exercised by the legislature in matters pertaining to
contested elections of its members, to an independent and
impartial tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional precedents, however,
as the long-felt need of determining legislative contests devoid of
partisan considerations which prompted the people, acting through
their delegates to the Convention, to provide for this body known as
the Electoral Commission. With this end in view, a composite body
in which both the majority and minority parties are equally
represented to off-set partisan influence in its deliberations was
created, and further endowed with judicial temper by including in
its membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with
the necessary authority in the performance and execution of the
limited and specific function assigned to it by the Constitution.
Although it is not a power in our tripartite scheme of government, it
is, to all intents and purposes, when acting within the limits of its
authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the
provision (section 4) creating the Electoral Commission under Article
VI entitled "Legislative Department" of our Constitution is very
indicative. Its compositions is also significant in that it is constituted
by a majority of members of the legislature. But it is a body separate
from and independent of the legislature.
The grant of power to the Electoral Commission to judge all contests
relating to the election, returns and qualifications of members of
the National Assembly, is intended to be as complete and
unimpaired as if it had remained originally in the legislature. The
express lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the National
Assembly. And this is as effective a restriction upon the legislative
power as an express prohibition in the Constitution (Ex parte Lewis,
45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S.D., 260; L.R.A., 1917B,
1). If we concede the power claimed in behalf of the National
Assembly that said body may regulate the proceedings of the
Electoral Commission and cut off the power of the commission to
lay down the period within which protests should be filed, the grant
of power to the commission would be ineffective. The Electoral
Commission in such case would be invested with the power to
determine contested cases involving the election, returns and
qualifications of the members of the National Assembly but subject
at all times to the regulative power of the National Assembly. Not
only would the purpose of the framers of our Constitution of totally
transferring this authority from the legislative body be frustrated,
but a dual authority would be created with the resultant inevitable
clash of powers from time to time. A sad spectacle would then be
presented of the Electoral Commission retaining the bare authority
of taking cognizance of cases referred to, but in reality without the
necessary means to render that authority effective whenever and
whenever the National Assembly has chosen to act, a situation
worse than that intended to be remedied by the framers of our
Constitution. The power to regulate on the part of the National
Assembly in procedural matters will inevitably lead to the ultimate
control by the Assembly of the entire proceedings of the Electoral
Commission, and, by indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should not be
permitted.
We are not insensible to the impassioned argument or the learned
counsel for the petitioner regarding the importance and necessity of
respecting the dignity and independence of the national Assembly
as a coordinate department of the government and of according
validity to its acts, to avoid what he characterized would be
practically an unlimited power of the commission in the admission
of protests against members of the National Assembly. But as we
have pointed out hereinabove, the creation of the Electoral
Commission carried with it ex necesitate rei the power regulative in
character to limit the time with which protests intrusted to its
cognizance should be filed. It is a settled rule of construction that
where a general power is conferred or duty enjoined, every
particular power necessary for the exercise of the one or the
performance of the other is also conferred (Cooley, Constitutional
Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any
further constitutional provision relating to the procedure to be
followed in filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such rules necessary
for the proper exercise of its exclusive power to judge all contests
relating to the election, returns and qualifications of members of
the National Assembly, must be deemed by necessary implication to
have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the
petitioner, the Electoral Commission may abuse its regulative
authority by admitting protests beyond any reasonable time, to the
disturbance of the tranquillity and peace of mind of the members of
the National Assembly. But the possibility of abuse is not argument
against the concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake has been
committed in the creation of an Electoral Commission and in
investing it with exclusive jurisdiction in all cases relating to the
election, returns, and qualifications of members of the National
Assembly, the remedy is political, not judicial, and must be sought
through the ordinary processes of democracy. All the possible
abuses of the government are not intended to be corrected by the
judiciary. We believe, however, that the people in creating the
Electoral Commission reposed as much confidence in this body in
the exclusive determination of the specified cases assigned to it, as
they have given to the Supreme Court in the proper cases entrusted
to it for decision. All the agencies of the government were designed
by the Constitution to achieve specific purposes, and each
constitutional organ working within its own particular sphere of
discretionary action must be deemed to be animated with the same
zeal and honesty in accomplishing the great ends for which they
were created by the sovereign will. That the actuations of these
constitutional agencies might leave much to be desired in given
instances, is inherent in the perfection of human institutions. In the
third place, from the fact that the Electoral Commission may not be
interfered with in the exercise of its legitimate power, it does not
follow that its acts, however illegal or unconstitutional, may not be
challenge in appropriate cases over which the courts may exercise
jurisdiction.
But independently of the legal and constitutional aspects of the
present case, there are considerations of equitable character that
should not be overlooked in the appreciation of the intrinsic merits
of the controversy. The Commonwealth Government was
inaugurated on November 15, 1935, on which date the Constitution,
except as to the provisions mentioned in section 6 of Article XV
thereof, went into effect. The new National Assembly convened on
November 25th of that year, and the resolution confirming the
election of the petitioner, Jose A. Angara was approved by that body
on December 3, 1935. The protest by the herein respondent Pedro
Ynsua against the election of the petitioner was filed on December 9
of the same year. The pleadings do not show when the Electoral
Commission was formally organized but it does appear that on
December 9, 1935, the Electoral Commission met for the first time
and approved a resolution fixing said date as the last day for the
filing of election protest. When, therefore, the National Assembly
passed its resolution of December 3, 1935, confirming the election
of the petitioner to the National Assembly, the Electoral
Commission had not yet met; neither does it appear that said body
had actually been organized. As a mater of fact, according to
certified copies of official records on file in the archives division of
the National Assembly attached to the record of this case upon the
petition of the petitioner, the three justices of the Supreme Court
the six members of the National Assembly constituting the Electoral
Commission were respectively designated only on December 4 and
6, 1935. If Resolution No. 8 of the National Assembly confirming
non-protested elections of members of the National Assembly had
the effect of limiting or tolling the time for the presentation of
protests, the result would be that the National Assembly — on the
hypothesis that it still retained the incidental power of regulation in
such cases — had already barred the presentation of protests
before the Electoral Commission had had time to organize itself and
deliberate on the mode and method to be followed in a matter
entrusted to its exclusive jurisdiction by the Constitution. This result
was not and could not have been contemplated, and should be
avoided.
From another angle, Resolution No. 8 of the National Assembly
confirming the election of members against whom no protests had
been filed at the time of its passage on December 3, 1935, can not
be construed as a limitation upon the time for the initiation of
election contests. While there might have been good reason for the
legislative practice of confirmation of the election of members of
the legislature at the time when the power to decide election
contests was still lodged in the legislature, confirmation alone by
the legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional power to
be "the sole judge of all contest relating to the election, returns, and
qualifications of the members of the National Assembly", to fix the
time for the filing of said election protests. Confirmation by the
National Assembly of the returns of its members against whose
election no protests have been filed is, to all legal purposes,
unnecessary. As contended by the Electoral Commission in its
resolution of January 23, 1936, overruling the motion of the herein
petitioner to dismiss the protest filed by the respondent Pedro
Ynsua, confirmation of the election of any member is not required
by the Constitution before he can discharge his duties as such
member. As a matter of fact, certification by the proper provincial
board of canvassers is sufficient to entitle a member-elect to a seat
in the national Assembly and to render him eligible to any office in
said body (No. 1, par. 1, Rules of the National Assembly, adopted
December 6, 1935).
Under the practice prevailing both in the English House of Commons
and in the Congress of the United States, confirmation is neither
necessary in order to entitle a member-elect to take his seat. The
return of the proper election officers is sufficient, and the member-
elect presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title
2, secs. 21, 25, 26). Confirmation is in order only in cases of
contested elections where the decision is adverse to the claims of
the protestant. In England, the judges' decision or report in
controverted elections is certified to the Speaker of the House of
Commons, and the House, upon being informed of such certificate
or report by the Speaker, is required to enter the same upon the
Journals, and to give such directions for confirming or altering the
return, or for the issue of a writ for a new election, or for carrying
into execution the determination as circumstances may require (31
& 32 Vict., c. 125, sec. 13). In the United States, it is believed, the
order or decision of the particular house itself is generally regarded
as sufficient, without any actual alternation or amendment of the
return (Cushing, Law and Practice of Legislative Assemblies, 9th ed.,
sec. 166).
Under the practice prevailing when the Jones Law was still in force,
each house of the Philippine Legislature fixed the time when
protests against the election of any of its members should be filed.
This was expressly authorized by section 18 of the Jones Law making
each house the sole judge of the election, return and qualifications
of its members, as well as by a law (sec. 478, Act No. 3387)
empowering each house to respectively prescribe by resolution the
time and manner of filing contest in the election of member of said
bodies. As a matter of formality, after the time fixed by its rules for
the filing of protests had already expired, each house passed a
resolution confirming or approving the returns of such members
against whose election no protests had been filed within the
prescribed time. This was interpreted as cutting off the filing of
further protests against the election of those members not
theretofore contested (Amistad vs. Claravall [Isabela], Second
Philippine Legislature, Record — First Period, p. 89; Urguello vs.
Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero
vs. Festin [Romblon], Sixth Philippine Legislature, Record — First
Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu],
Sixth Philippine Legislature, Record — First Period, pp. 1121, 1122;
Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record
— First Period, vol. III, No. 56, pp. 892, 893). The Constitution has
repealed section 18 of the Jones Law. Act No. 3387, section 478,
must be deemed to have been impliedly abrogated also, for the
reason that with the power to determine all contest relating to the
election, returns and qualifications of members of the National
Assembly, is inseparably linked the authority to prescribe
regulations for the exercise of that power. There was thus no law
nor constitutional provisions which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935,
the time for the filing of contests against the election of its
members. And what the National Assembly could not do directly, it
could not do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows
fundamentally the theory of separation of power into the legislative,
the executive and the judicial.
(b) That the system of checks and balances and the overlapping of
functions and duties often makes difficult the delimitation of the
powers granted.
(c) That in cases of conflict between the several departments and
among the agencies thereof, the judiciary, with the Supreme Court
as the final arbiter, is the only constitutional mechanism devised
finally to resolve the conflict and allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in
actual and appropriate cases and controversies, and is the power
and duty to see that no one branch or agency of the government
transcends the Constitution, which is the source of all authority.
(e) That the Electoral Commission is an independent constitutional
creation with specific powers and functions to execute and perform,
closer for purposes of classification to the legislative than to any of
the other two departments of the governments.
(f ) That the Electoral Commission is the sole judge of all contests
relating to the election, returns and qualifications of members of
the National Assembly.
(g) That under the organic law prevailing before the present
Constitution went into effect, each house of the legislature was
respectively the sole judge of the elections, returns, and
qualifications of their elective members.
(h) That the present Constitution has transferred all the powers
previously exercised by the legislature with respect to contests
relating to the elections, returns and qualifications of its members,
to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral
Commission was full, clear and complete, and carried with it ex
necesitate rei the implied power inter alia to prescribe the rules and
regulations as to the time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral Commission
was to have an independent constitutional organ pass upon all
contests relating to the election, returns and qualifications of
members of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National
Assembly were to retain the power to prescribe rules and
regulations regarding the manner of conducting said contests.
(k) That section 4 of article VI of the Constitution repealed not only
section 18 of the Jones Law making each house of the Philippine
Legislature respectively the sole judge of the elections, returns and
qualifications of its elective members, but also section 478 of Act
No. 3387 empowering each house to prescribe by resolution the
time and manner of filing contests against the election of its
members, the time and manner of notifying the adverse party, and
bond or bonds, to be required, if any, and to fix the costs and
expenses of contest.
(l) That confirmation by the National Assembly of the election is
contested or not, is not essential before such member-elect may
discharge the duties and enjoy the privileges of a member of the
National Assembly.
(m) That confirmation by the National Assembly of the election of
any member against whom no protest had been filed prior to said
confirmation, does not and cannot deprive the Electoral
Commission of its incidental power to prescribe the time within
which protests against the election of any member of the National
Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within
the legitimate exercise of its constitutional prerogative in assuming
to take cognizance of the protest filed by the respondent Pedro
Ynsua against the election of the herein petitioner Jose A. Angara,
and that the resolution of the National Assembly of December 3,
1935 can not in any manner toll the time for filing protests against
the elections, returns and qualifications of members of the National
Assembly, nor prevent the filing of a protest within such time as the
rules of the Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the character of
the Electoral Commission as a constitutional creation and as to the
scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the
Electoral Commission is an inferior tribunal, corporation, board or
person within the purview of sections 226 and 516 of the Code of
Civil Procedure.
The petition for a writ of prohibition against the Electoral
Commission is hereby denied, with costs against the petitioner. So
ordered.
Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring:
I concur in the result and in most of the views so ably expressed in
the preceding opinion. I am, however, constrained to withhold my
assent to certain conclusions therein advanced.
The power vested in the Electoral Commission by the Constitution of
judging of all contests relating to the election, returns, and
qualifications of the members of the National Assembly, is judicial in
nature. (Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On
the other hand, the power to regulate the time in which notice of a
contested election may be given, is legislative in character.
(M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs.
Illinois, 200 U. S. 496; 50 Law. ed., 572.)
It has been correctly stated that the government established by the
Constitution follows fundamentally the theory of the separation of
powers into legislative, executive, and judicial. Legislative power is
vested in the National Assembly. (Article VI, sec. 1.) In the absence
of any clear constitutional provision to the contrary, the power to
regulate the time in which notice of a contested election may be
given, must be deemed to be included in the grant of legislative
power to the National Assembly.
The Constitution of the United States contains a provision similar to
the that found in Article VI, section 4, of the Constitution of the
Philippines. Article I, section 5, of the Constitution of the United
States provides that each house of the Congress shall be the judge
of the elections, returns, and qualifications of its own members.
Notwithstanding this provision, the Congress has assumed the
power to regulate the time in which notice of a contested election
may be given. Thus section 201, Title 2, of the United States Code
Annotated prescribes:
Whenever any person intends to contest an election of any Member
of the House of Representatives of the United States, he shall,
within thirty days after the result of such election shall have been
determined by the officer or board of canvassers authorized by law
to determine the same, give notice, in writing, to the Member
whose seat he designs to contest, of his intention to contest the
same, and, in such notice, shall specify particularly the grounds
upon which he relies in the contest. (R. S., par. 105.)
The Philippine Autonomy Act, otherwise known as the Jones Law,
also contained a provision to the effect that the Senate and House
of Representatives, respectively, shall be the sole judges of the
elections, returns, and qualifications of their elective members.
Notwithstanding this provision, the Philippine Legislature passed the
Election Law, section 478 of which reads as follows:
The Senate and the House of Representatives shall by resolution
respectively prescribe the time and manner of filing contest in the
election of members of said bodies, the time and manner of
notifying the adverse party, and bond or bonds, to be required, if
any, and shall fix the costs and expenses of contest which may be
paid from their respective funds.
The purpose sought to be attained by the creation of the Electoral
Commission was not to erect a body that would be above the law,
but to raise legislative elections contests from the category of
political to that of justiciable questions. The purpose was not to
place the commission beyond the reach of the law, but to insure the
determination of such contests with the due process of law.
Section 478 of the Election Law was in force at the time of the
adoption of the Constitution, Article XV, section 2, of which provides
that —
All laws of the Philippine Islands shall continue in force until the
inauguration of the Commonwealth of the Philippines; thereafter,
such laws shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the
National Assembly, and all references in such laws to the
Government or officials of the Philippine Islands shall be construed,
in so far as applicable, to refer to the Government and
corresponding officials under this Constitution.
the time and manner of filing contests in the elections of members
of the Philippine Legislature was by statute lodged separately in the
bodies clothed with power to decide such contests. Construing
section 478 of the Election Law to refer to the National Assembly, as
required by Article XV, section 2, of the Constitution, it seems
reasonable to conclude that the authority to prescribe the time and
manner of filing contests in the election of members of the National
Assembly is vested in the Electoral Commission, which is now the
body clothed with power to decide such contests.
In the light of what has been said, the resolution of the National
Assembly of December 3, 1935, could not have the effect of barring
the right of the respondent Pedro Ynsua to contest the election of
the petitioner. By the same token, the Electoral Commission was
authorized by law to adopt its resolution of December 9, 1935,
which fixed the time with in which written contests must be filed
with the commission.
Having been filed within the time fixed by its resolutions, the
Electoral Commission has jurisdiction to hear and determine the
contest filed by the respondent Pedro Ynsua against the petitioner
Jose A. Angara.

The manifest purpose of this constitutional provision was to insure

the orderly processes of government, and to prevent any hiatus in
its operations after the inauguration of the Commonwealth of the
Philippines. It was thus provided that all laws of the Philippine
Islands shall remain operative even after the inauguration of the
Commonwealth of the Philippines, unless inconsistent with the
Constitution, and that all references in such laws to the government
or officials of the Philippine Islands shall be construed, in so far as
applicable, to refer to the government and corresponding officials
under the Constitution. It would seem to be consistent not only with
the spirit but the letter of the Constitution to hold that section 478
of the Election Law remains operative and should now be construed
to refer to the Electoral Commission, which, in so far as the power
to judge election contests is concerned, corresponds to either the
Senate or the House of Representative under the former regime. It
is important to observe in this connection that said section 478 of
the Election Law vested the power to regulate the time and manner
in which notice of a contested election may be given, not in the
Philippine Legislature but in the Senate and House of
Representatives singly. In other words, the authority to prescribe
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA,
petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO
DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively,
respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance.
While ostensibly only legal issues are involved, the Court's decision
in this case would undeniably have a profound effect on the
political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed
from the presidency via the non-violent "people power" revolution
and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her
ascension to and consilidation of power have not been
unchallenged. The failed Manila Hotel coup in 1986 led by political
leaders of Mr. Marcos, the takeover of television station Channel 7
by rebel troops led by Col. Canlas with the support of "Marcos
loyalists" and the unseccessful plot of the Marcos spouses to
surreptitiously return from Hawii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin,
January 30, 1987] awakened the nation to the capacity of the
Marcoses to stir trouble even from afar and to the fanaticism and
blind loyalty of their followers in the country. The ratification of the
1987 Constitution enshrined the victory of "people power" and also
clearly reinforced the constitutional moorings of Mrs. Aquino's
presidency. This did not, however, stop bloody challenges to the
government. On August 28, 1987, Col. Gregorio Honasan, one of the
major players in the February Revolution, led a failed coup that left
scores of people, both combatants and civilians, dead. There were
several other armed sorties of lesser significance, but the message
they conveyed was the same — a split in the ranks of the military
establishment that thraetened civilian supremacy over military and
brought to the fore the realization that civilian government could be
at the mercy of a fractious military.
But the armed threats to the Government were not only found in
misguided elements and among rabid followers of Mr. Marcos.
There are also the communist insurgency and the seccessionist
movement in Mindanao which gained ground during the rule of Mr.
Marcos, to the extent that the communists have set up a parallel
government of their own on the areas they effectively control while
the separatist are virtually free to move about in armed bands.
There has been no let up on this groups' determination to wrest
power from the govermnent. Not only through resort to arms but
also to through the use of propaganda have they been successful in
dreating chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated
foreign debt and the plunder of the nation attributed to Mr. Marcos
and his cronies left the economy devastated. The efforts at
economic recovery, three years after Mrs. Aquino assumed office,
have yet to show concrete results in alleviating the poverty of the
masses, while the recovery of the ill-gotten wealth of the Marcoses
has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to
the Philipppines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the stability
of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood
firmly on the decision to bar the return of Mr. Marcos and his
family.
The Petition
This case is unique. It should not create a precedent, for the case of
a dictator forced out of office and into exile after causing twenty
years of political, economic and social havoc in the country and who
within the short space of three years seeks to return, is in a class by
itself.
This petition for mandamus and prohibition asks the Courts to order
the respondents to issue travel documents to Mr. Marcos and the
immediate members of his family and to enjoin the implementation
of the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of
the powers granted by the Constitution, the President may prohibit
the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would
depend on the resolution of the following issues:
1. Does the President have the power to bar the return of
former President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former
President Marcos and his family from returning to the Philippines, in
the interest of "national security, public safety or public health
a. Has the President made a finding that the return of former
President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with
in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with,
has the President's decision, including the grounds upon which it
was based, been made known to petitioners so that they may
controvert the same?
c. Is the President's determination that the return of former
President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety, or public health a
political question?
d. Assuming that the Court may inquire as to whether the
return of former President Marcos and his family is a clear and
present danger to national security, public safety, or public health,
have respondents established such fact?
3. Have the respondents, therefore, in implementing the
President's decision to bar the return of former President Marcos
and his family, acted and would be acting without jurisdiction, or in
excess of jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the return of former
President Marcos and his family to the Philippines? [Memorandum
for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of
the Marcoses to return to the Philippines is guaranteed under the
following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health, as may be provided by law.
The petitioners contend that the President is without power to
impair the liberty of abode of the Marcoses because only a court
may do so "within the limits prescribed by law." Nor may the
President impair their right to travel because no law has authorized
her to do so. They advance the view that before the right to travel
may be impaired by any authority or agency of the government,
there must be legislation to that effect.
The petitioners further assert that under international law, the right
of Mr. Marcos and his family to return to the Philippines is
guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and
residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own,
and to return to his country.
Likewise, the International Covenant on Civil and Political Rights,
which had been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and
freedom to choose his residence.
2) Everyone shall be free to leave any country, including his
own.
3) The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are necessary
to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his
own country.
On the other hand, the respondents' principal argument is that the
issue in this case involves a political question which is non-
justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or
not petitioners Ferdinand E. Marcos and his family have the right to
travel and liberty of abode. Petitioners invoke these constitutional
rights in vacuo without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is
whether or not petitioners Ferdinand E. Marcos and family have the
right to return to the Philippines and reside here at this time in the
face of the determination by the President that such return and
residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question
is not a political question as it involves merely a determination of
what the law provides on the matter and application thereof to
petitioners Ferdinand E. Marcos and family. But when the question
is whether the two rights claimed by petitioners Ferdinand E.
Marcos and family impinge on or collide with the more primordial
and transcendental right of the State to security and safety of its
nationals, the question becomes political and this Honorable Court
can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to
return to the Philippines and reestablish their residence here? This
is clearly a justiciable question which this Honorable Court can
decide.
Do petitioners Ferdinand E. Marcos and family have their right to
return to the Philippines and reestablish their residence here even if
their return and residence here will endanger national security and
public safety? this is still a justiciable question which this Honorable
Court can decide.
Is there danger to national security and public safety if petitioners
Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which
this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to
national security over individual rights. In support thereof, they cite
Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and
protect the people. The Government may call upon the people to
defend the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal,
military, or civil service.
Section 5. The maintenance of peace and order, the
protection of life, liberty, and property, and the promotion of the
general welfare are essential for the enjoyment by all the people of
the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and
family from returning to the Philippines for reasons of national
security and public safety has international precedents. Rafael
Trujillo of the Dominican Republic, Anastacio Somoza Jr. of
Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba,
King Farouk of Egypt, Maximiliano Hernandez Martinez of El
Salvador, and Marcos Perez Jimenez of Venezuela were among the
deposed dictators whose return to their homelands was prevented
by their governments. [See Statement of Foreign Affairs Secretary
Raul S. Manglapus, quoted in Memorandum for Respondents, pp.
26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the
scope of presidential power and its limits. We, however, view this
issue in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines
in arriving at a solution to the controversy.
At the outset, we must state that it would not do to view the case
within the confines of the right to travel and the import of the
decisions of the U.S. Supreme Court in the leading cases of Kent v.
Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee
[453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the
right to travel and recognized exceptions to the exercise thereof,
respectively.
It must be emphasized that the individual right involved is not the
right to travel from the Philippines to other countries or within the
Philippines. These are what the right to travel would normally
connote. Essentially, the right involved is the right to return to one's
country, a totally distinct right under international law, independent
from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of movement and
abode within the territory of a state, the right to leave a country,
and the right to enter one's country as separate and distinct rights.
The Declaration speaks of the "right to freedom of movement and
residence within the borders of each state" [Art. 13(l)] separately
from the "right to leave any country, including his own, and to
return to his country." [Art. 13(2).] On the other hand, the Covenant
guarantees the "right to liberty of movement and freedom to
choose his residence" [Art. 12(l)] and the right to "be free to leave
any country, including his own." [Art. 12(2)] which rights may be
restricted by such laws as "are necessary to protect national
security, public order, public health or morals or enter qqqs own
country" of which one cannot be "arbitrarily deprived." [Art. 12(4).]
It would therefore be inappropriate to construe the limitations to
the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights
specifically guaranteed in the Bill of Rights, which treats only of the
liberty of abode and the right to travel, but it is our well-considered
view that the right to return may be considered, as a generally
accepted principle of international law and, under our Constitution,
is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of
Civil and Political Rights, i.e., against being "arbitrarily deprived"
thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the
issuance of passports for the purpose of effectively exercising the
right to travel are not determinative of this case and are only
tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue
before the Court is novel and without precedent in Philippine, and
even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of
whether or not there can be limitations on the right to travel in the
absence of legislation to that effect is rendered unnecessary. An
appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need
to explain the methodology for its resolution. Our resolution of the
issue will involve a two-tiered approach. We shall first resolve
whether or not the President has the power under the Constitution,
to bar the Marcoses from returning to the Philippines. Then, we
shall determine, pursuant to the express power of the Court under
the Constitution in Article VIII, Section 1, whether or not the
President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious
threat to national interest and welfare and decided to bar their
return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of
the three great branches of government. To recall the words of
Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], "the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government." [At 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power
shall be vested in the Congress of the Philippines" Art VI, Sec. 11,
"[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested
in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v.
Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in
the Constitution. For as the Supreme Court in Ocampo v. Cabangis
[15 Phil. 626 (1910)] pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial
power means a grant of all the judicial power which may be
exercised under the government." [At 631-632.1 If this can be said
of the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of
the judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one official
the President.
As stated above, the Constitution provides that "[t]he executive
power shall be vested in the President of the Philippines." [Art. VII,
Sec. 1]. However, it does not define what is meant by executive
power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all
executive departments, bureaus and offices, the power to execute
the laws, the appointing power, the powers under the commander-
in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of
Congress, the power to contract or guarantee foreign loans, the
power to enter into treaties or international agreements, the power
to submit the budget to Congress, and the power to address
Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers
of the President did the framers of the Constitution intend that the
President shall exercise those specific powers and no other? Are
these se enumerated powers the breadth and scope of "executive
power"? Petitioners advance the view that the President's powers
are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her.
Inclusion unius est exclusio alterius[Memorandum for Petitioners, p.
4- Rollo p. 233.1 This argument brings to mind the institution of the
U.S. Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United
States grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To
those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those
who think that constitution makers ought to leave considerable
leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article 11 in its opening words:
"The executive power shall be vested in a President of the United
States of America." . . .. [The President: Office and Powers,
17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by
the different persons who held the office from Washington to the
early 1900's, and the swing from the presidency by commission to
Lincoln's dictatorship, he concluded that "what the presidency is at
any particular moment depends in important measure on who is
President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial
Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying
demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos
according to the man in charge. Each President's distinctive
temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the
WhiteHouse and pervaded the entire government. The executive
branch, said Clark Clifford, was a chameleon, taking its color from
the character and personality of the President. The thrust of the
office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President
understood it as his personal obligation to inform and involve the
Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined
whether he strengthened or weakened the constitutional order. [At
212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or
what she does but, rather, that the consideration of tradition and
the development of presidential power under the different
constitutions are essential for a complete understanding of the
extent of and limitations to the President's powers under the 1987
Constitution. The 1935 Constitution created a strong President with
explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into
the parliamentary type, with the President as a mere figurehead,
but through numerous amendments, the President became even
more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of
legislative, executive and judicial powers by their actual distribution
among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power"
is the power to enforce the laws, for the President is head of state
as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's
foreign relations.
On these premises, we hold the view that although the 1987
Constitution imposes limitations on the exercise of specific powers
of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the
government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v. Government
of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who
between the Governor-General of the Philippines and the
Legislature may vote the shares of stock held by the Government to
elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upholding the power of
the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of
the "board" and "committee" respectively, are not charged with the
performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act
in the Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The fact
that they do not fall within the authority of either of these two
constitutes logical ground for concluding that they do fall within that
of the remaining one among which the powers of government are
divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his
enduring words of dissent we find reinforcement for the view that it
would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the
Constitution:
The great ordinances of the Constitution do not establish and divide
fields of black and white. Even the more specific of them are found
to terminate in a penumbra shading gradually from one extreme to
the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may
disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with
mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At 210-
211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he
prime duty of theGovernment is to serve and protect the people"
and that "[t]he maintenance of peace and order,the protection of
life, liberty, and property, and the promotion of the general welfare
are essential for the enjoyment by all the people of the blessings of
democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance
of peace and order, the protection of life, liberty and property, and
the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty
words. Thus, in the exercise of presidential functions, in drawing a
plan of government, and in directing implementing action for these
plans, or from another point of view, in making any decision as
President of the Republic, the President has to consider these
principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow
the Marcoses to return to the Philippines, the President is, under
the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the
Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social
contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers
of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the
Constitution reminds everyone that "[s]overeignty resides in the
people and all government authority emanates from them." [Art. II,
Sec. 1.]
The resolution of the problem is made difficult because the persons
who seek to return to the country are the deposed dictator and his
family at whose door the travails of the country are laid and from
whom billions of dollars believed to be ill-gotten wealth are sought
to be recovered. The constitutional guarantees they invoke are
neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and ofexpression, although couched
in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general
welfare and the common good against the exercise of rights of
certain individuals. The power involved is the President's residual
power to protect the general welfare of the people. It is founded on
the duty of the President, as steward of the people. To paraphrase
Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or the
laws that the needs of the nation demand [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and
defend the Constitution. It also may be viewed as a power implicit in
the President's duty to take care that the laws are faithfully
executed [see Hyman, The American President, where the author
advances the view that an allowance of discretionary power is
unavoidable in any government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's
powers as protector of the peace. Rossiter The American
Presidency].The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon. Wide discretion, within the bounds of
law, in fulfilling presidential duties in times of peace is not in any
way diminished by the relative want of an emergency specified in
the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot
be said to exclude the President's exercising as Commander-in-
Chief powers short of the calling of the armed forces, or suspending
the privilege of the writ of habeas corpus or declaring martial law, in
order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the
Marcose's from returning has been recognized by memembers of
the Legislature, and is manifested by the Resolution proposed in the
House of Representatives and signed by 103 of its members urging
the President to allow Mr. Marcos to return to the Philippines "as a
genuine unselfish gesture for true national reconciliation and as
irrevocable proof of our collective adherence to uncompromising
respect for human rights under the Constitution and our laws."
[House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning
to the Philippines, rather, it appeals to the President's sense of
compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the
Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions
guaranteeing liberty of abode and the right to travel, subject to
certain exceptions, or of case law which clearly never contemplated
situations even remotely similar to the present one. It must be
treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context, such request
or demand should submit to the exercise of a broader discretion on
the part of the President to determine whether it must be granted
or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty 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." [Art. VIII, Sec. 1]
Given this wording, we cannot agree with the Solicitor General that
the issue constitutes a political question which is beyond the
jurisdiction of the Court to decide.
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. But nonetheless there remain
issues beyond the Court's jurisdiction the determination of which is
exclusively for the President, for Congress or for the people
themselves through a plebiscite or referendum. We cannot, for
example, question the President's recognition of a foreign
government, no matter how premature or improvident such action
may appear. We cannot set aside a presidential pardon though it
may appear to us that the beneficiary is totally undeserving of the
grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved
to the people.

There is nothing in the case before us that precludes our
determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners
show that the framers intended to widen the scope of judicial
review but they did not intend courts of justice to settle all actual
controversies before them. 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. In this light, it would appear clear that the second paragraph
of Article VIII, Section 1 of the Constitution, defining "judicial
power," which specifically empowers the courts to determine
whether or not there has been a grave abuse of discretion on the
part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia
[G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the
power to suspend the privilege of the writ of habeas corpus under
specified conditions. Pursuant to the principle of separation of
powers underlying our system of government, the Executive is
supreme within his own sphere. However, the separation of powers,
under the Constitution, is not absolute. What is more, it goes hand
in hand with the system of checks and balances, under which the
Executive is supreme, as regards the suspension of the privilege, but
only if and when he acts within the sphere alloted to him by the
Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this respect, is,
in turn, constitutionally supreme. In the exercise of such authority,
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 [At 479-480.]
Accordingly, the question for the Court to determine is whether or
not there exist factual bases for the President to conclude that it
was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has
acted, or acts, arbitrarily or that she has gravely abused her
discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral
arguments, and the facts revealed during the briefing in chambers
by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents
were represented, there exist factual bases for the President's
decision..
The Court cannot close its eyes to present realities and pretend that
the country is not besieged from within by a well-organized
communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with
impunity of military men, police officers and civilian officials, to
mention only a few. The documented history of the efforts of the
Marcose's and their followers to destabilize the country, as earlier
narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be
contained. The military establishment has given assurances that it
could handle the threats posed by particular groups. But it is the
catalytic effect of the return of the Marcoses that may prove to be
the proverbial final straw that would break the camel's back. With
these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the
return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the
Philippines will cause the escalation of violence against the State,
that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the
Government, is not precluded from taking pre- emptive action
against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The preservation
of the State the fruition of the people's sovereignty is an obligation
in the highest order. The President, sworn to preserve and defend
the Constitution and to see the faithful execution the laws, cannot
shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now
beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the
Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which stifles
and stagnates development and is one of the root causes of
widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is
easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the
return of the Marcoses would wipe away the gains achieved during
the past few years and lead to total economic collapse. Given what
is within our individual and common knowledge of the state of the
economy, we cannot argue with that determination.
WHEREFORE, and it being our well-considered opinion that the
President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his
family at the present time and under present circumstances poses a
serious threat to national interest and welfare and in prohibiting
their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.
EN BANC
G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with
prayer for issuance of a temporary restraining order seeking to
nullify on constitutional grounds the order of President Joseph
Ejercito Estrada commanding the deployment of the Philippine
Marines (the "Marines") to join the Philippine National Police (the
"PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila,
like robberies, kidnappings and carnappings, the President, in a
verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff of
the Armed Forces of the Philippines (the "AFP"), the Chief of the
PNP and the Secretary of the Interior and Local Government were
tasked to execute and implement the said order. In compliance with
the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction
02/20001 (the "LOI") which detailed the manner by which the joint
visibility patrols, called Task Force Tulungan, would be conducted.2
Task Force Tulungan was placed under the leadership of the Police
Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the
deployment of the Marines in a Memorandum, dated 24 January
2000, addressed to the Chief of Staff of the AFP and the PNP Chief.3
In the Memorandum, the President expressed his desire to improve
the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police
patrols.4 The President further stated that to heighten police
visibility in the metropolis, augmentation from the AFP is
necessary.5 Invoking his powers as Commander-in-Chief under
Section 18, Article VII of the Constitution, the President directed the
AFP Chief of Staff and PNP Chief to coordinate with each other for
the proper deployment and utilization of the Marines to assist the
PNP in preventing or suppressing criminal or lawless violence.6
Finally, the President declared that the services of the Marines in
the anti-crime campaign are merely temporary in nature and for a
reasonable period only, until such time when the situation shall
have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint
visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP
NCRPO and the Philippine Marines partnership in the conduct of
visibility patrols in Metro Manila for the suppression of crime
prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only
by ordinary criminals but also by organized syndicates whose
members include active and former police/military personnel whose
training, skill, discipline and firepower prove well-above the present
capability of the local police alone to handle. The deployment of a
joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military
personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct
joint NCRPO-PM visibility patrols to keep Metro Manila streets
crime-free, through a sustained street patrolling to minimize or
eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include
those that are well-trained, disciplined and well-armed active or
former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO
[National Capital Regional Police Office] and the Philippine Marines
to curb criminality in Metro Manila and to preserve the internal
security of the state against insurgents and other serious threat to
national security, although the primary responsibility over Internal
Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate
all forms of high-profile crimes perpetrated by organized crime
syndicates operating in Metro Manila. This concept requires the
military and police to work cohesively and unify efforts to ensure a
focused, effective and holistic approach in addressing crime
prevention. Along this line, the role of the military and police aside
from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-
Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a
provisional Task Force "TULUNGAN" shall be organized to provide
the mechanism, structure, and procedures for the integrated
planning, coordinating, monitoring and assessing the security
situation.
xxx.8
The selected areas of deployment under the LOI are: Monumento
Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills,
SM Megamall, Makati Commercial Center, LRT/MRT Stations and
the NAIA and Domestic Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP")
filed the instant petition to annul LOI 02/2000 and to declare the
deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA
IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS
WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF
SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY
ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers tasked
with the bounden duty to uphold the rule of law and the
Constitution, the IBP questions the validity of the deployment and
utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a
Resolution,11 dated 25 January 2000, required the Solicitor General
to file his Comment on the petition. On 8 February 2000, the
Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the
act of the President in deploying the Marines, contending, among
others, that petitioner has no legal standing; that the question of
deployment of the Marines is not proper for judicial scrutiny since
the same involves a political question; that the organization and
conduct of police visibility patrols, which feature the team-up of one
police officer and one Philippine Marine soldier, does not violate the
civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not
petitioner has legal standing; (2) Whether or not the President’s
factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of the
armed forces to assist the PNP in joint visibility patrols violates the
constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of
the requisites of standing to raise the issues in the petition. Second,
the President did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction nor did he commit a violation of the
civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of
the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court
can exercise its power of judicial review only if the following
requisites are complied with, namely: (1) the existence of an actual
and appropriate case; (2) a personal and substantial interest of the
party raising the constitutional question; (3) the exercise of judicial
review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of standing
in this case.
"Legal standing" or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or
will sustain direct injury as a result of the governmental act that is
being challenged.13 The term "interest" means a material interest,
an interest in issue affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental
interest.14 The gist of the question of standing is whether a party
alleges "such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult
constitutional questions."15
In the case at bar, the IBP primarily anchors its standing on its
alleged responsibility to uphold the rule of law and the Constitution.
Apart from this declaration, however, the IBP asserts no other basis
in support of its locus standi. The mere invocation by the IBP of its
duty to preserve the rule of law and nothing more, while
undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups
and the whole citizenry. Based on the standards above-stated, the
IBP has failed to present a specific and substantial interest in the
resolution of the case. Its fundamental purpose which, under
Section 2, Rule 139-A of the Rules of Court, is to elevate the
standards of the law profession and to improve the administration
of justice is alien to, and cannot be affected by the deployment of
the Marines. It should also be noted that the interest of the National
President of the IBP who signed the petition, is his alone, absent a
formal board resolution authorizing him to file the present action.
To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming
that it has duly authorized the National President to file the petition,
has not shown any specific injury which it has suffered or may suffer
by virtue of the questioned governmental act. Indeed, none of its
members, whom the IBP purportedly represents, has sustained any
form of injury as a result of the operation of the joint visibility
patrols. Neither is it alleged that any of its members has been
arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the
supposed "militarization" of law enforcement which might threaten
Philippine democratic institutions and may cause more harm than
good in the long run. Not only is the presumed "injury" not personal
in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing. Since petitioner
has not successfully established a direct and personal injury as a
consequence of the questioned act, it does not possess the
personality to assail the validity of the deployment of the Marines.
This Court, however, does not categorically rule that the IBP has
absolutely no standing to raise constitutional issues now or in the
future. The IBP must, by way of allegations and proof, satisfy this
Court that it has sufficient stake to obtain judicial resolution of the
controversy.
Having stated the foregoing, it must be emphasized that this Court
has the discretion to take cognizance of a suit which does not satisfy
the requirement of legal standing when paramount interest is
involved.16 In not a few cases, the Court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is
able to craft an issue of transcendental significance to the people.17
Thus, when the issues raised are of paramount importance to the
public, the Court may brush aside technicalities of procedure.18 In
this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents.
Moreover, because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not go away.
It will stare us in the face again. It, therefore, behooves the Court to
relax the rules on standing and to resolve the issue now, rather than
later.
The President did not commit grave abuse of discretion in calling
out the Marines.
In the case at bar, the bone of contention concerns the factual
determination of the President of the necessity of calling the armed
forces, particularly the Marines, to aid the PNP in visibility patrols. In
this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the
President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under
the aforestated provision. According to the IBP, no emergency exists
that would justify the need for the calling of the military to assist the
police force. It contends that no lawless violence, invasion or
rebellion exist to warrant the calling of the Marines. Thus, the IBP
prays that this Court "review the sufficiency of the factual basis for
said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the issue
pertaining to the necessity of calling the armed forces is not proper
for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of
this Court.
As framed by the parties, the underlying issues are the scope of
presidential powers and limits, and the extent of judicial review.
But, while this Court gives considerable weight to the parties’
formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines
of the issues raised. Thus, while the parties are in agreement that
the power exercised by the President is the power to call out the
armed forces, the Court is of the view that the power involved may
be no more than the maintenance of peace and order and
promotion of the general welfare.20 For one, the realities on the
ground do not show that there exist a state of warfare, widespread
civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of
this decision. In the words of the late Justice Irene Cortes in Marcos
v. Manglapus:
More particularly, this case calls for the exercise of the President’s
powers as protector of the peace. [Rossiter, The American
Presidency]. The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon. Wide discretion, within the bounds of
law, in fulfilling presidential duties in times of peace is not in any
way diminished by the relative want of an emergency specified in
the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot
be said to exclude the President’s exercising as Commander-in-Chief
powers short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial law, in
order to keep the peace, and maintain public order and security.
xxx21
Nonetheless, even if it is conceded that the power involved is the
President’s power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion, the resolution of
the controversy will reach a similar result.
We now address the Solicitor General’s argument that the issue
involved is not susceptible to review by the judiciary because it
involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a
matter which is appropriate for court review.22 It pertains to issues
which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically
assume jurisdiction over actual constitutional cases brought before
it even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are "political questions." The
reason is that political questions are concerned with issues
dependent upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question being a
function of the separation of powers, the courts will not normally
interfere with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold the law
and the Constitution.
As Tañada v. Cuenco23 puts it, political questions refer "to those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of government." Thus, if an issue is clearly
identified by the text of the Constitution as matters for discretionary
action by a particular branch of government or to the people
themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr,24 "[p]rominent on
the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a
coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the
potentiality of embarassment from multifarious pronouncements by
various departments on the one question."
The 1987 Constitution expands the concept of judicial review by
providing that "(T)he Judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law. Judicial
power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government."25
Under this definition, the Court cannot agree with the Solicitor
General that the issue involved is a political question beyond the
jurisdiction of this Court to review. When the grant of power is
qualified, conditional or subject to limitations, the issue of whether
the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of
legality or validity, not its wisdom.26 Moreover, the jurisdiction to
delimit constitutional boundaries has been given to this Court.27
When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
the official whose action is being questioned.28
By grave abuse of discretion is meant simply capricious or whimsical
exercise of judgment that is patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where
the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.29 Under this definition, a court is
without power to directly decide matters over which full
discretionary authority has been delegated. But while this Court has
no power to substitute its judgment for that of Congress or of the
President, it may look into the question of whether such exercise
has been made in grave abuse of discretion.30 A showing that
plenary power is granted either department of government, may
not be an obstacle to judicial inquiry, for the improvident exercise or
abuse thereof may give rise to justiciable controversy.31
When the President calls the armed forces to prevent or suppress
lawless violence, invasion or rebellion, he necessarily exercises a
discretionary power solely vested in his wisdom. This is clear from
the intent of the framers and from the text of the Constitution itself.
The Court, thus, cannot be called upon to overrule the President’s
wisdom or substitute its own. However, this does not prevent an
examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power
to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the President’s decision
is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the
assertion that there exist no justification for calling out the armed
forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was
exercised in such a manner as to violate the constitutional provision
on civilian supremacy over the military. In the performance of this
Court’s duty of "purposeful hesitation"32 before declaring an act of
another branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the
President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to
bestow on the President full discretionary power to call out the
armed forces and to determine the necessity for the exercise of
such power. Section 18, Article VII of the Constitution, which
embodies the powers of the President as Commander-in-Chief,
provides in part:
The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus, or place
the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the
factual basis for the exercise of the calling out power is also implied
and further reinforced in the rest of Section 18, Article VII which
reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such
proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the
President’s action to call out the armed forces. The distinction
places the calling out power in a different category from the power
to declare martial law and the power to suspend the privilege of the
writ of habeas corpus, otherwise, the framers of the Constitution
would have simply lumped together the three powers and provided
for their revocation and review without any qualification. Expressio
unius est exclusio alterius. Where the terms are expressly limited to
certain matters, it may not, by interpretation or construction, be
extended to other matters.33 That the intent of the Constitution is
exactly what its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation of the
Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he
can call out such Armed Forces as may be necessary to suppress
lawless violence; then he can suspend the privilege of the writ of
habeas corpus, then he can impose martial law. This is a graduated
sequence.
When he judges that it is necessary to impose martial law or
suspend the privilege of the writ of habeas corpus, his judgment is
subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National
Assembly. But when he exercises this lesser power of calling on the
Armed Forces, when he says it is necessary, it is my opinion that his
judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent
danger, the matter can be handled by the first sentence: "The
President may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion." So we feel that that is
sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is
imminent danger, the matter can be handled by the First Sentence:
"The President....may call out such Armed Forces to prevent or
suppress lawless violence, invasion or rebellion." So we feel that
that is sufficient for handling imminent danger, of invasion or
rebellion, instead of imposing martial law or suspending the writ of
habeas corpus, he must necessarily have to call the Armed Forces of
the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the
legislature nor is it subject to judicial review.34
The reason for the difference in the treatment of the
aforementioned powers highlights the intent to grant the President
the widest leeway and broadest discretion in using the power to call
out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of
habeas corpus and the power to impose martial law, both of which
involve the curtailment and suppression of certain basic civil rights
and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the
exercise of the power to suspend the privilege of the writ of habeas
corpus or to impose martial law, two conditions must concur: (1)
there must be an actual invasion or rebellion and, (2) public safety
must require it. These conditions are not required in the case of the
power to call out the armed forces. The only criterion is that
"whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or
rebellion." The implication is that the President is given full
discretion and wide latitude in the exercise of the power to call as
compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that
the President acted without factual basis, then this Court cannot
undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might
also prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President
might decide that there is a need to call out the armed forces may
be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state.
In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision
to call out the military to prevent or suppress lawless violence must
be done swiftly and decisively if it were to have any effect at all.
Such a scenario is not farfetched when we consider the present
situation in Mindanao, where the insurgency problem could spill
over the other parts of the country. The determination of the
necessity for the calling out power if subjected to unfettered judicial
scrutiny could be a veritable prescription for disaster, as such power
may be unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the
President, as Commander-in-Chief of the Armed Forces, full
discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the President’s
exercise of judgment deserves to be accorded respect from this
Court.
The President has already determined the necessity and factual
basis for calling the armed forces. In his Memorandum, he
categorically asserted that, "[V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur
in Metro Manila..."35 We do not doubt the veracity of the
President’s assessment of the situation, especially in the light of
present developments. The Court takes judicial notice of the recent
bombings perpetrated by lawless elements in the shopping malls,
public utilities, and other public places. These are among the areas
of deployment described in the LOI 2000. Considering all these facts,
we hold that the President has sufficient factual basis to call for
military aid in law enforcement and in the exercise of this
constitutional power.
The deployment of the Marines does not violate the civilian
supremacy clause nor does it infringe the civilian character of the
police force.
Prescinding from its argument that no emergency situation exists to
justify the calling of the Marines, the IBP asserts that by the
deployment of the Marines, the civilian task of law enforcement is
"militarized" in violation of Section 3, Article II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a
breach of the civilian supremacy clause. The calling of the Marines in
this case constitutes permissible use of military assets for civilian
law enforcement. The participation of the Marines in the conduct of
joint visibility patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of the LOI
itself, which sufficiently provides the metes and bounds of the
Marines’ authority. It is noteworthy that the local police forces are
the ones in charge of the visibility patrols at all times, the real
authority belonging to the PNP. In fact, the Metro Manila Police
Chief is the overall leader of the PNP-Philippine Marines joint
visibility patrols.37 Under the LOI, the police forces are tasked to
brief or orient the soldiers on police patrol procedures.38 It is their
responsibility to direct and manage the deployment of the
Marines.39 It is, likewise, their duty to provide the necessary
equipment to the Marines and render logistical support to these
soldiers.40 In view of the foregoing, it cannot be properly argued
that military authority is supreme over civilian authority. Moreover,
the deployment of the Marines to assist the PNP does not unmake
the civilian character of the police force. Neither does it amount to
an "insidious incursion" of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the
Constitution.41
In this regard, it is not correct to say that General Angelo Reyes,
Chief of Staff of the AFP, by his alleged involvement in civilian law
enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian
institution, the PNP, and not with the military. Such being the case,
it does not matter whether the AFP Chief actually participates in the
Task Force Tulungan since he does not exercise any authority or
control over the same. Since none of the Marines was incorporated
or enlisted as members of the PNP, there can be no appointment to
civilian position to speak of. Hence, the deployment of the Marines
in the joint visibility patrols does not destroy the civilian character of
the PNP.
Considering the above circumstances, the Marines render nothing
more than assistance required in conducting the patrols. As such,
there can be no "insidious incursion" of the military in civilian affairs
nor can there be a violation of the civilian supremacy clause in the
Constitution.
It is worth mentioning that military assistance to civilian authorities
in various forms persists in Philippine jurisdiction. The Philippine
experience reveals that it is not averse to requesting the assistance
of the military in the implementation and execution of certain
traditionally "civil" functions. As correctly pointed out by the
Solicitor General, some of the multifarious activities wherein
military aid has been rendered, exemplifying the activities that bring
both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red Cross;43
3. Relief and rescue operations during calamities and disasters;44
4. Amateur sports promotion and development;45
5. Development of the culture and the arts;46
6. Conservation of natural resources;47
7. Implementation of the agrarian reform program;48
8. Enforcement of customs laws;49
9. Composite civilian-military law enforcement activities;50
10. Conduct of licensure examinations;51
11. Conduct of nationwide tests for elementary and high school
students;52
12. Anti-drug enforcement activities;53
13. Sanitary inspections;54
14. Conduct of census work;55
15. Administration of the Civil Aeronautics Board;56
16. Assistance in installation of weather forecasting devices;57
17. Peace and order policy formulation in local government units.58
This unquestionably constitutes a gloss on executive power resulting
from a systematic, unbroken, executive practice, long pursued to
the knowledge of Congress and, yet, never before questioned.59
What we have here is mutual support and cooperation between the
military and civilian authorities, not derogation of civilian
supremacy.
In the United States, where a long tradition of suspicion and hostility
towards the use of military force for domestic purposes has
persisted,60 and whose Constitution, unlike ours, does not expressly
provide for the power to call, the use of military personnel by
civilian law enforcement officers is allowed under circumstances
similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act61 of the US, the
use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of
the Act states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses any
part of the Army or the Air Force as posse comitatus or otherwise to
execute the laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both.62
To determine whether there is a violation of the Posse Comitatus
Act in the use of military personnel, the US courts63 apply the
following standards, to wit:
Were Army or Air Force personnel used by the civilian law
enforcement officers at Wounded Knee in such a manner that the
military personnel subjected the citizens to the exercise of military
power which was regulatory, proscriptive, or compulsory64 George
Washington Law Review, pp. 404-433 (1986), which discusses the
four divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. See likewise HONORED
IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS
WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64
in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we
take it to mean that military involvement, even when not expressly
authorized by the Constitution or a statute, does not violate the
Posse Comitatus Act unless it actually regulates, forbids or compels
some conduct on the part of those claiming relief.1âwphi1 A mere
threat of some future injury would be insufficient. (emphasis
supplied)
Even if the Court were to apply the above rigid standards to the
present case to determine whether there is permissible use of the
military in civilian law enforcement, the conclusion is inevitable that
no violation of the civilian supremacy clause in the Constitution is
committed. On this point, the Court agrees with the observation of
the Solicitor General:

3. The designation of tasks in Annex A65 does not constitute the

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

It appears that the present petition is anchored on fear that once

the armed forces are deployed, the military will gain ascendancy,
and thus place in peril our cherished liberties. Such apprehensions,
however, are unfounded. The power to call the armed forces is just
that - calling out the armed forces. Unless, petitioner IBP can show,
which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority
or jeopardized the civil liberties of the people, this Court is not
inclined to overrule the President’s determination of the factual
basis for the calling of the Marines to prevent or suppress lawless
violence.

One last point. Since the institution of the joint visibility patrol in
January, 2000, not a single citizen has complained that his political
or civil rights have been violated as a result of the deployment of
the Marines. It was precisely to safeguard peace, tranquility and the
civil liberties of the people that the joint visibility patrol was
conceived. Freedom and democracy will be in full bloom only when
people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby

DISMISSED.
EN BANC
G.R. No. 213181 August 19, 2014
FRANCIS H. JARDELEZA Petitioner,
vs.
CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND
BAR COUNCIL AND EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
Respondents.
DECISION
MENDOZA, J.:
Once again, the Couii is faced with a controversy involving the acts
of an independent body, which is considered as a constitutional
innovation the Judicial and Bar Council (JBC). It is not the first time
that the Court is called upon to settle legal questions surrounding
the JBC's exercise of its constitutional mandate. In De Castro v. JBC,1
the Court laid to rest issues such as the duty of the JBC to
recommend prospective nominees for the position of Chief Justice
vis-à-vis the appointing power of the President, the period within
which the same may be exercised, and the ban on midnight
appointments as set forth in the Constitution. In Chavez v. JBC,2 the
Court provided an extensive discourse on constitutional intent as to
the JBC’s composition and membership.
This time, however, the selection and nomination process actually
undertaken by the JBC is being challenged for being constitutionally
infirm. The heart of the debate lies not only on the very soundness
and validity of the application of JBC rules but also the extent of its
discretionary power. More significantly, this case of first impression
impugns the end-result of its acts - the shortlistfrom which the
President appoints a deserving addition to the Highest Tribunal of
the land.
To add yet another feature of noveltyto this case, a member of the
Court, no less than the Chief Justice herself, was being impleaded as
party respondent.
The Facts
The present case finds its genesis from the compulsory retirement
of Associate Justice Roberto Abad (Associate Justice Abad) last May
22, 2014. Before his retirement, on March 6, 2014, in accordance
with its rules,3 the JBC announced the opening for application or
recommendation for the said vacated position.
On March 14, 2014, the JBC received a letter from Dean Danilo
Concepcion of the University of the Philippines nominating
petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor
General of the Republic, for the said position. Upon acceptance of
the nomination, Jardeleza was included in the names of candidates,
as well as in the schedule of public interviews. On May 29, 2014,
Jardeleza was interviewed by the JBC.
It appears from the averments in the petition that on June 16 and
17, 2014, Jardeleza received telephone callsfrom former Court of
Appeals Associate Justice and incumbent JBC member, Aurora
Santiago Lagman (Justice Lagman), who informed him that during
the meetings held on June 5 and 16, 2014, Chief Justice and JBC ex-
officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice
Sereno),manifested that she would be invoking Section 2, Rule 10 of
JBC-0094 against him. Jardeleza was then directed to "make himself
available" before the JBC on June 30, 2014, during which he would
be informed of the objections to his integrity.
Consequently, Jardeleza filed a letter-petition (letter-petition)5
praying that the Court, in the exercise of itsconstitutional power of
supervision over the JBC, issue an order: 1) directing the JBC to give
him at least five (5) working days written notice of any hearing of
the JBC to which he would be summoned; and the said notice to
contain the sworn specifications of the charges against him by his
oppositors, the sworn statements of supporting witnesses, if any,
and copies of documents in support of the charges; and notice and
sworn statements shall be made part of the public record of the JBC;
2) allowing him to cross-examine his oppositors and supporting
witnesses, if any, and the cross-examination to be conducted in
public, under the same conditions that attend the publicinterviews
held for all applicants; 3) directing the JBC to reset the hearing
scheduled on June 30, 2014 to another date; and 4) directing the
JBC to disallow Chief Justice Sereno from participating in the voting
on June 30,2014 or at any adjournment thereof where such vote
would be taken for the nominees for the position vacated by
Associate Justice Abad.
During the June 30, 2014 meeting of the JBC, sansJardeleza,
incumbent Associate Justice Antonio T. Carpio (Associate Justice
Carpio) appeared as a resource person to shed light on a classified
legal memorandum (legal memorandum) that would clarify the
objection to Jardeleza’s integrity as posed by Chief Justice Sereno.
According to the JBC, Chief Justice Sereno questioned Jardeleza’s
ability to discharge the duties of his office as shown in a confidential
legal memorandum over his handling of an international arbitration
case for the government.
Later, Jardeleza was directed to one of the Court’s ante-rooms
where Department of Justice Secretary Leila M. De Lima (Secretary
De Lima) informed him that Associate Justice Carpio appeared
before the JBC and disclosed confidential information which, to
Chief Justice Sereno, characterized his integrity as dubious. After the
briefing, Jardeleza was summoned by the JBC at around 2:00o’clock
in the afternoon.
Jardeleza alleged that he was asked by Chief Justice Sereno if he
wanted to defend himself against the integrity issues raised against
him. He answered that he would defend himself provided that due
process would be observed. Jardeleza specifically demanded that
Chief Justice Sereno execute a sworn statement specifying her
objectionsand that he be afforded the right to cross-examine her in
a public hearing. He requested that the same directive should also
be imposed on Associate Justice Carpio. As claimed by the JBC,
Representative Niel G. Tupas Jr. also manifested that he wanted to
hear for himself Jardeleza’s explanation on the matter. Jardeleza,
however, refused as he would not be lulled intowaiving his rights.
Jardeleza then put into record a written statement6 expressing his
views on the situation and requested the JBC to defer its meeting
considering that the Court en banc would meet the next day to act
on his pending letter-petition. At this juncture, Jardeleza was
excused.
Later in the afternoon of the sameday, and apparently denying
Jardeleza’s request for deferment of the proceedings, the JBC
continued its deliberations and proceeded to vote for the nominees
to be included in the shortlist. Thereafter, the JBC releasedthe
subject shortlist of four (4) nominees which included: Apolinario D.
Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes,
Maria Gracia M. Pulido Tan with five (5) votes, and Reynaldo B.
Daway with four (4) votes.7
As mentioned in the petition, a newspaper article was later
published in the online portal of the Philippine Daily Inquirer, stating
that the Court’s Spokesman, Atty. Theodore Te, revealed that there
were actually five (5) nominees who made it to the JBC shortlist, but
one (1) nominee could not be included because of the invocation of
Rule 10, Section 2 of the JBC rules.
In its July 8, 2014 Resolution, the Court noted Jardeleza’s
letterpetition in view of the transmittal of the JBC list of nominees
to the Office of the President, "without prejudice to any remedy
available in law and the rules that petitioner may still wish to
pursue."8 The said resolution was accompanied by an extensive
Dissenting Opinion penned by Associate Justice Arturo D. Brion,9
expressing his respectful disagreement as to the position taken by
the majority.
The Petition
Perceptibly based on the aforementioned resolution’s declaration as
to his availment of a remedy in law, Jardeleza filed the present
petition for certiorari and mandamus under Rule 65 of the Rules of
Court with prayer for the issuance of a Temporary Restraining Order
(TRO), seeking to compel the JBC to include him in the list
ofnominees for Supreme Court Associate Justice viceAssociate
Justice Abad, on the grounds that the JBC and Chief Justice Sereno
acted in grave abuse of discretion amounting to lack or excess of
jurisdiction in excluding him, despite having garnered a sufficient
number of votes to qualify for the position.
Notably, Jardeleza’s petition decries that despite the obvious
urgency of his earlier letter-petition and its concomitant filing on
June 25, 2014, the same was raffled only on July 1, 2014 or a day
after the controversial JBC meeting. By the time that his letter-
petition was scheduled for deliberation by the Court en bancon July
8, 2014, the disputedshortlist had already been transmitted to the
Office of the President. He attributedthis belated action on his
letter-petition to Chief Justice Sereno, whose action on such
matters, especially those impressed withurgency, was discretionary.
An in-depth perusal of Jardeleza’s petition would reveal that his
resort to judicial intervention hinges on the alleged illegality of his
exclusion from the shortlist due to: 1) the deprivation of his
constitutional right to due process; and 2) the JBC’s erroneous
application, if not direct violation, of its own rules. Suffice it to say,
Jardelezadirectly ascribes the supposed violation of his
constitutional rights tothe acts of Chief Justice Sereno in raising
objections against his integrity and the manner by which the JBC
addressed this challenge to his application, resulting in his arbitrary
exclusion from the list of nominees.
Jardeleza’s Position
For a better understanding of the above postulates proffered in the
petition, the Court hereunder succinctlysummarizes Jardeleza’s
arguments, as follows:
A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due
process in the events leading up to and during the vote on the
shortlist last June 30, 2014. When accusations against his integrity
were made twice, ex parte, by Chief Justice Sereno, without
informing him of the nature and cause thereof and without
affording him an opportunity to be heard, Jardeleza was deprived of
his right to due process. In turn, the JBC violated his right to due
process when he was simply ordered to make himself available on
the June 30, 2014 meeting and was told that the objections to his
integrity would be made known to him on the same day. Apart from
mere verbal notice (by way of a telephone call) of the invocation of
Section 2, Rule 10 of JBC-009 against his application and not on the
accusations against him per se, he was deprived of an opportunity
to mount a proper defense against it. Not only did the JBC fail to
ventilate questions on his integrity during his public interview, he
was also divested of his rights as an applicant under Sections 3 and
4, Rule 4, JBC-009, to wit:
Section 3. Testimony of parties. – The Council may receive written
opposition to an applicant on the ground of his moral fitness and, at
its discretion, the Council may receive the testimony of the
oppositor at a hearing conducted for the purpose, with due notice
to the applicant who shall be allowed to cross-examine the
oppositor and to offer countervailing evidence.
Section 4. Anonymous Complaints. – Anonymous complaints against
an applicant shall not be given due course, unless there appears on
its face a probable cause sufficient to engender belief that the
allegations may be true. In the latter case, the Council may direct a
discreet investigation or require the applicant to comment thereon
in writing or during the interview.
His lack of knowledge as to the identity of his accusers (except for
yet again, the verbalinformation conveyed to him that Associate
Justice Carpio testified against him) and as to the nature of the very
accusations against him caused him to suffer from the arbitrary
action by the JBC and Chief Justice Sereno. The latter gravely abused
her discretion when she acted as prosecutor, witness and
judge,thereby violating the very essence of fair play and the
Constitution itself. In his words: "the sui generis nature of JBC
proceedings does not authorize the Chief Justice to assume these
roles, nor does it dispense with the need to honor petitioner’s right
to due process."10
B. The JBC committed grave abuse of discretion in excluding
Jardeleza from the shortlist of nominees, in violation of its own
rules. The "unanimity requirement" provided under Section 2,
Rule10 of JBC-009 does not find application when a member of the
JBC raises an objection to an applicant’s integrity. Here, the lone
objector constituted a part of the membership of the body set to
vote. The lone objector could be completely capable oftaking
hostage the entire voting process by the mere expediency of raising
an objection. Chief Justice Sereno’s interpretation of the rule would
allow a situation where all thata member has to do to veto other
votes, including majority votes, would be to object to the
qualification of a candidate, without need for factual basis.
C. Having secured the sufficient number of votes, it was ministerial
on the part of the JBC to include Jardeleza in the subject
shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination
for appointment to a judicial position requires the affirmative vote
of at least a majority of all members of the JBC. The JBC cannot
disregard its own rules. Considering that Jardeleza was able to
secure four (4) out of six (6) votes, the only conclusion is that a
majority of the members of the JBC found him to be qualified for
the position of Associate Justice.
D. The unlawful exclusion ofthe petitioner from the subject shortlist
impairs the President’s constitutional power to appoint.Jardeleza’s
exclusion from the shortlist has unlawfully narrowed the President’s
choices. Simply put, the President would be constrained to choose
from among four (4) nominees, when five (5) applicants rightfully
qualified for the position. This limits the President to appoint a
member of the Court from a list generated through a process
tainted with patent constitutional violations and disregard for rules
of justice and fair play. Until these constitutional infirmities are
remedied, the petitioner has the right to prevent the appointment
of an Associate Justice viceAssociate Justice Abad.

Comment of the JBC
On August 11, 2014, the JBC filed its comment contending that
Jardeleza’s petition lacked proceduraland substantive bases that
would warrant favorable action by the Court. For the JBC,
certiorariis only available against a tribunal, a board or an officer
exercising judicial or quasijudicial functions.11 The JBC, in its
exercise of its mandate to recommend appointees to the Judiciary,
does not exercise any of these functions. In a pending case,12
Jardeleza himself, as one of the lawyers for the government, argued
in this wise: Certioraricannot issue against the JBC in the
implementation of its policies.
In the same vein, the remedy of mandamusis incorrect. Mandamus
does not lie to compel a discretionary act. For it to prosper, a
petition for mandamus must, among other things, show that the
petitioner has a clear legal right to the act demanded. In Jardeleza’s
case, there is no legal right to be included in the list of nominees for
judicial vacancies. Possession of the constitutional and statutory
qualifications for appointment to the Judiciary may not be used to
legally demand that one’s name be included in the list of candidates
for a judicial vacancy. One’s inclusion in the shortlist is strictly within
the discretion of the JBC.
Anent the substantive issues, the JBC mainly denied that Jardeleza
was deprived of due process. The JBC reiterated that Justice
Lagman, on behalf of the JBC en banc, called Jardeleza and informed
him that Chief Justice Sereno would be invoking Section 2, Rule 10
of JBC-009 due to a question on his integrity based on the way he
handled a very important case for the government. Jardeleza and
Justice Lagman spoke briefly about the case and his general
explanation on how he handled the same. Secretary De Lima
likewise informed him about the content of the impending objection
against his application. On these occasions, Jardeleza agreed to
explain himself. Come the June 30, 2014 meeting, however,
Jardeleza refused to shed light on the allegations against him,as he
chose to deliver a statement, which, in essence, requested that his
accuser and her witnesses file sworn statements so that he would
know of the allegations against him, that he be allowed to cross-
examine the witnesses;and that the procedure be done on record
and in public.
In other words, Jardeleza was given ample opportunity to be heard
and to enlighten each member of the JBC on the issues raised
against him prior to the voting process. His request for a sworn
statement and opportunity to cross-examine is not supported by a
demandable right. The JBC is not a fact-finding body. Neitheris it a
court nor a quasi-judicial agency. The members are notconcerned
with the determination of his guilt or innocence of the accusations
against him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely
directory as shown by the use of the word "may." Even the conduct
of a hearing to determine the veracity of an opposition is
discretionary on the JBC. Ordinarily, if there are other ways of
ascertaining the truth or falsity of an allegation or opposition, the
JBC would not call a hearing in order to avoid undue delay of the
selection process. Each member of the JBC relies on his or her own
appreciation of the circumstances and qualifications of applicants.
The JBC then proceeded to defend adherence to its standing rules.
As a general rule, an applicant is included in the shortlist when he or
she obtains an affirmative vote of at least a majority of all the
members of the JBC. When Section 2, Rule 10 of JBC-009,however,
is invoked because an applicant’s integrity is challenged, a
unanimous vote is required. Thus, when Chief Justice Sereno
invoked the saidprovision, Jardeleza needed the affirmative vote of
all the JBC members tobe included in the shortlist. In the process,
Chief Justice Sereno’s vote against Jardeleza was not counted. Even
then, he needed the votes of the five(5) remaining members. He
only got four (4) affirmative votes. As a result,he was not included in
the shortlist. Applicant Reynaldo B. Daway, who gotfour (4)
affirmative votes, was included in the shortlist because his integrity
was not challenged. As to him, the "majority rule" was considered
applicable.
Lastly, the JBC rued that Jardeleza sued the respondents in his
capacity as Solicitor General. Despiteclaiming a prefatory
appearance in propria persona, all pleadings filed with the Court
were signed in his official capacity. In effect, he sued the
respondents to pursue a purely private interest while retaining the
office of the Solicitor General. By suing the very parties he was
tasked by law to defend, Jardeleza knowingly placed himself in a
situation where his personal interests collided against his public
duties, in clear violation of the Code of Professional Responsibility
and Code of Professional Ethics. Moreover, the respondents are all
public officials being sued in their official capacity. By retaining his
title as Solicitor General, and suing in the said capacity, Jardeleza
filed a suit against his own clients, being the legal defender of the
government and its officers. This runs contrary to the fiduciary
relationship sharedby a lawyer and his client.
In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC
called to mind the constitutional period within which a vacancy in
the Court must be filled. As things now stand, the President has until
August 20, 2014 to exercise his appointment power which cannot be
restrained by a TRO or an injunctive suit.
Comment of the Executive Secretary
In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive
Secretary)raised the possible unconstitutionality of Section 2, Rule
10 of JBC-009, particularly the imposition ofa higher voting
threshold in cases where the integrity of an applicant is challenged.
It is his position that the subject JBC rule impairs the body’s collegial
character, which essentially operates on the basis of majority rule.
The application of Section 2, Rule 10 of JBC-009 gives rise to a
situation where all that a member needs to do, in order to disqualify
an applicant who may well have already obtained a majority vote, is
to object to his integrity. In effect, a member who invokes the said
provision is given a veto powerthat undermines the equal and full
participation of the other members in the nomination process. A
lone objector may then override the will ofthe majority, rendering
illusory, the collegial nature of the JBC and the very purpose for
which it was created— to shield the appointment process from
political maneuvering. Further, Section 2, Rule 10 of JBC-009 may
beviolative of due process for it does not allow an applicant any
meaningful opportunity to refute the challenges to his integrity.
While other provisions of the JBC rules provide mechanisms
enabling an applicant to comment on an opposition filed against
him, the subject rule does not afford the same opportunity. In this
case, Jardeleza’s allegations as to the events which transpired on
June 30, 2014 obviously show that he was neither informed ofthe
accusations against him nor given the chance to muster a defense
thereto.
The Executive Secretary then offered a supposition: granting that
the subject provision is held to be constitutional, the "unanimity
rule" would only be operative when the objector is not a member of
the JBC. It is only in this scenario where the voting ofthe body would
not be rendered inconsequential. In the event that a JBC member
raised the objection, what should have been applied is the general
rule of a majority vote, where any JBC member retains their
respective reservations to an application with a negative vote.
Corollary thereto, the unconstitutionality of the said rule would
necessitate the inclusion of Jardeleza in the shortlist submitted to
the President.
Other pleadings
On August 12, 2014, Jardeleza was given the chance to refute the
allegations of the JBC in its Comment. He submitted his Reply
thereto on August 15, 2014. A few hours thereafter, orbarely ten
minutes prior to the closing of business, the Court received the
Supplemental Comment-Reply of the JBC, this time with the
attached minutes of the proceedings that led to the filing of the
petition,and a detailed "Statementof the Chief Justice on the
Integrity Objection."13 Obviously, Jardeleza’s Reply consisted only
of his arguments against the JBC’s original Comment, as it was filed
prior to the filing of the Supplemental Comment-Reply.
At the late stage of the case, two motions to admit comments-
inintervention/oppositions-in-intervention were filed. One was by
Atty. Purificacion S. Bartolome-Bernabe, purportedly the President
of the Integrated Bar of the Philippines-Bulacan Chapter. This
pleading echoed the position of the JBC.14
The other one was filed by Atty. Reynaldo A. Cortes, purportedly a
former President of the IBP Baguio-Benguet Chapter and former
Governor of the IBP-Northern Luzon. It was coupled with a
complaint for disbarment against Jardeleza primarily for violations
of the Code of Professional Responsibility for representing
conflicting interests.15
Both motions for intervention weredenied considering that time
was of the essence and their motions were merely reiterative of the
positions of the JBC and were perceived to be dilatory. The
complaint for disbarment, however, was re-docketed as a separate
administrative case.
The Issues
Amidst a myriad of issues submitted by the parties, most of which
are interrelated such that the resolution of one issue would
necessarily affect the conclusion as to the others, the Court opts to
narrow down the questions to the very source of the discord - the
correct application of Section 2, Rule 10 JBC-009 and its effects, if
any, on the substantive rights of applicants.
The Court is not unmindful of the fact that a facial scrutiny of the
petition does not directly raise the unconstitutionality of the subject
JBC rule. Instead, it bewails the unconstitutional effects of its
application. It is only from the comment of the Executive Secretary
where the possible unconstitutionality of the rulewas brought to the
fore. Despite this milieu, a practical approach dictatesthat the Court
must confront the source of the bleeding from which the gaping
wound presented to the Court suffers.
The issues for resolution are:
I.
WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND
GIVE DUECOURSE TO THE SUBJECT PETITION FOR CERTIORARI AND
MANDAMUS (WITH APPLICATION FOR A TEMPORARY RESTRAINING
ORDER).
II
WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT
"QUESTIONS OR CHALLENGES ON INTEGRITY" AS CONTEMPLATED
UNDER SECTION 2, RULE 10 OF JBC-009.
II.
WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN
THE COURSE OF JBC PROCEEDINGS IN CASES WHERE AN OBJECTION
OR OPPOSITION TO AN APPLICATION IS RAISED.
III.
WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN
THE SHORTLIST OF NOMINEES SUBMITTED TO THE PRESIDENT.
The Court’s Ruling
I – Procedural Issue: The Court has constitutional bases to assume
jurisdiction over the case
A - The Court’s Power of Supervision over the JBC
Section 8, Article VIII of the 1987 Constitution provides for the
creation of the JBC. The Court was given supervisory authority over
it. Section 8 reads:
Section 8.
A Judicial and Bar Council is hereby created under the supervision of
the Supreme Courtcomposed of the Chief Justice as ex officio
Chairman, the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of the Integrated
Bar, a professor of law, a retired Member of the Supreme Court, and
a representative of the private sector. [Emphasis supplied]
As a meaningful guidepost, jurisprudence provides the definition
and scope of supervision. It is the power of oversight, or the
authority to see that subordinate officers perform their duties.It
ensures that the laws and the rules governing the conduct of a
government entity are observed and complied with. Supervising
officials see to it that rules are followed, but they themselves do not
lay down such rules, nor do they have the discretion to modify or
replace them. If the rules are not observed, they may order the
work done or redone, but only to conform to such rules. They may
not prescribe their own manner of execution of the act. They have
no discretion on this matter except to see to it that the rules are
followed.16
Based on this, the supervisory authority of the Court over the JBC
covers the overseeing of compliance with its rules. In this case,
Jardeleza’s principal allegations in his petition merit the exercise of
this supervisory authority.
B- Availability of the Remedy of Mandamus
The Court agrees with the JBC that a writ of mandamus is not
available. "Mandamuslies to compel the performance, when
refused, of a ministerial duty, but not to compel the performance of
a discretionary duty. Mandamuswill not issue to control or review
the exercise of discretion of a public officer where the law imposes
upon said public officer the right and duty to exercise his judgment
in reference to any matter in which he is required to act. It is his
judgment that is to be exercised and not that of the court.17 There
is no question that the JBC’s duty to nominate is discretionary and it
may not becompelled to do something.

C- Availability of the Remedy of Certiorari
Respondent JBC opposed the petition for certiorarion the ground
that it does not exercise judicial or quasi-judicial functions. Under
Section 1 of Rule 65, a writ of certiorariis directed against a tribunal
exercising judicial or quasi-judicial function. "Judicial functions are
exercised by a body or officer clothed with authority to determine
what the law is and what the legal rights of the parties are with
respect to the matter in controversy. Quasijudicial function is a term
that applies to the action or discretion of public administrative
officers or bodies given the authority to investigate facts or
ascertain the existence of facts, hold hearings, and draw conclusions
from them as a basis for their official action using discretion of a
judicial nature."18 It asserts that in the performance of its function
of recommending appointees for the judiciary, the JBC does not
exercise judicial or quasijudicial functions. Hence, the resort tosuch
remedy to question its actions is improper.
In this case, Jardeleza cries that although he earned a qualifying
number of votes in the JBC, it was negated by the invocation of the
"unanimity rule" on integrity in violation of his right to due process
guaranteed not only by the Constitution but by the Council’s own
rules. For said reason, the Court is of the position that it can exercise
the expanded judicial power of review vestedupon it by the 1987
Constitution. Thus:
Article VIII.
Section 1. The judicial power is vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
It has been judicially settled that a petition for certiorari is a proper
remedy to question the act of any branch or instrumentality of the
government on the ground of grave abuse of discretion amounting
to lack or excess of jurisdiction by any branch orinstrumentality of
the government, even if the latter does not exercise judicial, quasi-
judicial or ministerial functions.19
In a case like this, where constitutional bearings are too blatant to
ignore, the Court does not find passivity as an alternative. The
impassemust be overcome.
II – Substantial Issues
Examining the Unanimity Rule of the JBC in cases where an
applicant’s integrity is challenged
The purpose of the JBC’s existence is indubitably rooted in the
categorical constitutional declaration that"[a] member of the
judiciary must be a person of proven competence, integrity, probity,
and independence." To ensure the fulfillment of these standards in
every member of the Judiciary, the JBC has been tasked toscreen
aspiring judges and justices, among others, making certain that the
nominees submitted to the President are all qualified and suitably
best for appointment. In this way, the appointing process itself is
shieldedfrom the possibility of extending judicial appointment to
the undeserving and mediocre and, more importantly, to the
ineligible or disqualified.
In the performance of this sacred duty, the JBC itself admits, as
stated in the "whereas clauses" of JBC-009, that qualifications such
as "competence, integrity, probity and independence are not easily
determinable as they are developed and nurtured through the
years." Additionally, "it is not possible or advisable to lay down iron-
clad rules to determine the fitness of those who aspire to become a
Justice, Judge, Ombudsman or Deputy Ombudsman." Given this
realistic situation, there is a need "to promote stability and
uniformity in JBC’s guiding precepts and principles." A set of uniform
criteria had to be established in the ascertainment of "whether one
meets the minimum constitutional qualifications and possesses
qualities of mind and heart expected of him" and his office. Likewise
for the sake oftransparency of its proceedings, the JBC had put
these criteria in writing, now in the form of JBC-009. True enough,
guidelines have been set inthe determination of competence,"20
"probity and independence,"21 "soundness of physical and mental
condition,22 and "integrity."23
As disclosed by the guidelines and lists of recognized evidence of
qualification laid down in JBC-009, "integrity" is closely related to, or
if not, approximately equated to an applicant’s good reputation for
honesty, incorruptibility, irreproachableconduct, and fidelity to
sound moral and ethical standards. That is why proof of an
applicant’s reputation may be shown in certifications or testimonials
from reputable government officials and non-governmental
organizations and clearances from the courts, National Bureau of
Investigation, and the police, among others. In fact, the JBC may
even conduct a discreet background check and receive feedback
from the public on the integrity, reputation and character of the
applicant, the merits of which shall be verifiedand checked. As a
qualification, the term is taken to refer to a virtue, such that,
"integrity is the quality of person’s character."24
The foregoing premise then begets the question: Does Rule 2,
Section 10 of JBC-009, in imposing the "unanimity rule,"
contemplate a doubt on the moral character of an applicant?
Section 2, Rule 10 of JBC-009 provides:
SEC. 2. Votes required when integrity of a qualified applicant is
challenged. - In every case where the integrity of an applicant who is
not otherwise disqualified for nomination is raised or challenged,
the affirmative vote of all the Members of the Council must be
obtained for the favorable consideration of his nomination.
A simple reading of the above provision undoubtedly elicits the rule
that a higher voting requirement is absolute in cases where the
integrity of an applicant is questioned. Simply put, when an integrity
question arises, the voting requirement for his or her inclusion as a
nominee to a judicial post becomes "unanimous" instead of the
"majority vote" required in the preceding section.25 Considering
that JBC-009 employs the term "integrity" as an essential
qualification for appointment, and its doubtful existence in a person
merits a higher hurdle to surpass, that is, the unanimous vote of all
the members of the JBC, the Court is of the safe conclusion that
"integrity" as used in the rules must be interpreted uniformly.
Hence, Section 2, Rule 10 of JBC-009 envisions only a situation
where an applicant’s moral fitness is challenged. It follows then that
the "unanimity rule" only comes into operation when the moral
character of a person is put in issue. It finds no application where
the question is essentially unrelated to an applicant’s moral
uprightness.
Examining the "questions of integrity" made against Jardeleza
The Court will now examine the propriety of applying Section 2, Rule
10 of JBC-009 to Jardeleza’s case.

The minutes of the JBC meetings, attached to the Supplemental
Comment-Reply, reveal that during the June 30, 2014 meeting, not
only the question on his actuations in the handling of a case was
called for explanation by the Chief Justice, but two other grounds as
well tending to show his lack of integrity: a supposed extra-marital
affair in the past and alleged acts of insider trading.26
Against this factual backdrop, the Court notes that the initial or
original invocation of Section 2, Rule 10 of JBC-009 was grounded on
Jardeleza’s "inability to discharge the duties of his office" as shown
in a legal memorandum related to Jardeleza’s manner of
representing the government in a legal dispute. The records bear
that the "unanimity rule" was initially invoked by Chief Justice
Sereno during the JBC meeting held on June 5, 2014, where she
expressed her position that Jardeleza did not possess the integrity
required tobe a member of the Court.27 In the same meeting, the
Chief Justice shared withthe other JBC members the details of
Jardeleza’s chosen manner of framing the government’s position in
a case and how this could have been detrimental to the national
interest.
In the JBC’s original comment, the details of the Chief Justice’s claim
against Jardeleza’s integrity were couched in general terms. The
particulars thereof were only supplied to the Court in the JBC’s
Supplemental Comment-Reply. Apparently, the JBC acceded to
Jardeleza’s demand to make the accusations against him public. At
the outset, the JBC declined to raise the fine points of the integrity
question in its original Comment due to its significant bearing on the
country’s foreign relations and national security. At any rate, the
Court restrains itself from delving into the details thereof in this
disposition. The confidential nature of the document cited therein,
which requires the observance of utmost prudence, preclude a
discussion that may possibly affect the country’s position in a
pending dispute.
Be that as it may, the Court has to resolve the standing questions:
Does the original invocation of Section 2, Rule 10 of JBC-009 involve
a question on Jardeleza’s integrity? Doeshis adoption of a specific
legal strategy in the handling of a case bring forth a relevant and
logical challenge against his moral character? Does the "unanimity
rule" apply in cases where the main point of contention is the
professional judgment sans charges or implications of immoral or
corrupt behavior?
The Court answers these questions in the negative.
While Chief Justice Sereno claims that the invocation of Section 2,
Rule 10 of JBC-009 was not borne out ofa mere variance of legal
opinion but by an "act of disloyalty" committed by Jardeleza in the
handling of a case, the fact remains that the basis for her invocation
of the rule was the "disagreement" in legal strategy as expressed by
a group of international lawyers. The approach taken by Jardeleza in
that case was opposed to that preferred by the legal team. For said
reason, criticism was hurled against his "integrity." The invocation of
the "unanimity rule" on integrity traces its roots to the exercise
ofhis discretion as a lawyer and nothing else. No connection was
established linking his choice of a legal strategy to a treacherous
intent to trounce upon the country’s interests or to betray the
Constitution.
Verily, disagreement in legal opinion is but a normal, if not an
essential form of, interaction among members of the legal
community. A lawyer has complete discretion on whatlegal strategy
to employ in a case entrusted to him28 provided that he lives up
tohis duty to serve his client with competence and diligence, and
that he exert his best efforts to protect the interests of his client
within the bounds of the law. Consonantly, a lawyer is not an insurer
of victory for clients he represents. An infallible grasp of legal
principles and technique by a lawyer is a utopian ideal. Stripped of a
clear showing of gross neglect, iniquity, or immoral purpose, a
strategy of a legal mind remains a legal tactic acceptable to some
and deplorable to others. It has no direct bearing on his moral
choices.
As shown in the minutes, the other JBC members expressed their
reservations on whether the ground invoked by Chief Justice Sereno
could be classified as a "question of integrity" under Section 2, Rule
10 of JBC-009.29 These reservations were evidently sourced from
the factthat there was no clear indication that the tactic was a
"brainchild" of Jardeleza, as it might have been a collective idea by
the legal team which initially sought a different manner of
presenting the country’s arguments, and there was no showing
either of a corrupt purpose on his part.30 Even Chief Justice Sereno
was not certain that Jardeleza’s acts were urged by politicking or
lured by extraneous promises.31 Besides, the President, who has
the final say on the conduct of the country’s advocacy in the case,
has given no signs that Jardeleza’s action constituted disloyalty or a
betrayal of the country’s trust and interest. While this point does
notentail that only the President may challenge Jardeleza’s doubtful
integrity, itis commonsensical to assume that he is in the best
position to suspect a treacherous agenda. The records are bereft of
any information that indicatesthis suspicion. In fact, the Comment
of the Executive Secretary expressly prayed for Jardeleza’s inclusion
in the disputed shortlist.
The Court notes the zeal shown by the Chief Justice regarding
international cases, given her participation in the PIATCO case and
the Belgian Dredging case. Her efforts inthe determination of
Jardeleza’s professional background, while commendable, have not
produced a patent demonstration of a connection betweenthe act
complained of and his integrity as a person. Nonetheless, the Court
cannot consider her invocation of Section 2, Rule 10 of JBC-009 as
conformably within the contemplation of the rule. To fall under
Section 2, Rule 10 of JBC-009, there must be a showing that the act
complained of is, at the least, linked to the moral character of the
person and not to his judgment as a professional. What this
disposition perceives, therefore, is the inapplicability of Section 2,
Rule 10 of JBC-009 to the original ground of its invocation.
As previously mentioned, Chief Justice Sereno raised the issues of
Jardeleza’s alleged extra-marital affair and acts of insider-trading for
the first time onlyduring the June 30, 2014 meeting of the JBC. As
can be gleaned from the minutes of the June 30, 2014 meeting, the
inclusion of these issues had its origin from newspaper reports that
the Chief Justice might raise issues of "immorality" against
Jardeleza.32 The Chief Justice then deduced that the "immorality"
issue referred to by the media might have been the incidents that
could have transpired when Jardeleza was still the General Counsel
of San Miguel Corporation. She stated that inasmuch as the JBC had
the duty to "take every possible step to verify the qualification of
the applicants," it might as well be clarified.33
Do these issues fall within the purview of "questions on integrity"
under Section 2, Rule 10 of JBC-009? The Court nods in assent.
These are valid issues.
This acquiescence is consistent with the Court’s discussion supra.
Unlike the first ground which centered onJardeleza’s stance on the
tactical approach in pursuing the case for the government, the
claims of an illicit relationship and acts of insider trading bear a
candid relation to his moral character. Jurisprudence34 is replete
with cases where a lawyer’s deliberate participation in extra-marital
affairs was considered as a disgraceful stain on one’s ethical and
moral principles. The bottom line is that a lawyer who engages in
extra-marital affairs is deemed to have failed to adhere to the
exacting standards of morality and decency which every member of
the Judiciary is expected to observe. In fact, even relationships
which have never gone physical or intimate could still be subject to
charges of immorality, when a lawyer, who is married, admits to
having a relationship which was more than professional, more than
acquaintanceship, more than friendly.35 As the Court has held:
Immorality has not been confined to sexual matters, but includes
conduct inconsistentwith rectitude, or indicative of corruption,
indecency, depravity and dissoluteness; or is willful, flagrant, or
shameless conduct showing moral indifference to opinions of
respectable members of the communityand an inconsiderate
attitude toward good order and public welfare.36 Moral character is
not a subjective term but one that corresponds to objective
reality.37 To have a good moral character, a person must have the
personal characteristic ofbeing good. It is not enough that he or she
has a good reputation, that is, the opinion generally entertained
about a person or the estimate in which he or she is held by the
public in the place where she is known.38 Hence, lawyers are at all
times subject to the watchful public eye and community
approbation.39
The element of "willingness" to linger in indelicate relationships
imputes a weakness in one’s values, self-control and on the whole,
sense of honor, not only because it is a bold disregard of the sanctity
of marriage and of the law, but because it erodes the public’s
confidence in the Judiciary. This is no longer a matter of an honest
lapse in judgment but a dissolute exhibition of disrespect toward
sacredvows taken before God and the law.
On the other hand, insider trading is an offense that assaults the
integrity of our vital securities market.40 Manipulative devices and
deceptive practices, including insider trading, throw a monkey
wrench right into the heart of the securities industry.
Whensomeone trades inthe market with unfair advantage in the
form of highly valuable secret inside information, all other
participants are defrauded. All of the mechanisms become
worthless. Given enough of stock marketscandals coupled with the
related loss of faith in the market, such abuses could presage a
severe drain of capital. And investors would eventuallyfeel more
secure with their money invested elsewhere.41 In its barest
essence, insider trading involves the trading of securities based on
knowledge of material information not disclosed to the public at the
time. Clearly, an allegation of insider trading involves the propensity
of a person toengage in fraudulent activities that may speak of his
moral character.
These two issues can be properly categorized as "questions on
integrity" under Section 2, Rule 10 of JBC-009. They fall within the
ambit of "questions on integrity." Hence, the "unanimity rule" may
come into operation as the subject provision is worded.
The Availability of Due Process in the
Proceedings of the JBC
In advocacy of his position, Jardeleza argues that: 1] he should have
been informed of the accusations against him in writing; 2] he was
not furnished the basis of the accusations, that is, "a very
confidential legal memorandum that clarifies the
integrityobjection"; 3] instead of heeding his request for an
opportunity to defend himself, the JBC considered his refusal to
explain, during the June 30, 2014 meeting, as a waiver of his right to
answer the unspecified allegations; 4] the voting of the JBC was
railroaded; and 5] the alleged "discretionary" nature of Sections 3
and 4 of JBC-009 is negated by the subsequent effectivity of JBC-
010, Section 1(2) of which provides for a 10-day period from the
publication of the list of candidates within which any complaint or
opposition against a candidate may be filed with the JBC Secretary;
6] Section 2 of JBC-010 requires complaints and oppositions to be in
writing and under oath, copies of which shall be furnished the
candidate in order for him to file his comment within five (5) days
from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a
logical, reasonable and sequential series of steps in securing a
candidate’s right to due process.
The JBC counters these by insisting that it is not obliged to afford
Jardeleza the right to a hearing in the fulfillment of its duty to
recommend. The JBC, as a body, is not required by law to hold
hearings on the qualifications of the nominees. The process by
which an objection is made based on Section 2, Rule 10 of JBC-009 is
not judicial, quasi-judicial, or fact-finding, for it does not aim to
determine guilt or innocence akin to a criminal or administrative
offense but toascertain the fitness of an applicant vis-à-vis the
requirements for the position. Being sui generis, the proceedings of
the JBC do not confer the rights insisted upon by Jardeleza. He may
not exact the application of rules of procedure which are, at the
most, discretionary or optional. Finally, Jardeleza refused to shed
light on the objections against him. During the June 30, 2014
meeting, he did not address the issues, but instead chose totread on
his view that the Chief Justice had unjustifiably become his accuser,
prosecutor and judge.
The crux of the issue is on the availability of the right to due process
in JBC proceedings. After a tedious review of the parties’ respective
arguments, the Court concludes that the right to due process is
available and thereby demandable asa matter of right.
The Court does not brush aside the unique and special nature of JBC
proceedings. Indeed, they are distinct from criminal proceedings
where the finding of guilt or innocence of the accused is sine qua
non. The JBC’s constitutional duty to recommend qualified
nominees to the President cannot be compared to the duty of the
courts of law to determine the commission of an offense and
ascribe the same to an accused, consistent with established rules on
evidence. Even the quantum ofevidence required in criminal cases is
far from the discretion accorded to the JBC.
The Court, however, could not accept, lock, stock and barrel, the
argument that an applicant’s access tothe rights afforded under the
due process clause is discretionary on the part of the JBC. While the
facets of criminal42 and administrative43 due process are not
strictly applicable to JBC proceedings, their peculiarity is insufficient
to justify the conclusion that due process is not demandable.
In JBC proceedings, an aspiring judge or justice justifies his
qualifications for the office when he presents proof of his scholastic
records, work experience and laudable citations. His goal is to
establish that he is qualified for the office applied for. The JBC then
takes every possible step to verify an applicant's trackrecord for the
purpose ofdetermining whether or not he is qualified for
nomination. It ascertains the factors which entitle an applicant to
become a part of the roster from which the President appoints.
The fact that a proceeding is sui generisand is impressed with
discretion, however, does not automatically denigrate an applicant’s
entitlement to due process. It is well-established in jurisprudence
that disciplinary proceedings against lawyers are sui generisin that
they are neither purely civil nor purely criminal; they involve
investigations by the Court into the conduct of one of its officers,
not the trial of an action or a suit.44 Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the
Bar to accountfor his actuations as an officer of the Court with the
end in view of preserving the purity of the legal profession and the
proper and honest administration of justice by purging the
profession of members who, by their misconduct, have proved
themselves no longer worthy to be entrusted with the duties and
responsibilities pertaining to the office of an attorney. In such
posture, there can be no occasion to speak of a complainant or a
prosecutor.45 On the whole, disciplinary proceedings are actually
aimed to verifyand finally determine, if a lawyer charged is still
qualifiedto benefit from the rights and privileges that membership
in the legal profession evoke.
Notwithstanding being "a class of itsown," the right to be heard and
to explain one’s self is availing. The Court subscribes to the view that
in cases where an objection to an applicant’s qualifications is raised,
the observance of due process neither negates nor renders illusory
the fulfillment of the duty of JBC torecommend. This holding is not
an encroachment on its discretion in the nomination process.
Actually, its adherence to the precepts of due process supports and
enriches the exercise of its discretion. When an applicant, who
vehemently denies the truth of the objections, is afforded the
chance to protest, the JBC is presented with a clearer understanding
of the situation it faces, thereby guarding the body from making an
unsound and capriciousassessment of information brought before it.
The JBC is not expected to strictly apply the rules of evidence in its
assessment of an objection against an applicant. Just the same, to
hear the side of the person challenged complies with the dictates of
fairness for the only test that an exercise of discretion must
surmount is that of soundness.
A more pragmatic take on the matter of due process in JBC
proceedings also compels the Court to examine its current rules.
The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-
010. The former provides the following provisions pertinent to this
case:
SECTION 1. Evidence of integrity. - The Council shall take every
possible step to verify the applicant's record of and reputation for
honesty, integrity, incorruptibility, irreproachable conduct, and
fidelity to sound moral and ethical standards. For this purpose, the
applicant shall submit to the Council certifications or testimonials
thereof from reputable government officials and non-governmental
organizations, and clearances from the courts, National Bureau of
Investigation, police, and from such other agencies as the Council
may require.
SECTION 2. Background check. - The Council mayorder a discreet
background check on the integrity, reputation and character of the
applicant, and receive feedback thereon from the public, which it
shall check or verify to validate the merits thereof.
SECTION 3. Testimony of parties.- The Council may receive written
opposition to an applicant on groundof his moral fitness and, at its
discretion, the Council mayreceive the testimony of the oppositor at
a hearing conducted for the purpose, with due notice to the
applicant who shall be allowed to cross-examine the oppositor and
to offer countervailing evidence.
SECTION 4. Anonymous complaints. - Anonymous complaints
against an applicant shall not begiven due course, unless there
appears on its face a probable cause sufficient to engender belief
that the allegations may be true. In the latter case, the Council may
either direct a discreet investigation or require the applicant to
comment thereon in writing or during the interview. [Emphases
Supplied]
While the "unanimity rule" invoked against him is found in JBC-009,
Jardeleza urges the Court to hold that the subsequent rule, JBC-
010,46 squarely applies to his case. Entitled asa "Rule to Further
Promote Public Awareness of and Accessibility to the Proceedings of
the Judicial and Bar Council," JBC-010 recognizes the needfor
transparency and public awareness of JBC proceedings. In
pursuance thereof, JBC-010 was crafted in this wise:
SECTION 1. The Judicial and Bar Council shall deliberate to
determine who of the candidates meet prima facie the qualifications
for the positionunder consideration. For this purpose, it shall
prepare a long list of candidates who prima facieappear to have all
the qualifications.
The Secretary of the Council shall then cause to be published in two
(2) newspapers of general circulation a notice of the long list of
candidates in alphabetical order.
The notice shall inform the public that any complaint or opposition
against a candidate may be filed with the Secretary within ten (10)
days thereof.
SECTION 2.The complaint or opposition shall be in writing, under
oath and in ten (10) legible copies, together with its supporting
annexes. It shall strictly relate to the qualifications of the candidate
or lack thereof, as provided for in the Constitution, statutes, and the
Rules of the Judicial and Bar Council, as well as resolutions or
regulations promulgated by it.
The Secretary of the Council shallfurnish the candidate a copy of the
complaint or opposition against him. The candidate shall have five
(5) days from receipt thereof within which to file his comment to
the complaint or opposition, if he so desires.
SECTION 3.The Judicial and Bar Council shall fix a date when it shall
meet in executive session to consider the qualification of the long
list of candidates and the complaint or opposition against them, if
any. The Council may, on its own, conduct a discreet investigation of
the background of the candidates.
On the basis of its evaluationof the qualification of the candidates,
the Council shall prepare the shorter list of candidates whom it
desires to interview for its further consideration.
SECTION 4.The Secretary of the Council shall again cause to be
published the dates of the interview of candidates in the shorter list
in two (2) newspapers of general circulation. It shall likewise be
posted in the websites of the Supreme Court and the Judicial and
Bar Council.
The candidates, as well as their oppositors, shall be separately
notified of the dateand place of the interview.
SECTION 5.The interviews shall be conducted in public. During the
interview, only the members ofthe Council can ask questions to the
candidate. Among other things, the candidate can be made to
explain the complaint or opposition against him.
SECTION 6. After the interviews, the Judicial and Bar Council shall
again meet in executive session for the final deliberation on the
short list of candidates which shall be sent to the Office of the
President as a basis for the exercise of the Presidential power of
appointment. [Emphases supplied]
Anent the interpretation of these existing rules, the JBC contends
that Sections 3 and 4, Rule 10 of JBC-009 are merely directory in
nature as can be gleaned from the use of the word "may." Thus, the
conduct of a hearing under Rule 4 of JBC-009 is permissive and/or
discretionary on the part of the JBC. Even the conduct of a hearing
to determine the veracity of an opposition is discretionary for there
are ways, besides a hearing, to ascertain the truth or falsity of
allegations. Succinctly, this argument suggests that the JBC has the
discretion to hold or not to hold a hearing when an objection to an
applicant’s integrity is raised and that it may resort to other means
to accomplish its objective. Nevertheless, JBC adds, "what is
mandatory, however, is that if the JBC, in its discretion, receives a
testimony of an oppositor in a hearing, due notice shall be given to
the applicant and that shall be allowed to cross-examine the
oppositor."47 Again, the Court neither intends to strip the JBC of its
discretion to recommend nominees nor proposes thatthe JBC
conduct a full-blown trial when objections to an application are
submitted. Still, it is unsound to say that, all together, the
observance of due process is a part of JBC’s discretion when an
opposition to an application is made of record. While it may so rely
on "other means" such as character clearances, testimonials, and
discreet investigation to aid it in forming a judgment of an
applicant’s qualifications, the Court cannot accept a situation where
JBC is given a full rein on the application of a fundamental right
whenever a person’s integrity is put to question. In such cases, an
attack on the person of the applicant necessitates his right to
explain himself.
The JBC’s own rules convince the Court to arrive at this conclusion.
The subsequent issuance of JBC-010 unmistakably projects the JBC’s
deference to the grave import of the right of the applicant to be
informed and corollary thereto, the right to be heard. The provisions
of JBC-010, per se, provide that: any complaint or opposition against
a candidate may be filed with the Secretary within ten (10) days
thereof; the complaint or opposition shall be in writing, under oath
and in ten (10) legible copies; the Secretary of the Council shall
furnish the candidate a copy of the complaint or opposition against
him; the candidate shall have five (5) days from receipt thereof
within which to file his comment to the complaint or opposition, if
he so desires; and the candidate can be made to explain the
complaint or opposition against him.
The Court may not close its eyes to the existence of JBC-010 which,
under the rules of statutory construction,bears great weight in that:
1] it covers "any" complaint or opposition; 2] it employs the
mandatory term, "shall"; and 3] most importantly, it speaks of the
very essence of due process. While JBC-010 does not articulate a
procedure that entails a trialtype hearing, it affords an applicant,
who faces "any complaint or opposition," the right to answer the
accusations against him. This constitutes the minimum
requirements of due process.
Application to Jardeleza’s Case
Nearing the ultimate conclusion of this case, the Court is behooved
to rule on whether Jardeleza was deprived of his right to due
process in the events leading up to, and during, the vote on the
shortlist last June 30, 2014.
The JBC gives great weight and substance to the fact that it gave
Jardeleza the opportunity to answer the allegations against him. It
underscores the fact that Jardeleza was asked to attend the June 30,
2014 meeting so that he could shed light on the issues thrown at
him. During the said meeting, Chief Justice Sereno informed him
that in connection with his candidacy for the position of Associate
Justice of the Supreme Court, the Council would like to propound
questions on the following issues raised against him: 1] his
actuations in handling an international arbitration case not
compatible with public interest;48 2] reports on his extra-marital
affair in SMC; and 3] alleged insider trading which led to the "show
cause" order from the Philippine Stock Exchange.49
As Jardeleza himself admitted, he declined to answer or to explain
his side, as he would not want to be "lulled into waiving his rights."
Instead, he manifested that his statement be put on record and
informed the Council of the then pendency of his letter-petition
with the Court en banc. When Chief Justice Sereno informed
Jardeleza that the Council would want to hear from him on the
three (3) issues against him,Jardeleza reasoned out that this was
precisely the issue. He found it irregular that he was not being given
the opportunity to be heard per the JBC rules.He asserted that a
candidate must be given the opportunity to respond to the charges
against him. He urged the Chief Justice to step down from her
pedestal and translate the objections in writing. Towards the end of
the meeting, the Chief Justice said that both Jardeleza’s written and
oral statements would be made part of the record. After Jardeleza
was excused from the conference, Justice Lagman suggested that
the voting be deferred, but the Chief Justice ruled that the Council
had already completed the process required for the voting to
proceed.
After careful calibration of the case, the Court has reached the
determination that the application of the "unanimity rule" on
integrity resulted in Jardeleza’s deprivation of his right to due
process.
As threshed out beforehand, due process, as a constitutional
precept, does not always and in all situations require a trial-type
proceeding. Due process is satisfied when a person is notified of the
charge against him and given an opportunity to explain or defend
himself.50 Even as Jardeleza was verbally informed of the invocation
of Section 2, Rule 10 of JBC-009 against him and was later asked to
explain himself during the meeting, these circumstances still cannot
expunge an immense perplexity that lingers in the mind of the
Court. What is to become of the procedure laid down in JBC-010 if
the same would be treated with indifference and disregard? To
repeat, as its wording provides, any complaint or opposition against
a candidate may be filed with the Secretary withinten (10) days from
the publication of the notice and a list of candidates. Surely, this
notice is all the more conspicuous to JBC members. Granting ex
argumenti, that the 10-day period51 is only applicable to the public,
excluding the JBC members themselves, this does not discount the
fact that the invocation of the first ground in the June 5, 2014
meeting would have raised procedural issues. To be fair, several
members of the Council expressed their concern and desire to hear
out Jardeleza but the application of JBC-010 did not form part of the
agenda then. It was only during the next meeting on June 16, 2014,
that the Council agreed to invite Jardeleza, by telephone, to a
meeting that would be held on the same day when a resource
person would shed light on the matter.
Assuming again that the classified nature of the ground impelled the
Council to resort to oral notice instead of furnishing Jardeleza a
written opposition, why did the JBC not take into account its
authority to summon Jardeleza in confidence at an earlier time? Is
not the Council empowered to "take every possible step to verify
the qualification of the applicants?" It would not be amiss to state,
at this point, that the confidential legal memorandum used in the
invocation ofthe "unanimity rule" was actually addressed to
Jardeleza, in his capacity as Solicitor General. Safe to assume is his
knowledge of the privileged nature thereof and the consequences of
its indiscriminate release to the public. Had he been privately
informed of the allegations against him based on the document and
had he been ordered to respond thereto in the same manner,
Jardeleza’s right to be informed and to explain himself would have
been satisfied.
What precisely set off the protest of lack of due process was the
circumstance of requiring Jardeleza to appear before the Council
and to instantaneously provide those who are willing to listen an
intelligent defense. Was he given the opportunity to do so? The
answer is yes, in the context of his physical presence during the
meeting. Was he given a reasonable chance to muster a defense?
No, because he was merely asked to appear in a meeting where he
would be, right then and there, subjected to an inquiry. It would all
be too well to remember that the allegations of his extra-marital
affair and acts of insider trading sprung up only during the June 30,
2014 meeting. While the said issues became the object of the JBC
discussion on June 16, 2014, Jardeleza was not given the idea that
he should prepare to affirm or deny his past behavior. These
circumstances preclude the very idea of due process in which the
right to explain oneself is given, not to ensnare by surprise, but
toprovide the person a reasonable opportunity and sufficient time
to intelligently muster his response. Otherwise, the occasion
becomes anidle and futile exercise.
Needless to state, Jardeleza’s grievance is not an imagined slight but
a real rebuff of his right to be informed of the charges against him
and his right to answer the same with vigorouscontention and active
participation in the proceedings which would ultimately decide his
aspiration to become a magistrate of this Court.
Consequences
To write finisto this controversy and in view of the realistic and
practical fruition of the Court’s findings, the Court now declares its
position on whether or not Jardeleza may be included in the
shortlist, just in time when the period to appoint a member of the
Court is about to end.
The conclusion of the Court is hinged on the following pivotal
points:
1. There was a misapplication of the "unanimity rule" under Section
2, Rule 10 of JBC-009 as to Jardeleza’s legal strategy in handling a
case for the government.
2. While Jardeleza’s alleged extra-marital affair and acts of insider
trading fall within the contemplation of a "question on integrity"
and would have warranted the application of the "unanimity rule,"
he was notafforded due process in its application.
3. The JBC, as the sole body empowered to evaluate applications for
judicial posts, exercises full discretion on its power to recommend
nomineesto the President. The sui generischaracter of JBC
proceedings, however, is not a blanket authority to disregard the
due process under JBC-010.
4. Jardeleza was deprived of his right to due process when, contrary
to the JBC rules, he was neither formally informed of the questions
on his integrity nor was provided a reasonable opportunity to
prepare his defense.
With the foregoing, the Court is compelled to rule that Jardeleza
should have been included in the shortlist submitted to the
President for the vacated position of Associate Justice Abad. This
consequence arose not from the unconstitutionality of Section 2,
Rule 10 of JBC-009, per se, but from the violation by the JBC of its
own rules of procedure and the basic tenets of due process. By no
means does the Court intend to strike down the "unanimity rule" as
it reflects the JBC’s policy and, therefore, wisdom in its selection of
nominees. Even so, the Court refuses to turn a blind eye on the
palpable defects in its implementation and the ensuing treatment
that Jardeleza received before the Council. True, Jardeleza has no
vested right to a nomination, but this does not prescind from the
fact that the JBC failed to observe the minimum requirements of
due process.
In criminal and administrative cases, the violation of a party’s right
to due process raises a serious jurisdictional issue which cannot be
glossed over or disregarded at will. Where the denial of the
fundamental right of due process is apparent, a decision rendered in
disregard of that right is void for lack of jurisdiction.52 This rule may
well be applied to the current situation for an opposing view
submits to an undue relaxation of the Bill of Rights. To this, the
Court shall not concede. Asthe branch of government tasked to
guarantee that the protection of due process is available to an
individual in proper cases, the Court finds the subject shortlist as
tainted with a vice that it is assigned to guard against. Indeed, the
invocation of Section 2, Rule 10 of JBC-009 must be deemed to have
never come into operation in light of its erroneous application on
the original ground against Jardeleza’s integrity. At the risk of being
repetitive, the Court upholds the JBC’s discretion in the selection of
nominees, but its application of the "unanimity rule" must be
applied in conjunction with Section 2, Rule 10 of JBC-010 being
invoked by Jardeleza. Having been able to secure four (4) out of six
(6) votes, the only conclusion left to propound is that a majority of
the members of the JBC, nonetheless, found Jardeleza to be
qualified for the position of Associate Justice and this grants him a
rightful spot in the shortlist submitted to the President. Need to
Revisit JBC’s
Internal Rules
In the Court’s study of the petition,the comments and the applicable
rules of the JBC, the Court is of the view that the rules leave much to
be desired and should be reviewed and revised. It appears that the
provision on the "unanimity rule" is vagueand unfair and, therefore,
can be misused or abused resulting in the deprivation of an
applicant’s right to due process.
Primarily, the invocation of the "unanimity rule" on integrity is
effectively a veto power over the collective will of a majority. This
should be clarified. Any assertion by a member aftervoting seems to
be unfair because it effectively gives him or her a veto power over
the collective votes of the other members in view of the unanimous
requirement. While an oppositor-member can recuse himself
orherself, still the probability of annulling the majority vote ofthe
Council is quite high.
Second, integrity as a ground has not been defined. While the initial
impression is that it refers to the moral fiber of a candidate, it can
be, as it has been, used to mean other things. Infact, the minutes of
the JBC meetings n this case reflect the lack of consensus among the
members as to its precise definition. Not having been defined or
described, it is vague, nebulous and confusing. It must be distinctly
specified and delineated.
Third, it should explicitly provide who can invoke it as a ground
against a candidate. Should it be invoked only by an outsider as
construed by the respondent Executive Secretary or also by a
member?

Fourth, while the JBC vetting proceedings is "sui generis" and need
not be formal or trial type, they must meet the minimum
requirements of due process. As always, an applicant should be
given a reasonable opportunity and time to be heard on the charges
against him or her, if there are any.

At any rate, it is up to the JBC to fine-tune the rules considering the

peculiar nature of its function. It need not be stressed that the rules
to be adopted should be fair, reasonable, unambiguous and
consistent with the minimum requirements of due process.

One final note.

The Court disclaims that Jardeleza's inclusion in the shortlist is an

endorsement of his appointment as a member of the Court.1âwphi1
In deference to the Constitution and his wisdom in the exercise of
his appointing power, the President remains the ultimate judge of a
candidate's worthiness.

WHEREFORE, the petition is GRANTED. Accordingly, it is hereby

declared that Solicitor General Francis I-I. Jardeleza is deemed
INCLUDED in the shortlist submitted to the President for
consideration as an Associate Justice of the Supreme Court vice
Associate Justice Roberto A. Abad.

The Court further DIRECTS that the Judicial and Bar Council REVIEW,
and ADOPT, rules relevant to the observance of due process in its
proceedings, particularly JBC-009 and JBC-010, subject to the
approval of the Court.

This Decision is immediately EXECUTORY. Immediately notify the

Office of the President of this Decision.

SO ORDERED.
EN BANC
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf
of the South-South Network (SSN) for Non-State Armed Group
Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE
SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE,
THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer
Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO
UNO (NAFLU-KMU), represented by its National President Joselito V.
Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR
TRADE UNION AND HUMAN RIGHTS, represented by its Executive
Director Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary,
NORBERTO GONZALES, in his capacity as Acting Secretary of
National Defense, HON. RAUL GONZALES, in his capacity as
Secretary of Justice, HON. RONALDO PUNO, in his capacity as
Secretary of the Interior and Local Government, GEN. HERMOGENES
ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR
GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE
BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY,
LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG
PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION
AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY
OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS),
ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG
MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED
TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY
(HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO
LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN
MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO,
COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR.
CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS,
EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE,
Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and
Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA,
DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF
FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence
and investigative elements, AFP CHIEF GEN. HERMOGENES
ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S
RIGHTS, represented herein by Dr. Edelina de la Paz, and
representing the following organizations: HUSTISYA, represented by
Evangeline Hernandez and also on her own behalf; DESAPARECIDOS,
represented by Mary Guy Portajada and also on her own behalf,
SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA
SA AMNESTIYA (SELDA), represented by Donato Continente and also
on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND
PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and
PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr.
Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and
Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA,
DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF
FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence
and investigative elements, AFP CHIEF GEN. HERMOGENES
ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by
Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY
(CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER
SENATORS SERGIO OSMEÑA III and WIGBERTO E. TAÑADA,
Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF
THE ANTI-TERRORISM COUNCIL (ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-
ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-
TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS,
ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA
LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA
TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS),
BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA
REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA
KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT
UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG
KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL POOR
ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO
LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E.
BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and
Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA,
DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY
NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF
FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE
OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY
LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence
and investigative elements, AFP CHIEF GEN. HERMOGENES
ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of
Republic Act No. 9372 (RA 9372), "An Act to Secure the State and
Protect our People from Terrorism," otherwise known as the Human
Security Act of 2007,1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner
Southern Hemisphere Engagement Network, Inc., a non-
government organization, and Atty. Soliman Santos, Jr., a concerned
citizen, taxpayer and lawyer, filed a petition for certiorari and
prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of
Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for
Trade Union and Human Rights (CTUHR), represented by their
respective officers3 who are also bringing the action in their
capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang
Makabayan (BAYAN), General Alliance Binding Women for Reforms,
Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens
for Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng
Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang
Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of
Concerned Teachers (ACT), Migrante, Health Alliance for Democracy
(HEAD), and Agham, represented by their respective officers,4 and
joined by concerned citizens and taxpayers Teofisto Guingona, Jr.,
Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John
Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired
Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-
Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita
Baua and Rey Claro Casambre filed a petition for certiorari and
prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations
Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa
Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Justice and Peace (EMJP), and Promotion of Church People’s
Response (PCPR), which were represented by their respective
officers5 who are also bringing action on their own behalf, filed a
petition for certiorari and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP),
Counsels for the Defense of Liberty (CODAL),6 Senator Ma. Ana
Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada
filed a petition for certiorari and prohibition docketed as G.R. No.
179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other
regional chapters and organizations mostly based in the Southern
Tagalog Region,7 and individuals8 followed suit by filing on
September 19, 2007 a petition for certiorari and prohibition
docketed as G.R. No. 179461 that replicates the allegations raised in
the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-
Terrorism Council9 composed of, at the time of the filing of the
petitions, Executive Secretary Eduardo Ermita as Chairperson,
Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign
Affairs Secretary Alberto Romulo, Acting Defense Secretary and
National Security Adviser Norberto Gonzales, Interior and Local
Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the
IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of
Staff Gen. Hermogenes Esperon and Philippine National Police (PNP)
Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded
President Gloria Macapagal-Arroyo and the support agencies for the
Anti-Terrorism Council like the National Intelligence Coordinating
Agency, National Bureau of Investigation, Bureau of Immigration,
Office of Civil Defense, Intelligence Service of the AFP, Anti-Money
Laundering Center, Philippine Center on Transnational Crime, and
the PNP intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not
exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the
Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is
no appeal, nor any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require. (Emphasis and
underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of
particularity how respondents acted without or in excess of their
respective jurisdictions, or with grave abuse of discretion amounting
to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail
just the same.
In constitutional litigations, the power of judicial review is limited by
four exacting requisites, viz: (a) there must be an actual case or
controversy; (b) petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis
mota of the case.10
In the present case, the dismal absence of the first two requisites,
which are the most essential, renders the discussion of the last two
superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the
outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12
summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and
substantial interest in a case such that the party has sustained or
will sustain direct injury as a result of the governmental act that is
being challenged. The gist of the question on standing is whether a
party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for
illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a
direct and personal interest. It must show not only that the law or
any governmental act is invalid, but also that it sustained or is in
immediate danger of sustaining some direct injury as a result of its
enforcement, and not merely that it suffers thereby in some
indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that
it is about to be subjected to some burdens or penalties by reason
of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional
question, it must show that (1) it has personally suffered some
actual or threatened injury as a result of the allegedly illegal conduct
of the government, (2) the injury is fairly traceable to the challenged
action, and (3) the injury is likely to be redressed by a favorable
action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being
suspected "communist fronts" by the government, especially the
military; whereas individual petitioners invariably invoke the
"transcendental importance" doctrine and their status as citizens
and taxpayers.
While Chavez v. PCGG13 holds that transcendental public
importance dispenses with the requirement that petitioner has
experienced or is in actual danger of suffering direct and personal
injury, cases involving the constitutionality of penal legislation
belong to an altogether different genus of constitutional litigation.
Compelling State and societal interests in the proscription of
harmful conduct, as will later be elucidated, necessitate a closer
judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of
the controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR,
petitioners in G.R. No. 178890, allege that they have been subjected
to "close security surveillance by state security forces," their
members followed by "suspicious persons" and "vehicles with dark
windshields," and their offices monitored by "men with military
build." They likewise claim that they have been branded as
"enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the
Solicitor General (OSG) correctly points out that petitioners have yet
to show any connection between the purported "surveillance" and
the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS,
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham,
petitioner-organizations in G.R. No. 178581, would like the Court to
take judicial notice of respondents’ alleged action of tagging them
as militant organizations fronting for the Communist Party of the
Philippines (CPP) and its armed wing, the National People’s Army
(NPA). The tagging, according to petitioners, is tantamount to the
effects of proscription without following the procedure under the
law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads
the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of
petitioners.
Generally speaking, matters of judicial notice have three material
requisites: (1) the matter must be one of common and general
knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the
limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is
that of notoriety. Hence, it can be said that judicial notice is limited
to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally known within the
territorial jurisdiction of the trial court; or (2) capable of accurate
and ready determination by resorting to sources whose accuracy
cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial
matters coming to the knowledge of men generally in the course of
the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and
unquestioned demonstration. Thus, facts which are universally
known, and which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided, they are of such
universal notoriety and so generally understood that they may be
regarded as forming part of the common knowledge of every
person. As the common knowledge of man ranges far and wide, a
wide variety of particular facts have been judicially noticed as being
matters of common knowledge. But a court cannot take judicial
notice of any fact which, in part, is dependent on the existence or
non-existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of
judicial notice. Petitioners’ apprehension is insufficient to
substantiate their plea. That no specific charge or proscription under
RA 9372 has been filed against them, three years after its effectivity,
belies any claim of imminence of their perceived threat emanating
from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R.
No. 178554, who merely harp as well on their supposed "link" to the
CPP and NPA. They fail to particularize how the implementation of
specific provisions of RA 9372 would result in direct injury to their
organization and members.
While in our jurisdiction there is still no judicially declared terrorist
organization, the United States of America17 (US) and the European
Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf
Group as foreign terrorist organizations. The Court takes note of the
joint statement of Executive Secretary Eduardo Ermita and Justice
Secretary Raul Gonzales that the Arroyo Administration would adopt
the US and EU classification of the CPP and NPA as terrorist
organizations.19 Such statement notwithstanding, there is yet to be
filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under
RA 9372. Again, RA 9372 has been in effect for three years now.
From July 2007 up to the present, petitioner-organizations have
conducted their activities fully and freely without any threat of,
much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by
Party-list Representatives Saturnino Ocampo, Teodoro Casiño,
Rafael Mariano and Luzviminda Ilagan,20 urged the government to
resume peace negotiations with the NDF by removing the
impediments thereto, one of which is the adoption of designation of
the CPP and NPA by the US and EU as foreign terrorist organizations.
Considering the policy statement of the Aquino Administration21 of
resuming peace talks with the NDF, the government is not
imminently disposed to ask for the judicial proscription of the CPP-
NPA consortium and its allied organizations.
More important, there are other parties not before the Court with
direct and specific interests in the questions being raised.22 Of
recent development is the filing of the first case for proscription
under Section 1723 of RA 9372 by the Department of Justice before
the Basilan Regional Trial Court against the Abu Sayyaf Group.24
Petitioner-organizations do not in the least allege any link to the
Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of
a prosecution under RA 9372 by alluding to past rebellion charges
against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion
charges filed in 2006 against then Party-List Representatives Crispin
Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA,
and Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan
Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato
Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement
were petitioner-organizations KMU, BAYAN, GABRIELA,
PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26
The dismissed rebellion charges, however, do not save the day for
petitioners. For one, those charges were filed in 2006, prior to the
enactment of RA 9372, and dismissed by this Court. For another,
rebellion is defined and punished under the Revised Penal Code.
Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it
easier to charge a person with rebellion, its elements not having
been altered.
Conversely, previously filed but dismissed rebellion charges bear no
relation to prospective charges under RA 9372. It cannot be
overemphasized that three years after the enactment of RA 9372,
none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of
locus standi on their sworn duty to uphold the Constitution. The IBP
zeroes in on Section 21 of RA 9372 directing it to render assistance
to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does
not, however, suffice to clothe the IBP or any of its members with
standing.27 The IBP failed to sufficiently demonstrate how its
mandate under the assailed statute revolts against its constitutional
rights and duties. Moreover, both the IBP and CODAL have not
pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have
been the subject of "political surveillance," also lacks locus standi.
Prescinding from the veracity, let alone legal basis, of the claim of
"political surveillance," the Court finds that she has not shown even
the slightest threat of being charged under RA 9372. Similarly
lacking in locus standi are former Senator Wigberto Tañada and
Senator Sergio Osmeña III, who cite their being respectively a
human rights advocate and an oppositor to the passage of RA 9372.
Outside these gratuitous statements, no concrete injury to them has
been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty.
Soliman Santos Jr. in G.R. No. 178552 also conveniently state that
the issues they raise are of transcendental importance, "which must
be settled early" and are of "far-reaching implications," without
mention of any specific provision of RA 9372 under which they have
been charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants with
locus standi. Petitioners must show an actual, or immediate danger
of sustaining, direct injury as a result of the law’s enforcement. To
rule otherwise would be to corrupt the settled doctrine of locus
standi, as every worthy cause is an interest shared by the general
public.
Neither can locus standi be conferred upon individual petitioners as
taxpayers and citizens. A taxpayer suit is proper only when there is
an exercise of the spending or taxing power of Congress,28 whereas
citizen standing must rest on direct and personal interest in the
proceeding.29
RA 9372 is a penal statute and does not even provide for any
appropriation from Congress for its implementation, while none of
the individual petitioner-citizens has alleged any direct and personal
interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by
the assertion of a public right, do not establish locus standi.
Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an
actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.30
(emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that
the power of judicial review is limited to actual cases or
controversies to be exercised after full opportunity of argument by
the parties. Any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to
actualities.
An actual case or controversy means an existing case or controversy
that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an
advisory opinion.32
Information Technology Foundation of the Philippines v.
COMELEC33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The
controversy must be justiciable—definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a
legal right, on the one hand, and a denial thereof on the other hand;
that is, it must concern a real and not merely a theoretical question
or issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon
a hypothetical state of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the
Municipality of Makati into a Highly Urbanized City was held to be
premature as it was tacked on uncertain, contingent events.34
Similarly, a petition that fails to allege that an application for a
license to operate a radio or television station has been denied or
granted by the authorities does not present a justiciable
controversy, and merely wheedles the Court to rule on a
hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v.
Commission on Elections36 for failure to cite any specific affirmative
action of the Commission on Elections to implement the assailed
resolution. It refused, in Abbas v. Commission on Elections,37 to
rule on the religious freedom claim of the therein petitioners based
merely on a perceived potential conflict between the provisions of
the Muslim Code and those of the national law, there being no
actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or
anticipatory grounds goes on ad infinitum.
The Court is not unaware that a reasonable certainty of the
occurrence of a perceived threat to any constitutional interest
suffices to provide a basis for mounting a constitutional challenge.
This, however, is qualified by the requirement that there must be
sufficient facts to enable the Court to intelligently adjudicate the
issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
Project,39 allowed the pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since plaintiffs faced a
"credible threat of prosecution" and "should not be required to
await and undergo a criminal prosecution as the sole means of
seeking relief."40 The plaintiffs therein filed an action before a
federal court to assail the constitutionality of the material support
statute, 18 U.S.C. §2339B (a) (1),41 proscribing the provision of
material support to organizations declared by the Secretary of State
as foreign terrorist organizations. They claimed that they intended
to provide support for the humanitarian and political activities of
two such organizations.
Prevailing American jurisprudence allows an adjudication on the
merits when an anticipatory petition clearly shows that the
challenged prohibition forbids the conduct or activity that a
petitioner seeks to do, as there would then be a justiciable
controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have
failed to show that the challenged provisions of RA 9372 forbid
constitutionally protected conduct or activity that they seek to do.
No demonstrable threat has been established, much less a real and
existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and
supposedly being tagged as "communist fronts" in no way
approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion,
which is not its function.43
Without any justiciable controversy, the petitions have become
pleas for declaratory relief, over which the Court has no original
jurisdiction. Then again, declaratory actions characterized by
"double contingency," where both the activity the petitioners intend
to undertake and the anticipated reaction to it of a public official are
merely theorized, lie beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not
avail to take the present petitions out of the realm of the surreal
and merely imagined. Such possibility is not peculiar to RA 9372
since the exercise of any power granted by law may be abused.45
Allegations of abuse must be anchored on real events before courts
may step in to settle actual controversies involving rights which are
legally demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases,
wherein certain rules of constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly
broad the definition of the crime of terrorism46 under RA 9372 in
that terms like "widespread and extraordinary fear and panic among
the populace" and "coerce the government to give in to an unlawful
demand" are nebulous, leaving law enforcement agencies with no
standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-
for-vagueness and overbreadth find no application in the present
case since these doctrines apply only to free speech cases; and that
RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is
imperative to outline the schools of thought on whether the void-
for-vagueness and overbreadth doctrines are equally applicable
grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the
idea of limiting the application of the two doctrines to free speech
cases. They particularly cite Romualdez v. Hon. Sandiganbayan47
and Estrada v. Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word
"intervene" in Section 549 of the Anti-Graft and Corrupt Practices
Act was intrinsically vague and impermissibly broad. The Court
stated that "the overbreadth and the vagueness doctrines have
special application only to free-speech cases," and are "not
appropriate for testing the validity of penal statutes."50 It added
that, at any rate, the challenged provision, under which the therein
petitioner was charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on
Elections,52 the Court stated that a facial invalidation of criminal
statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness analysis, and concluded that the therein subject election
offense53 under the Voter’s Registration Act of 1996, with which
the therein petitioners were charged, is couched in precise
language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of
Justice Vicente V. Mendoza in the Estrada case, where the Court
found the Anti-Plunder Law (Republic Act No. 7080) clear and free
from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two
doctrines to the concept of a "facial" invalidation as opposed to an
"as-applied" challenge. He basically postulated that allegations that
a penal statute is vague and overbroad do not justify a facial review
of its validity. The pertinent portion of the Concurring Opinion of
Justice Mendoza, which was quoted at length in the main Estrada
decision, reads:
A facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible "chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the
attack demonstrate that his own conduct could not be regulated by
a statute drawn with narrow specificity." The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence,
and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as
in the area of free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that
"claims of facial overbreadth have been entertained in cases
involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative act is
the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid." As for the vagueness doctrine, it is
said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who engages in
some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground
that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional."
As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim
that this Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties
not before the Court whose activities are constitutionally protected.
It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts.
But, as the U.S. Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily
results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed
"sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its
provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the
overbreadth and vagueness doctrines as grounds for a facial or as-
applied challenge against a penal statute (under a claim of violation
of due process of law) or a speech regulation (under a claim of
abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.57 The
overbreadth doctrine, meanwhile, decrees that a governmental
purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.58
As distinguished from the vagueness doctrine, the overbreadth
doctrine assumes that individuals will understand what a statute
prohibits and will accordingly refrain from that behavior, even
though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied"
challenge.
Distinguished from an as-applied challenge which considers only
extant facts affecting real litigants, a facial invalidation is an
examination of the entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the parties, but also on
the assumption or prediction that its very existence may cause
others not before the court to refrain from constitutionally
protected speech or activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring
opinion that the vagueness and overbreadth doctrines, as grounds
for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a criminal
statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified
by the aim to avert the "chilling effect" on protected speech, the
exercise of which should not at all times be abridged.62 As reflected
earlier, this rationale is inapplicable to plain penal statutes that
generally bear an "in terrorem effect" in deterring socially harmful
conduct. In fact, the legislature may even forbid and penalize acts
formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected
rights.63
The Court reiterated that there are "critical limitations by which a
criminal statute may be challenged" and "underscored that an ‘on-
its-face’ invalidation of penal statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free
speech, religious freedom, and other fundamental rights may be
facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial
challenge to a penal statute is permitted, the prosecution of crimes
may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal
statutes, if the same is allowed, would effectively go against the
grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A
facial challenge against a penal statute is, at best, amorphous and
speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test
will impair the State’s ability to deal with crime. If warranted, there
would be nothing that can hinder an accused from defeating the
State’s power to prosecute on a mere showing that, as applied to
third parties, the penal statute is vague or overbroad,
notwithstanding that the law is clear as applied to him.65 (Emphasis
and underscoring supplied)
It is settled, on the other hand, that the application of the
overbreadth doctrine is limited to a facial kind of challenge and,
owing to the given rationale of a facial challenge, applicable only to
free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a
facial type of invalidation in order to plot areas of protected speech,
inevitably almost always under situations not before the court, that
are impermissibly swept by the substantially overbroad regulation.
Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as
applied to the litigants.
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts
to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.66 (Emphasis in
the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the
Court, in at least two cases,67 observed that the US Supreme Court
has not recognized an overbreadth doctrine outside the limited
context of the First Amendment,68 and that claims of facial
overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words.69 In
Virginia v. Hicks,70 it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is
not specifically addressed to speech or speech-related conduct.
Attacks on overly broad statutes are justified by the "transcendent
value to all society of constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as
applied to petitioners, a limited vagueness analysis of the definition
of "terrorism" in RA 9372 is legally impermissible absent an actual or
imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not
preclude the operation of the vagueness test on the Anti-Plunder
Law as applied to the therein petitioner, finding, however, that
there was no basis to review the law "on its face and in its
entirety."72 It stressed that "statutes found vague as a matter of
due process typically are invalidated only 'as applied' to a particular
defendant."73
American jurisprudence74 instructs that "vagueness challenges that
do not involve the First Amendment must be examined in light of
the specific facts of the case at hand and not with regard to the
statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated
defendants’ claims that criminal statutes are unconstitutionally
vague, developing a doctrine hailed as "among the most important
guarantees of liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under
the due process clause has been utilized in examining the
constitutionality of criminal statutes. In at least three cases,76 the
Court brought the doctrine into play in analyzing an ordinance
penalizing the non-payment of municipal tax on fishponds, the
crime of illegal recruitment punishable under Article 132(b) of the
Labor Code, and the vagrancy provision under Article 202 (2) of the
Revised Penal Code. Notably, the petitioners in these three cases,
similar to those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute, unlike in
the present case.
There is no merit in the claim that RA 9372 regulates speech so as to
permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited
Section 3 of RA 9372, the following elements may be culled: (1) the
offender commits an act punishable under any of the cited
provisions of the Revised Penal Code, or under any of the
enumerated special penal laws; (2) the commission of the predicate
crime sows and creates a condition of widespread and extraordinary
fear and panic among the populace; and (3) the offender is actuated
by the desire to coerce the government to give in to an unlawful
demand.
In insisting on a facial challenge on the invocation that the law
penalizes speech, petitioners contend that the element of "unlawful
demand" in the definition of terrorism77 must necessarily be
transmitted through some form of expression protected by the free
speech clause.
The argument does not persuade. What the law seeks to penalize is
conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there
must first be a predicate crime actually committed to trigger the
operation of the key qualifying phrases in the other elements of the
crime, including the coercion of the government to accede to an
"unlawful demand." Given the presence of the first element, any
attempt at singling out or highlighting the communicative
component of the prohibition cannot recategorize the unprotected
conduct into a protected speech.
Petitioners’ notion on the transmission of message is entirely
inaccurate, as it unduly focuses on just one particle of an element of
the crime. Almost every commission of a crime entails some mincing
of words on the part of the offender like in declaring to launch overt
criminal acts against a victim, in haggling on the amount of ransom
or conditions, or in negotiating a deceitful transaction. An analogy in
one U.S. case78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer
to take down a sign reading "White Applicants Only" hardly means
that the law should be analyzed as one regulating speech rather
than conduct.
Utterances not elemental but inevitably incidental to the doing of
the criminal conduct alter neither the intent of the law to punish
socially harmful conduct nor the essence of the whole act as
conduct and not speech. This holds true a fortiori in the present
case where the expression figures only as an inevitable incident of
making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as
in most instances brought about through speaking or writing. But it
has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because the
conduct was, in part, initiated, evidenced, or carried out by means
of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press
would make it practically impossible ever to enforce laws against
agreements in restraint of trade as well as many other agreements
and conspiracies deemed injurious to society.79 (italics and
underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct,
because they merely evidence a prohibited conduct.80 Since speech
is not involved here, the Court cannot heed the call for a facial
analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a
vagueness analysis of the therein subject penal statute as applied to
the therein petitioners inasmuch as they were actually charged with
the pertinent crimes challenged on vagueness grounds. The Court in
said cases, however, found no basis to review the assailed penal
statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the
pre-enforcement review of a criminal statute, challenged on
vagueness grounds, since the therein plaintiffs faced a "credible
threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual
charge nor a credible threat of prosecution under RA 9372. Even a
limited vagueness analysis of the assailed definition of "terrorism" is
thus legally impermissible. The Court reminds litigants that judicial
power neither contemplates speculative counseling on a statute’s
future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.
SECOND DIVISION
G.R. No. 208660 March 5, 2014
PEÑAFRANCIA SUGAR MILL, INC., Petitioner,
vs.
SUGAR REGULATORY ADMINISTRATION, Respondent.
RESOLUTION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the Decision2
dated April 19, 2013 and the Resolution3 dated July 31, 2013 of the
Court of Appeals (CA) in CA-G.R. SP No. 124158 which nullified and
set aside the Orders4 dated November 14, 2011 and February 28,
2012 of the Regional Trial Court (RTC) of Naga City, Branch 24 (Naga
City-RTC), ordered the dismissal of the case a quo on the ground of
forum-shopping, and enjoined the Naga City-RTC from further
proceeding with the trial thereof.
The Facts
Petitioner Pefiafrancia Sugar Mill, Inc. (PENSUMIL), a corporation
duly established and existing under Philippine laws, is engaged in
the business of milling sugar,5 while respondent Sugar Regulatory
Administration (SRA) is a government entity created pursuant to
Executive Order No. 18, series of 19866 (EO 18, s. 1986) which is
tasked to uphold the policy of the State "to promote the growth and
development of the sugar industry through greater and significant
participation of the private sector, and to improve the working
condition of laborers."7
On September 14, 1995, the SRA issued Sugar Order No. 2, s. 1995-
1996.8 The said Sugar Order provided, inter alia, that from
September 11, 1995 until August 31, 2005, a lien of ₱2.00 per LKG-
Bag shall be imposed on all raw sugar quedan-permits, as well as on
any other form of sugar, such as Improved Raw, Washed, Blanco
Directo, Plantation White, or Refined, in order to fund the Philippine
Sugar Research Institute, Inc. (PHILSURIN).9 It also provided that
"[t]he said lien shall be paid by way of Manager’s Checks in the
name of PHILSURIN to be collected by the mill company concerned
upon withdrawal of the physical sugar and remitted to PHILSURIN
not later than fifteen (15) days from receipt thereof."10 Thereafter,
the SRA released two (2) issuances extending the effects of the
aforesaid Sugar Order, namely: (a) Sugar Order No. 8, s. 2004-
200511 which extended the imposition of the lien until August 31,
2010; and (b) Sugar Order No. 11, s. 2009-201012 which extended
such imposition until August 31, 2015 (Assailed Sugar Orders).
Questioning the validity of the Assailed Sugar Orders, PENSUMIL
filed a petition for prohibition and injunction dated May 20, 2011
against the SRA and PHILSURIN before the Naga City-RTC docketed
as Special Civil Case 2011-0061 (Naga Case).13 PENSUMIL alleged
that the Assailed Sugar Orders are unconstitutional in that: (a) they
were issued beyond the powers and authority granted to the SRA by
EO 18, s. 1986; and (b) the amount levied by virtue of the Assailed
Sugar Orders constitutes public funds and thus, cannot be legally
channelled to a private corporation such as PHILSURIN.14
In response, the SRA and PHILSURIN filed their respective motions
to dismiss on the ground of forum-shopping. The SRA alleged that
there is a pending case for declaratory relief in the Quezon City-RTC
docketed as Civil Case Q95-25171 (QC Case) and that the main issue
raised in both the Naga and QC Cases is the validity of the Assailed
Sugar Orders. For its part, PHILSURIN noted the existence of a
pending collection case that it filed against PENSUMIL before the
Makati City-RTC docketed as Civil Case 04-239 (Makati Case). It
contended that the rights asserted and the reliefs prayed for in the
Naga and Makati Cases are founded on the same facts such that a
final judgment in one will constitute res judicata on the other.15
The Naga City-RTC Ruling
In an Order16 dated November 14, 2011, the Naga City-RTC denied
SRA and PHILSURIN’s motions to dismiss. The Naga City-RTC held
that it was PHILSURIN and not PENSUMIL that initiated the Makati
Case and that the latter only raised the validity of the Assailed Sugar
Orders as a defense.17 The Naga City-RTC found that although the
Naga and Makati Cases would require the appreciation of related
facts, their respective resolutions would nevertheless result in
different outcomes, considering that the former is a petition for
prohibition and injunction while the latter is a simple collection
case.18
Both the SRA and PHILSURIN moved for reconsideration but the
same were denied by the Naga City-RTC in an Order19 dated
February 28, 2012. The Naga City-RTC reiterated its finding that
PENSUMIL did not commit forum-shopping. It also held that there is
no identity of parties between the Naga and QC Cases since
PENSUMIL is not a party in the latter case. It explained that the fact
that the QC Case involves the validity of the Assailed Sugar Orders
does not preclude PENSUMIL’s right to institute an action to protect
its own interests against the same.20
Aggrieved, the SRA filed a petition for certiorari before the CA.
Records are bereft of any showing that PHILSURIN elevated the
matter to the CA.
The CA Ruling
In a Decision21 dated April 19, 2013, the CA nullified and set aside
the Orders of the Naga City-RTC and ordered the dismissal of the
case a quo on the ground of forum-shopping. Accordingly, it
enjoined the Naga City- RTC from further proceeding with the trial
of the case.22 Contrary to the Naga City-RTC’s findings, the CA
found that while PENSUMIL is indeed not a party in the QC Case, the
determination of the validity of the Assailed Sugar Orders therein
would nevertheless amount to res judicata in this case.23
Dissatisfied, PENSUMIL moved for reconsideration which was,
however, denied by the CA in a Resolution24 dated July 31, 2013.
Hence, this petition.
The Issue Before the Court
The primordial issue for the Court’s resolution is whether or not
PENSUMIL committed forum-shopping in filing the case a quo.
At this point, the Court deems it worthy to note that on November
4, 2013, and during the pendency of the instant petition, the SRA
has issued Sugar Order No. 5, s. 2013-2014,25 which revoked the
Assailed Sugar Orders. As a result thereof, all mill companies were
directed to cease from collecting the lien of ₱2.00 per LKG-Bag from
all sugar production, effective immediately.26
The Court’s Ruling
The case at bar should be dismissed for having become moot and
academic.1âwphi1
A case or issue is considered moot and academic when it ceases to
present a justiciable controversy by virtue of supervening events, so
that an adjudication of the case or a declaration on the issue would
be of no practical value or use. In such instance, there is no actual
substantial relief which a petitioner would be entitled to, and which
would be negated by the dismissal of the petition. Courts generally
decline jurisdiction over such case or dismiss it on the ground of
mootness.27 This is because the judgment will not serve any useful
purpose or have any practical legal effect because, in the nature of
things, it cannot be enforced.28

In this case, the supervening issuance of Sugar Order No. 5, s. 2013-

2014 which revoked the effectivity of the Assailed Sugar Orders has
mooted the main issue in the case a quo - that is the validity of the
Assailed Sugar Orders. Thus, in view of this circumstance, resolving
the procedural issue on forum-shopping as herein raised would not
afford the parties any substantial relief or have any practical legal
effect on the case.

On the basis of the foregoing, the Court finds it appropriate to

abstain from passing upon the merits of this case where legal relief
is no longer needed nor called for.

WHEREFORE, the petition is DISMISSED for being moot and

academic.

SO ORDERED.
EN BANC
G.R. No. 191017 November 15, 2011
CONSTANCIO F. MENDOZA, Petitioner,
vs.
SENEN C. FAMILARA and COMMISSION ON ELECTIONS,
Respondents.
RESOLUTION
PEREZ, J.:
This petition raises a far from novel issue, i.e., the constitutionality
of Section 21 of Republic Act No. 9164 (entitled "An Act Providing
for Synchronized Barangay and Sangguniang Kabataan Elections,
amending RA No. 7160, as amended, otherwise known as the Local
Government Code of 1991"). As other barangay officials had done in
previous cases,2 petitioner Constancio F. Mendoza (Mendoza)
likewise questions the retroactive application of the three-
consecutive term limit imposed on barangay elective officials
beginning from the 1994 barangay elections.
We here have a special civil action, designated by Mendoza as a
"petition for review on certiorari under Rule 64 in relation to Rule 65
of the Rules of Court," seeking to annul and set aside the
Resolution3 of the Commission on Elections (COMELEC) En Banc.
Mendoza was a candidate for Barangay Captain of Barangay
Balatasan, Oriental Mindoro in the 29 October 2007 Barangay
Elections. As required by law, Mendoza filed a certificate of
candidacy. Prior thereto, Mendoza had been elected as Barangay
Captain of Barangay Balatasan for three (3) consecutive terms, on 9
May 1994, 12 May 1997 and 15 July 2002.
On 26 October 2007, respondent Senen C. Familara (Familara) filed
a Petition to Disqualify Mendoza averring that Mendoza, under
Section 2 of RA No. 9164, is ineligible to run again for Barangay
Captain of Barangay Balatasan, having been elected and having
served, in the same position for three (3) consecutive terms
immediately prior to the 2007 Barangay Elections.
Posthaste, Mendoza filed his Answer4 refuting Familara’s
allegations and asseverating the following:
1. That he has the qualifications and none of the disqualification to
vote and be voted for in the October 29, 2007 Barangay Elections
for Barangay Balatasan, Bulalacao, Oriental Mindoro;
2. [He] further AFFIRMS that he has duly-filed his Certificate of
Candidacy for Punong Barangay of Barangay Balatasan, Bulalacao,
Oriental Mindoro;
3. [He] RAISES THE QUESTION of the legal personality of
[respondent Senen] Familara because:
a. He is not a party in interest in the Barangay Elections for Punong
Barangay at Barangay Balatasan;
b. He is not a resident nor registered voter of Barangay Balatasan;
c. He is not a candidate to any elective position for Barangay
Balatasan in the scheduled October 29, 2007 Barangay Elections;
4. That while the proper party in interest to file a petition for
disqualification is any registered voter of Barangay Balatasan, the
instant petition is intended to benefit the only other candidate for
Punong Barangay for Balatasan in the forthcoming elections, TOMAS
PAJANEL, but said person is a permanent resident not only of a
Barangay different from Barangay Balatasan but worse, said person
is a permanent resident of Bulalacao’s adjoining town, Mansalay;
xxx
6. The petition suffers from legal infirmities;
xxx
The present petition is premature. It should be filed within ten (10)
days from proclamation of election results.
Further, [Senen] Familara is not a proper party to file the petition. It
must be filed by a candidate who has duly filed a certificate of
candidacy and has been voted for the same office.
Finally, the petition was filed before the wrong forum. It must be
filed before the Municipal Trial Court. The COMELEC has the
exclusive appellate jurisdiction over all contests x x x involving
elective barangay officials decided by trial courts of limited
jurisdiction.
On 13 November 2007, the Commission on Elections (COMELEC)
Assistant Regional Election Director of Region IV, Atty. Jocelyn V.
Postrado, issued a Resolution5 recommending that necessary action
be filed against Mendoza for misrepresenting himself as a qualified
candidate for the position of Barangay Captain of Balatasan:
RESOLUTION/RECOMMENDATION
Pursuant to the delegated authority vested to the undersigned by
the Omnibus Election Law and other election laws and after issuing
the necessary summons to MR. CONSTANCIO F. MENDOZA on the
above Petition for Disqualification filed by Mr. Senen C, Familara,
which to no avail this office until now has not yet received the
required affidavits from Mr. Mendoza, and wherein by said act and
under our COMELEC Rules of Procedure, he is deemed to have
expressly waived his right to present evidence in his defense. xxx
Ruling on the submitted petition and supporting evidence, we find
Mr. Mendoza to have completed the three (3) term-limit and yet,
still ran for office knowing that he was prohibited. Please find a copy
of the Certification issued by the Office of the Election Officer,
Bulalacao, Oriental Mindoro verifying that Mr. Mendoza filed a
Certificate of Candidacy for the position of Punong Barangay. His act
of misrepresenting himself as qualified to run for the said position of
Punong Barangay at Balatasan, Municipality of Bulalacao, Province
of Oriental Mindoro in the 29 October 2007 Barangay Elections, is in
violation of Section 2 of Republic Act No. 9164, the Omnibus
election Law and other election laws.
WHEREFORE, premises considered, the undersigned hereby
recommends that necessary action be filed against MR.
CONSTANCIO F. MENDOZA.
Undaunted, Mendoza filed a flurry of motions: (1) an Ex-Parte
Motion to Recall;6 (2) Ex-Parte Motion to Dismiss;7 and (3) Ex-Parte
Motion to Resolve,8 all aiming to forestall the implementation of
the 13 November 2007 Resolution of the COMELEC Assistant
Regional Election Director of Region IV, Atty. Postrado, and the
continuation of the Petition for Disqualification filed by Familara
against Mendoza.
In another turn of events, Mendoza won in the elections; he was
proclaimed Barangay Captain of Balatasan.
Consequently, Mendoza’s rival, Thomas Pajanel, filed a petition for
quo warranto and mandamus against Mendoza before the
Municipal Circuit Trial Court (MCTC) of Mansalay-Bulalacao
docketed as Election Case No. 407-B. Pajanel contended that
Mendoza is ineligible to occupy the position of Barangay Captain of
Balatasan, having been elected and having already served as such
for three (3) consecutive terms.
In yet another setback, the MCTC promulgated its Decision and
disqualified Mendoza in accordance with the three-consecutive
term rule provided in Section 2 of RA No. 9164. Not unexpectedly,
Mendoza appealed the MCTC Decision before the COMELEC. The
appeal is docketed as EAC (BRGY) No. 101-2008 and is pending
before the COMELEC Second Division.
On the other litigation front concerning the Petition for
Disqualification filed by Familara against Mendoza, the COMELEC
First Division issued a Resolution9 agreeing with the
recommendation of the COMELEC Assistant Regional Election
Director of Region IV that Mendoza is disqualified from running as
Barangay Captain of Balatasan under the three-consecutive term
limit rule. The COMELEC shot down Mendoza’s technical objections
to the Petition for Disqualification, to wit:
[Mendoza’s] contentions that the petition [for disqualification]
should be dismissed as [Familara] lacks the personality to file the
said petition since the latter is neither a candidate nor a registered
voter of Barangay Balatasan, Municipality of Bulalacao, that it was
prematurely filed and was filed before a wrong forum are
untenable.
It is undisputed that the instant case is a Petition for Disqualification
involving barangay officials, hence, Section 11 in relation to Section
10 of COMELEC Resolution No. 8297 issued on September 6, 2007 is
the applicable rule with respect to the qualifications of [Mendoza],
period of filing and the tribunal to file the same.
Section 11 in relation to Section 10 of COMELEC Resolution No. 8297
provides that:
Sec. 10. Petition to deny due course to or cancellation of a
certificate of candidacy. – A verified petition to deny due course to
or cancel a certificate of candidacy pursuant to Sec. 69 (nuisance
candidate) or Sec. 78 (material misrepresentation in the certificate
of candidacy) of the Omnibus Election Code shall be filed directly
with the office of Provincial Election Supervisor concerned by any
registered candidate for the same office personally or through a
duly-authorized representative within five (5) days from the last day
for filing of certificate of candidacy. In the National Capital Region,
the same be filed directly with the Office of the Regional Election
Director.
In the Provinces where the designated Provincial Election Supervisor
is not a lawyer the petition shall be filed with the Regional Election
Director concerned.
Filing by mail is not allowed.
Within twenty four (24) hours from receipt of the petition, the
Provincial Election Supervisor or the Regional Election Director of
the National Capital Region, as the case may be, shall issue the
corresponding summons requiring the respondent candidate to
answer the petition within three (3) days from receipt. Immediately
upon receipt of the answer, the petition shall be set for hearing for
the reception of evidence of the parties but not later than five (5)
days from the service of summons. The Resolution of the Hearing
Officer shall be submitted to the Commission through the Clerk of
the Commission within fifteen (15) days from receipt of the petition.
Sec. 11. Petition for Disqualification. – A verified petition to
disqualify a candidate on the ground of ineligibility or under Section
68 of the Omnibus Election Code may be filed at anytime before
proclamation of the winning candidate by any registered voter or
any candidate for the same office. The procedure prescribed in the
preceding section shall be applicable herein.
xxx
All disqualification cases filed on the ground of ineligibility shall
continue although the candidate has already been proclaimed.
Applying the above-cited provisions in the case at bar, it only
requires the petitioner to be a registered voter for him to acquire
locus standi to file the instant petition. Further, it provides that a
petition for disqualification must be filed at any time before the
proclamation of the winning candidate. Furthermore, it also
requires that the said petition must be filed with the Provincial
Election Supervisor or Regional Election Director, as the case may
be. It is clear that in the present case these requirements under the
above-cited provisions of the law have been complied.
WHEREFORE, in view of the foregoing, the Commission (First
Division) GRANTS the Petition. [Petitioner], Constancio Farol
Mendoza, having already served as Punong Barangay of Barangay
Balatasan, Bulalacao, Oriental Mindoro for three consecutive terms
is hereby DISQUALIFIED from being a candidate for the same office
in the October 29, 2007 Synchronized Barangay and Sangguniang
Kabataan Elections. Considering that [Mendoza] had already been
proclaimed, said proclamation is hereby ANNULLED. Succession to
said office shall be governed by the provisions of Section 44 of the
Local Government Code.10
Mendoza filed a Motion to Recall Resolution, to Dismiss the Case
and to Conduct Appropriate Investigation to Determine Criminal and
Administrative Liability11 before the COMELEC En Banc, seeking the
reversal of the Resolution of the COMELEC First Division.
In a Resolution12 dated 23 December 2009, the COMELEC En Banc
denied the Motion to Recall for lack of merit. It dismissed
Mendoza’s arguments, thus:
It appears from Section 10 of Resolution No. 8297 that the
[COMELEC] has indeed jurisdiction to entertain this petition in the
first place. The petition was filed on September 23, 2007, or less
than five days from the last day of filing the certificates of candidacy
for the position of Punong Barangay. The assistant Regional Director
proceeded to issue subpoena, and thereafter, submitted her
Resolution/Recommendation which was forwarded to the
[COMELEC] for appropriate action through the Clerk of the
[COMELEC].
The records of the case would reveal that this petition has run its
normal course. The allegation of Mendoza that he was allegedly
deprived of due process is of no avail. It appears from the registry
return receipt attached to the records of the case that summons
were duly received by Mendoza on October 24, 2007, as such, he is
bound to answer the allegations of the petition within three days
from receipt. Failing in this respect, Mendoza is said to have waived
his right to file his answer within the time given by the Rules.
Furthermore, we cannot subscribe to the argument of Mendoza that
the pendency of the proceedings before the Second Division
docketed as EAC (Brgy) 101-2008 would merit the dismissal of this
petition.
xxx
The Supreme Court held in the case of Sunga vs. COMELEC, and
Lonzanida v. COMELEC, that:
"This court has held that the clear legislative intent is that the
COMELEC should continue the trial and hearing of the
disqualification case to its conclusion, i.e., until judgment is
rendered. The outright dismissal of the petition for disqualification
filed before the election but which remained unresolved after the
proclamation of the candidate sought to be disqualified will unduly
reward the said candidate and may encourage him to employ
delaying tactics to impede the resolution of the petition until after
he has been proclaimed."
Considering that [the COMELEC] is tasked with the duty to continue
with the trial and hearing of the disqualification case of Mendoza to
its conclusion despite the pendency of EAC (Brgy) No. 101-2008,
then there is no cogent reason to disturb the Resolution of the First
Division dated September 18, 2008.13
Unperturbed, Mendoza filed the instant petition alleging grave
abuse of discretion in the 23 December 2009 Resolution of the
COMELEC En Banc. Mendoza insists that the disqualification case
should have been dismissed, or, at the least, consolidated with the
quo warranto case on appeal before the COMELEC Second Division
because the latter case stems from a judicial proceeding which
"followed strictly the requirements of law and the rules." Mendoza
then blithely puts in issue the constitutionality of the retroactive
application to the 1994 Barangay Elections of the three-consecutive
term limit rule. For good measure, Mendoza asserts denial of due
process as would invalidate the disqualification proceedings against
him and his resulting disqualification from the race for Barangay
Captain of Balatasan.
The jettisoning of the petition is inevitable: the holding of the
October 2010 Barangay Elections makes the issues posed by
petitioner moot and academic.
Before anything else, we note the apparent mix-up in Mendoza’s
designation of the present petition. He alleged grave abuse of
discretion, but incorrectly specified in the prefatory statement of
the petition that it is a "petition for review on certiorari."
For clarity and to obviate confusion, we treat the instant petition as
one filed under Rule 64 in relation to Rule 65 of the Rules of Court
since the totality of the allegations contained therein seek to annul
and set aside the Resolution of the COMELEC en banc because it is
tainted with grave abuse of discretion amounting to lack or excess
of jurisdiction. As we have also noted in Mendoza v. Mayor Villas,14
another case filed by Mendoza before us where Mendoza did not
specify under which Rule (45 or 65) his petition was being filed, this
Court has the discretion to determine whether a petition was filed
under Rule 45 or 65 of the Rules of Court.
Even without going into Mendoza’s penchant for filing confused
petitions, the supervening event that is the conduct of the 2010
Barangay Elections renders this case moot and academic. The term
of office for Barangay Captain of Balatasan for the 2007 Barangay
Elections had long expired in 2010 following the last elections held
on October 25 of the same year.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration
thereon would be of no practical value. As a rule, courts decline
jurisdiction over such case, or dismiss it on ground of mootness.15
Certainly, the rule is not set in stone and permits exceptions. Thus,
we may choose to decide cases otherwise moot and academic if:
first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public
interest involved; third, the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar and
the public; or fourth, the case is capable of repetition yet evasive of
review.16 None of the foregoing exceptions calling for this Court to
exercise jurisdiction obtains in this instance.
The justiciability of the present petition is further decimated by our
recent ruling in Mendoza v. Mayor Villas:17
With the conduct of the 2010 barangay elections, a supervening
event has transpired that has rendered this case moot and academic
and subject to dismissal. This is because, as stated in Fernandez v.
Commission on Elections, "whatever judgment is reached, the same
can no longer have any practical legal effect or, in the nature of
things, can no longer be enforced." Mendoza's term of office has
expired with the conduct of last year's local elections. As such,
Special Civil Action No. 08-10, where the assailed Orders were
issued, can no longer prosper. Mendoza no longer has any legal
standing to further pursue the case, rendering the instant petition
moot and academic. (emphasis supplied)
In any event, upon a perusal of the merits or lack thereof, the
petition is clearly dismissible.
Our decision in COMELEC v. Cruz18 settles, once and for all, the
constitutionality of the three-consecutive term limit rule reckoned
from the 1994 Barangay Elections. We unequivocally declared, thus:
The Retroactive Application Issue
xxx
Our first point of disagreement with the respondents and with the
RTC is on their position that a retroactive application of the term
limitation was made under RA No. 9164. Our own reading shows
that no retroactive application was made because the three-term
limit has been there all along as early as the second barangay law
(RA No. 6679) after the 1987 Constitution took effect; it was
continued under the [Local Government Code] and can still be found
in the current law. We find this obvious from a reading of the
historical development of the law.
The first law that provided a term limitation for barangay officials
was RA No. 6653 (1988); it imposed a two-consecutive term limit.
After only six months, Congress, under RA No. 6679 (1988), changed
the two-term limit by providing for a three-consecutive term limit.
This consistent imposition of the term limit gives no hint of any
equivocation in the congressional intent to provide a term
limitation. Thereafter, RA No. 7160 - the LGC - followed, bringing
with it the issue of whether it provided, as originally worded, for a
three-term limit for barangay officials. We differ with the RTC
analysis of this issue.
 WHEREFORE, premises considered, the petition is hereby
Section 43 is a provision under Title II of the LGC on Elective DISMISSED. The COMELEC Resolutions dated 18 September 2008
Officials. Title II is divided into several chapters dealing with a wide and 23 December 2009 in SPA (Brgy.) 07-243 are AFFIRMED.
range of subject matters, all relating to local elective officials, as
follows: a. Qualifications and Election (Chapter I); b. Vacancies and SO ORDERED.
Succession (Chapter II); c. Disciplinary Actions (Chapter IV) and d.
Recall (Chapter V). Title II likewise contains a chapter on Local
Legislation (Chapter III).

These Title II provisions are intended to apply to all local elective

officials, unless the contrary is clearly provided. A contrary
application is provided with respect to the length of the term of
office under Section 43(a); while it applies to all local elective
officials, it does not apply to barangay officials whose length of term
is specifically provided by Section 43(c). In contrast to this clear case
of an exception to a general rule, the three-term limit under Section
43(b) does not contain any exception; it applies to all local elective
officials who must perforce include barangay officials.1âwphi1

An alternative perspective is to view [Section] 43(a), (b) and (c)

separately from one another as independently standing and self-
contained provisions, except to the extent that they expressly relate
to one another. Thus, [Section] 43(a) relates to the term of local
elective officials, except barangay officials whose term of office is
separately provided under Sec. 43(c). [Section] 43(b), by its express
terms, relates to all local elective officials without any exception.
Thus, the term limitation applies to all local elective officials without
any exclusion or qualification.

Either perspective, both of which speak of the same resulting

interpretation, is the correct legal import of Section 43 in the
context in which it is found in Title II of the LGC.

xxx

All these inevitably lead to the conclusion that the challenged

proviso has been there all along and does not simply retroact the
application of the three-term limit to the barangay elections of
1994. Congress merely integrated the past statutory changes into a
seamless whole by coming up with the challenged proviso.

With this conclusion, the respondents’ constitutional challenge to

the proviso—based on retroactivity—must fail.19
EN BANC
G.R. No. 118910 July 17, 1995
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A.
RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO,
EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE,
CHRISTINE TAN, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE
CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN.
WIGBERTO TAÑADA, REP. JOKER P. ARROYO, petitioners,
vs.
MANUEL L. MORATO, in his capacity as Chairman of the Philippine
Charity Sweepstakes Office, and the PHILIPPINE GAMING
MANAGEMENT CORPORATION, respondents.
MENDOZA, J.:
As a result of our decision in G.R. No. 113375 (Kilosbayan,
Incorporated v. Guingona, 232 SCRA 110 (1994)) invalidating the
Contract of Lease between the Philippine Charity Sweepstakes
Office (PCSO) and the Philippine Gaming Management Corp. (PGMC)
on the ground that it had been made in violation of the charter of
the PCSO, the parties entered into negotiations for a new
agreement that would be "consistent with the latter's [PCSO]
charter . . . and conformable to this Honorable Court's aforesaid
Decision."
On January 25, 1995, the parties signed an Equipment Lease
Agreement (hereafter called ELA) whereby the PGMC leased on-line
lottery equipment and accessories to the PCSO in consideration of a
rental equivalent to 4.3% of the gross amount of ticket sales derived
by the PCSO from the operation of the lottery which in no case shall
be less than an annual rental computed at P35,000.00 per terminal
in commercial operation. The rental is to be computed and paid bi-
weekly. In the event the bi-weekly rentals in any year fall short of
the annual minimum fixed rental thus computed, the PCSO agrees
to pay the deficiency out of the proceeds of its current ticket sales.
(Pars. 1-2)
Under the law, 30% of the net receipts from the sale of tickets is
allotted to charity. (R.A. No. 1169, §6 (B))
The term of the lease is eight (8) years, commencing from the start
of commercial operation of the lottery equipment first delivered to
the lessee pursuant to the agreed schedule. (Par. 3)
In the operation of the lottery, the PCSO is to employ its own
personnel. (Par. 5) It is responsible for the loss of, or damage to, the
equipment arising from any cause and for the cost of their
maintenance and repair. (Pars. 7-8)
Upon the expiration of the lease, the PCSO has the option to
purchase the equipment for the sum of P25 million.
A copy of the ELA was submitted to the Court by the PGMC in
accordance with its manifestation in the prior case.
On February 21, 1995 this suit was filed seeking to declare the ELA
invalid on the ground that it is substantially the same as the
Contract of Lease nullified in the first case. Petitioners argue:
1. THE AMENDED ELA IS NULL AND VOID SINCE IT IS
BASICALLY OR SUBSTANTIALLY THE SAME AS OR SIMILAR TO THE
OLD LEASE CONTRACT AS REPRESENTED AND ADMITTED BY
RESPONDENTS PGMC AND PCSO.
2. ASSUMING ARGUENDO, THAT THE AMENDED ELA IS
MATERIALLY DIFFERENT FROM THE OLD LEASE CONTRACT, THE
AMENDED ELA IS NEVERTHELESS NULL AND VOID FOR BEING
INCONSISTENT WITH AND VIOLATIVE OF PCSO'S CHARTER AND THE
DECISION OF THIS HONORABLE COURT OF MAY 5, 1995.
3. THE AMENDED EQUIPMENT LEASE AGREEMENT IS NULL
AND VOID FOR BEING VIOLATIVE OF THE LAW ON PUBLIC BIDDING
OF CONTRACTS FOR FURNISHING SUPPLIES, MATERIALS AND
EQUIPMENT TO THE GOVERNMENT, PARTICULARLY E.O. NO. 301
DATED 26 JULY 1987 AND E.O. NO. 298 DATED 12 AUGUST 1940 AS
AMENDED, AS WELL AS THE "RULES AND REGULATIONS FOR THE
PREVENTION OF IRREGULAR, UNNECESSARY, EXCESSIVE OR
EXTRAVAGANT (IUEE) EXPENDITURES PROMULGATED UNDER
COMMISSION ON AUDIT CIRCULAR NO. 85-55-A DATED SEPTEMBER
8, 1985, CONSIDERING THAT IT WAS AWARDED AND EXECUTED
WITHOUT THE PUBLIC BIDDING REQUIRED UNDER SAID LAWS AND
COA RULES AND REGULATIONS, IT HAS NOT BEEN APPROVED BY
THE PRESIDENT OF THE PHILIPPINES, AND IT IS NOT MOST
ADVANTAGEOUS TO THE GOVERNMENT.
4. THE ELA IS VIOLATIVE OF SECTION 2(2), ARTICLE IX-D OF
THE 1987 CONSTITUTION IN RELATION TO COA CIRCULAR NO. 85-
55-A.
The PCSO and PGMC filed separate comments in which they
question the petitioners' standing to bring this suit. They maintain
(1) that the ELA is a different lease contract with none of the
vestiges of a joint venture which were found in the Contract of
Lease nullified in the prior case; (2) that the ELA did not have to be
submitted to a public bidding because it fell within the exception
provided in E.O. No. 301, §1 (e); (3) that the power to determine
whether the ELA is advantageous to the government is vested in the
Board of Directors of the PCSO; (4) that for lack of funds the PCSO
cannot purchase its own on-line lottery equipment and has had to
enter into a lease contract; (5) that what petitioners are actually
seeking in this suit is to further their moral crusade and political
agenda, using the Court as their forum.
For reasons set forth below, we hold that petitioners have no cause
against respondents and therefore their petition should be
dismissed.
I. PETITIONERS' STANDING
The Kilosbayan, Inc. is an organization described in its petition as
"composed of civic-spirited citizens, pastors, priests, nuns and lay
leaders who are committed to the cause of truth, justice, and
national renewal." Its trustees are also suing in their individual and
collective capacities as "taxpayers and concerned citizens." The
other petitioners (Sen. Freddie Webb, Sen. Wigberto Tañada and
Rep. Joker P. Arroyo) are members of Congress suing as such and as
"taxpayers and concerned citizens."
Respondents question the right of petitioners to bring this suit on
the ground that, not being parties to the contract of lease which
they seek to nullify, they have no personal and substantial interest
likely to be injured by the enforcement of the contract. Petitioners
on the other hand contend that the ruling in the previous case
sustaining their standing to challenge the validity of the first
contract for the operation of lottery is now the "law of the case"
and therefore the question of their standing can no longer be
reopened.
Neither the doctrine of stare decisis nor that of "law of the case,"
nor that of conclusiveness of judgment poses a barrier to a
determination of petitioners' right to maintain this suit.
Stare decisis is usually the wise policy. But in this case, concern for
stability in decisional law does not call for adherence to what has
recently been laid down as the rule. The previous ruling sustaining
petitioners' intervention may itself be considered a departure from
settled rulings on "real parties in interest" because no constitutional
issues were actually involved. Just five years before that ruling this
Court had denied standing to a party who, in questioning the validity
of another form of lottery, claimed the right to sue in the capacity of
taxpayer, citizen and member of the Bar. (Valmonte v. Philippine
Charity Sweepstakes, G.R. No. 78716, Sept. 22, 1987) Only recently
this Court held that members of Congress have standing to question
the validity of presidential veto on the ground that, if true, the
illegality of the veto would impair their prerogatives as members of
Congress. Conversely if the complaint is not grounded on the
impairment of the powers of Congress, legislators do not have
standing to question the validity of any law or official action.
(Philippine Constitution Association v. Enriquez, 235 SCRA 506
(1994)).
There is an additional reason for a reexamination of the ruling on
standing. The voting on petitioners' standing in the previous case
was a narrow one, with seven (7) members sustaining petitioners'
standing and six (6) denying petitioners' right to bring the suit. The
majority was thus a tenuous one that is not likely to be maintained
in any subsequent litigation. In addition, there have been changes in
the membership of the Court, with the retirement of Justices Cruz
and Bidin and the appointment of the writer of this opinion and
Justice Francisco. Given this fact it is hardly tenable to insist on the
maintenance of the ruling as to petitioners' standing.
Petitioners argue that inquiry into their right to bring this suit is
barred by the doctrine of "law of the case." We do not think this
doctrine is applicable considering the fact that while this case is a
sequel to G.R. No. 113375, it is not its continuation. The doctrine
applies only when a case is before a court a second time after a
ruling by an appellate court. Thus in People v. Pinuila, 103 Phil. 992,
999 (1958), it was stated:
"Law of the case" has been defined as the opinion delivered on a
former appeal. More specifically, it means that whatever is once
irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the law
of the case, whether correct on general principles or not, so long as
the facts on which such decision was predicated continue to be the
facts of the case before the court. (21 C. J. S. 330)
It may be stated as a rule of general application that, where the
evidence on a second or succeeding appeal is substantially the same
as that on the first or preceding appeal, all matters, questions,
points, or issues adjudicated on the prior appeal are the law of the
case on all subsequent appeals and will not be considered or
readjudicated therein. (5 C. J. S. 1267)
In accordance with the general rule stated in Section 1821, where,
after a definite determination, the court has remanded the cause
for further action below, it will refuse to examine question other
than those arising subsequently to such determination and remand,
or other than the propriety of the compliance with its mandate; and
if the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on
a second appeal . . . .
As a general rule a decision on a prior appeal of the same case is
held to be the law of the case whether that decision is right or
wrong, the remedy of the party deeming himself aggrieved being to
seek a rehearing. (5 C. J. S. 1276-77).
Questions "necessarily involved in the decision on a former appeal
will be regarded as the law of the case on a subsequent appeal,
although the questions are not expressly treated in the opinion of
the court, as the presumption is that all the facts in the case bearing
on the point decided have received due consideration whether all or
none of them are mentioned in the opinion. (5 C. J. S. 1286-87).
As this Court explained in another case, "The law of the case, as
applied to a former decision of an appellate court, merely expresses
the practice of the courts in refusing to reopen what has been
decided. It differs from res judicata in that the conclusiveness of the
first judgment is not dependent upon its finality. The first judgment
is generally, if not universally, not final. It relates entirely to
questions of law, and is confined in its operation to subsequent
proceedings in the same case. . . ." (Municipality of Daet v. Court of
Appeals, 93 SCRA 503, 521 (1979)
It follows that since the present case is not the same one litigated by
the parties before in G.R. No. 113375, the ruling there cannot in any
sense be regarded as "the law of this case." The parties are the
same but the cases are not.
Nor is inquiry into petitioners' right to maintain this suit foreclosed
by the related doctrine of "conclusiveness of judgment."1 According
to the doctrine, an issue actually and directly passed upon and
determined in a former suit cannot again be drawn in question in
any future action between the same parties involving a different
cause of action. (Peñalosa v. Tuason, 22 Phil. 303, 313 (1912); Heirs
of Roxas v. Galido, 108 Phil. 582 (1960))
It has been held that the rule on conclusiveness of judgment or
preclusion of issues or collateral estoppel does not apply to issues of
law, at least when substantially unrelated claims are involved.
(Montana v. United States, 440 U.S. 147, 162, 59 L.Ed. 2d 210, 222
(1979); BATOR, MELTZER, MISHKIN AND SHAPIRO, THE FEDERAL
COURTS AND THE FEDERAL SYSTEM 1058, n. 2 (3rd Ed., 1988))
Following this ruling it was held in Commissioner v. Sunnen, 333 U.S.
591, 92 L.Ed. 898 (1947) that where a taxpayer assigned to his wife
his interest in a patent in 1928 and in a suit it was determined that
money paid to his wife for the years 1929-1931 under the 1928
assignment was not part of his taxable income, this determination is
not preclusive in a second action for collection of taxes on amounts
paid to his wife under another deed of assignment for other years
(1937 to 1941). For income tax purposes what is decided with
respect to one contract is not conclusive as to any other contract
which was not then in issue, however similar or identical it may be.
The rule on collateral estoppel, it was held, "must be confined to
situations where the matter raised in the second suit is identical in
all respects with that decided in the first proceeding and where the
controlling facts and applicable legal rules remain unchanged." (333
U.S. at 599-600, 92 L.Ed. at 907) Consequently, "if the relevant facts
in the two cases are separate, even though they be similar or
identical, collateral estoppel does not govern the legal issues which
occur in the second case. Thus the second proceeding may involve
an instrument or transaction identical with, but in a form separable
from, the one dealt with in the first proceeding. In that situation a
court is free in the second proceeding to make an independent
examination of the legal matters at issue. . . ." (333 U.S. at 601, 92
L.Ed at 908)
This exception to the General Rule of Issue Preclusion is
authoritatively formulated in Restatement of the Law 2d, on
Judgments, as follows:
§28. Although an issue is actually litigated and determined by a
valid and final judgment, and the determination is essential to the
judgment, relitigation of the issue in a subsequent action between
the parties is not precluded in the following circumstances:
xxx xxx xxx
(2) The issue is one of law and (a) the two actions involve
claims that are substantially unrelated, or (b) a new determination is
warranted in order to take account of an intervening change in the
applicable legal context or otherwise to avoid inequitable
administration of the laws; . . .
Illustration:
xxx xxx xxx
2. A brings an action against the municipality of B for tortious
injury. The court sustains B's defense of sovereign immunity and
dismisses the action. Several years later A brings a second action
against B for an unrelated tortious injury occurring after the
dismissal. The judgment in the first action is not conclusive on the
question whether the defense of sovereign immunity is available to
B. Note: The doctrine of stare decisis may lead the court to refuse to
reconsider the question of sovereign immunity. See §29, Comment i.
The question whether petitioners have standing to question the
Equipment Lease Agreement or ELA is a legal question. As will
presently be shown, the ELA, which petitioners seek to declare
invalid in this proceeding, is essentially different from the 1993
Contract of Lease entered into by the PCSO with the PGMC. Hence
the determination in the prior case (G.R. No. 113375) that
petitioners had standing to challenge the validity of the 1993
Contract of Lease of the parties does not preclude determination of
their standing in the present suit.
Not only is petitioners' standing a legal issue that may be
determined again in this case. It is, strictly speaking, not even the
issue in this case, since standing is a concept in constitutional law
and here no constitutional question is actually involved. The issue in
this case is whether petitioners are the "real parties in interest"
within the meaning of Rule 3, §2 of the Rules of Court which
requires that "Every action must be prosecuted and defended in the
name of the real party in interest."
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important to note .
. . that standing because of its constitutional and public policy
underpinnings, is very different from questions relating to whether a
particular plaintiff is the real party in interest or has capacity to sue.
Although all three requirements are directed towards ensuring that
only certain parties can maintain an action, standing restrictions
require a partial consideration of the merits, as well as broader
policy concerns relating to the proper role of the judiciary in certain
areas. (FRIEDENTHAL, KANE AND MILLER, CIVIL PROCEDURE 328
(1985))
Standing is a special concern in constitutional law because in some
cases suits are brought not by parties who have been personally
injured by the operation of a law or by official action taken, but by
concerned citizens, taxpayers or voters who actually sue in the
public interest. Hence the question in standing is whether such
parties have "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions." (Baker v. Carr,
369 U.S. 186, 7 L.Ed. 2d 633 (1962))
Accordingly, in Valmonte v. Philippine Charity Sweepstakes Office,
G.R. No. 78716, Sept. 22, 1987, standing was denied to a petitioner
who sought to declare a form of lottery known as Instant
Sweepstakes invalid because, as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of
three (3) minor children. But nowhere in his petition does petitioner
claim that his rights and privileges as a lawyer or citizen have been
directly and personally injured by the operation of the Instant
Sweepstakes. The interest of the person assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law is invalid, but also that he has
sustained or is in immediate danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the person
complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be
subjected to some burdens or penalties by reason of the statute
complained of.
We apprehend no difference between the petitioner in Valmonte
and the present petitioners. Petitioners do not in fact show what
particularized interest they have for bringing this suit. It does not
detract from the high regard for petitioners as civic leaders to say
that their interest falls short of that required to maintain an action
under Rule 3, §2.
It is true that the present action involves not a mere contract
between private individuals but one made by a government
corporation. There is, however, no allegation that public funds are
being misspent so as to make this action a public one and justify
relaxation of the requirement that an action must be prosecuted in
the name of the real party in interest. (Valmonte v. PCSO, supra;
Bugnay Const. and Dev. Corp. v. Laron, 176 SCRA 240 (1989))
On the other hand, the question as to "real party in interest" is
whether he is "the party who would be benefitted or injured by the
judgment, or the 'party entitled to the avails of the suit.'" (Salonga v.
Warner Barnes & Co., Ltd., 88 Phil. 125, 131 (1951))
Petitioners invoke the following Principles and State Policies set
forth in Art. II of the Constitution:
The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy. (§5).
The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral
character shall receive the support of the Government. (§12)
The State recognizes the vital role of the youth in nation-building
and shall promote their physical, moral, spiritual, intellectual, and
social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic
affairs. (§13)
The State shall give priority to education, science and technology,
arts, culture, and sports to foster patriotism and nationalism,
accelerate social progress, and promote total human liberation and
development. (§17)
(Memorandum for Petitioners, p. 7)
These are not, however, self executing provisions, the disregard of
which can give rise to a cause of action in the courts. They do not
embody judicially enforceable constitutional rights but guidelines
for legislation.
Thus, while constitutional policies are invoked, this case involves
basically questions of contract law. More specifically, the question is
whether petitioners have a legal right which has been violated.
In actions for the annulment of contracts, such as this action, the
real parties are those who are parties to the agreement or are
bound either principally or subsidiarily or are prejudiced in their
rights with respect to one of the contracting parties and can show
the detriment which would positively result to them from the
contract even though they did not intervene in it (Ibañez v.
Hongkong & Shanghai Bank, 22 Phil. 572 (1912)), or who claim a
right to take part in a public bidding but have been illegally excluded
from it. (See De la Lara Co., Inc. v. Secretary of Public Works and
Communications, G.R. No.
L-13460, Nov. 28, 1958)
These are parties with "a present substantial interest, as
distinguished from a mere expectancy or future, contingent,
subordinate, or consequential interest. . . . The phrase 'present
substantial interest' more concretely is meant such interest of a
party in the subject matter of action as will entitle him, under the
substantive law, to recover if the evidence is sufficient, or that he
has the legal title to demand and the defendant will be protected in
a payment to or recovery by him." (1 MORAN, COMMENTS ON THE
RULES OF COURT 154-155 (1979)) Thus, in Gonzales v. Hechanova,
118 Phil. 1065 (1963) petitioner's right to question the validity of a
government contract for the importation of rice was sustained
because he was a rice planter with substantial production, who had
a right under the law to sell to the government.
But petitioners do not have such present substantial interest in the
ELA as would entitle them to bring this suit. Denying to them the
right to intervene will not leave without remedy any perceived
illegality in the execution of government contracts. Questions as to
the nature or validity of public contracts or the necessity for a public
bidding before they may be made can be raised in an appropriate
case before the Commission on Audit or before the Ombudsman.
The Constitution requires that the Ombudsman and his deputies,
"as protectors of the people shall act promptly on complaints filed
in any form or manner against public officials or employees of the
government, or any subdivision, agency or instrumentality thereof
including government-owned or controlled corporations." (Art. XI,
§12) In addition, the Solicitor General is authorized to bring an
action for quo warranto if it should be thought that a government
corporation, like the PCSO, has offended against its corporate
charter or misused its franchise. (Rule 66, §2 (a) (d))
We now turn to the merits of petitioners' claim constituting their
cause of action.
II. THE EQUIPMENT LEASE AGREEMENT
This Court ruled in the previous case that the Contract of Lease,
which the PCSO had entered into with the PGMC on December 17,
1993 for the operation of an on-line lottery system, was actually a
joint venture agreement or, at the very least, a contract involving
"collaboration or association" with another party and, for that
reason, was void. The Court noted the following features of the
contract:
(1) The PCSO had neither funds nor expertise to operate the
on-line lottery system so that it would be dependent on the PGMC
for the operation of the lottery system.
(2) The PGMC would exclusively bear all costs and expenses for
printing tickets, payment of salaries and wages of personnel,
advertising and promotion and other expenses for the operation of
the lottery system. Mention was made of the provision, which the
Court considered "unusual in a lessor-lessee relationship but
inherent in a joint venture," for the payment of the rental not at a
fixed amount but at a certain percentage (4.9%) of the gross
receipts from the sale of tickets, and the possibility that "nothing
may be due or demandable at all because the PGMC binds itself to
'bear all risks if the revenue from the ticket sales, on an annualized
basis, are insufficient to pay the entire prize money.'" (232 SCRA at
147)
(3) It was only after the term of the contract that PCSO
personnel would be ready to operate the lottery system themselves
because it would take the entire eight-year term of the contract for
the technology transfer to be completed. In the view of the Court,
this meant that for the duration of the contract, the PGMC would
actually be the operator of the lottery system, and not simply the
lessor of equipment.
The Court considered the Contract of Lease to be actually a joint
venture agreement. From another angle, it said that the
arrangement, especially the provision that all risks were for the
account of the PGMC, was in effect a lease by the PCSO of its
franchise to the PGMC.
These features of the old Contract of Lease have been removed in
the present ELA. While the rent is still expressed in terms of
percentage (it is now 4.3% of the gross receipts from the sale of
tickets) in the ELA, the PGMC is now guaranteed a minimum rent of
P35,000.00 a year per terminal in commercial operation. (Par. 2) The
PGMC is thus assured of payment of the rental. Thus par. 2 of the
ELA provides:
2. RENTAL
During the effectivity of this Agreement and the term "of this lease
as provided in paragraph 3 hereof, LESSEE shall pay rental to LESSOR
equivalent to FOUR POINT THREE PERCENT (4.3%) of the gross
amount of ticket sales from all of LESSEE's on-line lottery operations
in the Territory, which rental shall be computed and payable bi-
weekly net of withholding taxes on income, if any: provided that, in
no case shall the annual aggregate rentals per year during the term
of the lease be less than the annual minimum fixed rental computed
at P35,000.00 per terminal in commercial operation per annum,
provided, further that the annual minimum fixed rental shall be
reduced pro-rata for the number of days during the year that a
terminal is not in commercial operation due to repairs or
breakdown. In the event the aggregate bi-weekly rentals in any year
falls short of the annual minimum fixed rental computed at
P35,000.00 per terminal in commercial operation, the LESSEE shall
pay such shortfall from out of the proceeds of the then current
ticket sales from LESSEE's on-line; lottery operations in the Territory
(after payment first of prizes and agents' commissions but prior to
any other payments, allocations or disbursements) until said
shortfall shall have been fully settled, but without prejudice to the
payment to LESSOR of the then current bi-weekly rentals in
accordance with the provisions of the first sentence of this
paragraph 2.
The PCSO now bears all losses because the operation of the system
is completely in its hands. This feature of the new contract negates
any doubt that it is anything but a lease agreement.
It is contended that the rental of 4.3% is substantially the same as
the 4.9% in the old contract because the reduction is negligible
especially now that the PCSO assumes all business risks and risk of
loss of, or damage to, equipment. Petitioners allege that:
PGMC's annual minimum rental is P35,000.00 per terminal or a total
of P70,000,000.00 per annum considering that there are 2,000
terminals per the amended ELA. In order to meet the amount, based
on the 4.3% rental arrangement without a shortfall, the gross ticket
sales must amount to at least P1,627,906,977.00. Multiplying this
amount by 4.9% we get the 4.9% rental fee fixed under the old lease
contract and the product is P79,767,442.00. Deducting from this
amount the sum of P70,000,000.00 representing the annual
minimum rental under the amended ELA, we get the figure of
P9,767,442 which is equivalent to the .06% difference between the
rental under the old lease contract and under the amended ELA.
This amount of P9,767,442.00 cannot possibly cover the costs,
expenses and obligations shouldered by PGMC under the old lease
contract but which are now to be borne by the PCSO under the new
ELA, not to mention the additional P25 million that the PCSO has to
pay the PGMC if the former exercises its option to purchase the
equipment at the end of the lease period under the amended ELA.
(Petition, p. 37)
To be sure there is nothing unusual in fixing the rental as a certain
percentage of the gross receipts. The lease of space in commercial
buildings, for example, involves the payment of a certain percentage
of the receipts in rental. Under the Civil Code (Art. 1643) the only
requirement is that the rental be a "price certain." Petitioners do
not claim here that the rental is not a "price certain," simply
because it is expressed as a certain percentage of the total gross
amount of ticket sales.
Indeed it is not alone the fact that in the old contract the rental was
expressed in terms of percentage of the net proceeds from the sale
of tickets which was held to be characteristic of a joint venture
agreement. It was the fact that, in the prior case, the PGMC
assumed, in addition, all risks of loss from the operation of the
lottery, with the distinct possibility that nothing might be due it. In
the view of in the Court this possibility belied claims that the PGMC
had no participation in the lottery other than being merely the
lessor of equipment.
In the new contract the rental is also expressed in terms of
percentage of the gross proceeds from ticket sales because the
allocation of the receipts under the charter of the PCSO is also
expressed in percentage, to wit: 55% is set aside for prizes; 30% for
contribution to charity; and 15% for operating expenses and capital
expenditures. (R.A. No. 1169, §6) As the Solicitor General points out
in his Comment filed in behalf of the PCSO:
In the PCSO charter, operating costs are reflected as a percentage of
the net receipts (which is defined as gross receipts less ticket
printing costs which shall not exceed 2% and the 1% granted to the
Commission on Higher Education under Republic Act No. 7722). The
mandate of the law is that operating costs, which include payments
for any leased equipment, cannot exceed 15% of net receipts, or
14.55% of gross receipts. The following conclusions are, therefore
evident:
a. The 4.38 rental rate for the equipment is well within the
maximum of 15% net receipts fixed by law;
b. To obviate any violation of the law, it is best to express
large operating costs for budgetary purposes as a percentage of
either gross or net receipts, specifically since the amount of gross
receipts can only be estimated.
c. Large fixed sums of money for major operating costs, such
as fixed rental for equipment, can very well exceed the maximum
percentages fixed by law, specifically if actual gross receipts are
lower than estimates for budgetary purposes.
d. The problem of budgeting based on estimates is even more
difficult when new projects are involved, as is the case in the on-line
lottery.
(PCSO's Comment, pp. 18-20)
Petitioners reply that to obviate the possibility that the rental would
not exceed 15% of the net receipts what the respondents should
have done was not to agree on a minimum fixed rental of
P35,000.00 per terminal in commercial operation. This is a matter of
business judgment which, in the absence of a clear and convincing
showing that it was made in grave abuse of discretion of the PCSO,
this Court is not inclined to review. In this case the rental has to be
expressed in terms of percentage of the revenue of the PCSO
because rentals are treated in the charter of the agency (R.A. No.
1169, §6(C)) as "operating expenses" and the allotment for
"operating expenses" is a percentage of the net receipts.
The ELA also provides:
8. REPAIR SERVICES
LESSEE shall bear the costs of maintenance and necessary repairs,
except those repairs to correct defective workmanship or replace
defective materials used in the manufacture of Equipment
discovered after delivery of the Equipment, in which case LESSOR
shall bear the costs of such repairs and, if necessary, the
replacements. The LESSEE may at any time during the term of the
lease, request the LESSOR to upgrade the equipment and/or
increase the number or terminals, in which case the LESSEE and
LESSOR shall agree on an arrangement mutually satisfactory to both
of them, upon such terms as may be mutually agreed upon.
By virtue of this provision on upgrading of equipment, petitioners
claim, the parties can change their entire agreement and thereby,
by "clever means and devices," enable the PGMC to "actually
operate, manage, control and supervise the conduct and holding of
the on-line lottery system," considering that as found in the first
decision, "the PCSO had neither funds of its own nor the expertise
to operate and manage an on-line lottery."
The claim is speculative. It is just as possible to speculate that after
sometime operating the lottery system the PCSO will be able to
accumulate enough capital to enable it to buy its own equipment
and gain expertise. As for expertise, after three months of operation
of the on-line lottery, there appears to be no complaint that the
PCSO is relying on others, outside its own personnel, to run the
system. In any case as in the construction of statutes, the
presumption is that in making contracts the government has acted
in good faith. The doctrine that the possibility of abuse is not a
reason for denying power to the government holds true also in
cases involving the validity of contracts made by it.
Finally, because the term "Equipment" is defined in the ELA as
including "technology, intellectual property rights, know-how
processes and systems," it is claimed that these items could only be
transferred to the PCSO by the PGMC training PCSO personnel and
this was found in the first case to be a badge of a joint venture.
Like the argument based on the upgrading of equipment, we think
this contention is also based on speculation rather than on fact or
experience. Evidence is needed to show that the transfer of
technology would involve the PCSO and its personnel in prohibited
association or collaboration with the PGMC within the
contemplation of the law.
A contract of lease, as this is defined in Civil law, may call for some
form of collaboration or association between the parties since lease
is a "consensual, bilateral, onerous and commutative contract by
which one person binds himself to grant temporarily the use of a
thing or the rendering of some service to another who undertakes
to pay some rent, compensation or price." (5 PADILLA, CIVIL CODE
611 (6TH Ed 1974)). The lessor of a commercial building, it may be
assumed, would be interested in the success of its tenants. But it is
untenable to contend that this is what the charter of the PCSO
contemplates in prohibiting it from entering into "collaboration or
association" with any party. It may be added that even if the PCSO
purchases its own equipment, it still needs the assistance of the
PGMC in the initial phase or operation.
We hold that the ELA is a lease contract and that it contains none of
the features of the former contract which were considered "badges
of a joint venture agreement." To further find fault with the new
contract would be to cavil and expose the opposition to the contract
to be actually an opposition to lottery under any and all
circumstances. But "[t]he morality of gambling is not a justiciable
issue. Gambling is not illegal per se. . . . It is left to Congress to deal
with the activity as it sees fit." (Magtajas v. Pryce Properties Corp.
Inc., 234 SCRA 255, 268 (1994). Cf. Lim v. Pacquing, G.R. No. 115044,
Jan. 27, 1995) In the case of lottery, there is no dispute that, to
enable the Philippine Charity Sweepstakes Office to raise funds for
charity, Congress authorized the Philippine Charity Sweepstakes
Office (PCSO) to hold or conduct lotteries under certain conditions.
We therefore now consider whether under the charter of the PCSO
any contract for the operation of an on-line lottery system, which
involves any form of collaboration or association, is prohibited.
III. THE INTERPRETATION OF §1 OF R.A. 1169
In G.R. No. 113375 it was held that the PCSO does not have the
power to enter into any contract which would involve it in any form
of "collaboration, association or joint venture" for the holding of
sweepstakes races, lotteries and other similar activities. This
interpretation must be reexamined especially in determining
whether petitioners have a cause of action.
We hold that the charter of the PCSO does not absolutely prohibit it
from holding or conducting lottery "in collaboration, association or
joint venture" with another party. What the PCSO is prohibited from
doing is to invest in a business engaged in sweepstakes races,
lotteries and similar activities, and it is prohibited from doing so
whether in "collaboration, association or joint venture" with others
or "by itself." The reason for this is that these are competing
activities and the PCSO should not invest in the business of a
competitor.
It will be helpful to quote the pertinent provisions of R.A. No. 1169,
as amended by B.P. Blg. 42:
§.1 The Philippine Charity Sweepstakes Office.— The Philippine
Charity Sweepstakes Office, hereinafter designated the Office, shall
be the principal government agency for raising and providing for
funds for health programs, medical assistance and services and
charities of national character, and as such shall have the general
powers conferred in section thirteen of Act Numbered One
Thousand Four Hundred Fifty-Nine, as amended, and shall have the
authority:
A. To hold and conduct charity sweepstakes races, lotteries
and other similar activities, in such frequency and manner, as shall
be determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human
Settlements, to engage in health and welfare-related investments,
programs, projects and activities which may be profit-oriented, by
itself or in collaboration, association or joint venture with any
person, association, company or entity, whether domestic or
foreign, except for the activities mentioned in the preceding
paragraph (A), for the purpose of providing for permanent and
continuing sources of funds for health programs, including the
expansion of existing ones, medical assistance and services, and/or
charitable grants: Provided, That such investments will not compete
with the private sector in areas where investments are adequate as
may be determined by the National Economic and Development
Authority.
When parsed, it will be seen that §1 grants the PCSO authority to do
any of the following: (1) to hold or conduct charity sweepstakes
races, lotteries and similar activities; and/or (2) to invest — whether
"by itself or in collaboration, association or joint venture with any
person, association, company or entity" — in any "health and
welfare-related investments, programs, projects and activities which
may be profit oriented," except "the activities mentioned in the
preceding paragraph (A)," i.e., sweepstakes races, lotteries and
similar activities. The PCSO is prohibited from investing in "activities
mentioned in the preceding paragraph (A)" because, as already
stated, these are competing activities.
The subject matter of §1(B) is the authority of the PCSO to invest in
certain projects for profit in order to enable it to expand its health
programs, medical assistance and charitable grants. The exception
in the law refers to investment in businesses engaged in
sweepstakes races, lotteries and similar activities. The limitation
applies not only when the investment is undertaken by the PCSO "in
collaboration, association or joint venture" but also when made by
the PCSO alone, "by itself." The prohibition can not apply to the
holding of a lottery by the PCSO itself. Otherwise, what it is
authorized to do in par. (A) would be negated by what is prohibited
by par. (B).
To harmonize pars. (A) and (B), the latter must be read as referring
to the authority of the PCSO to invest in the business of others. Put
in another way, the prohibition in §1(B) is not so much against the
PCSO entering into any collaboration, association or joint venture
with others as against the PCSO investing in the business of another
franchise holder which would directly compete with PCSO's own
charity sweepstakes races, lotteries or similar activities. The
prohibition applies whether the PCSO makes the investment alone
or with others.
The contrary construction given to §1 in the previous decision is
based on remarks made by then Assemblyman, now Mr. Justice,
Davide during the deliberations on what later became B.P. Blg. 42,
amending R.A. No. 1169. It appears, however, that the remarks
were made in connection with a proposal to give the PCSO the
authority "to engage in any and all investments." It was to provide
exception with regard to the type of investments which the PCSO is
authorized to make that the Davide amendment was adopted. It is
reasonable to suppose that the members of the Batasan Pambansa,
in approving the amendment, understood it as referring to the
exception to par. (B) of §1 giving the PCSO the power to make
investments. Had it been their intention to prohibit the PCSO from
entering into any collaboration, association or joint venture with
others even in instances when the sweepstakes races, lotteries or
similar activities are operated by it ("itself"), they would have made
the amendment not in par. (B), but in par (A), of §1, as the logical
place for the amendment.
The following excerpt2 from the record of the discussion on
Parliamentary Bill No. 622, which became B.P. Blg. 422, bears out
this conclusion:
MR. ZAMORA. On the same page, starting from line 18 until line
23, delete the entire paragraph from "b. to engage in any and all
investment. . . ." until the words "charitable grants" on line 23 and
in lieu thereof insert the following:
SUBJECT TO THE APPROVAL OF THE MINISTER OF HUMAN
SETTLEMENTS, TO ENGAGE IN HEALTH-ORIENTED INVESTMENTS,
PROGRAMS, PROJECTS AND ACTIVITIES WHICH MAY BE PROFIT-
ORIENTED, BY ITSELF OR IN COLLABORATION, ASSOCIATION, OR
JOINT VENTURE WITH ANY PERSON, ASSOCIATION, COMPANY OR
ENTITY, WHETHER DOMESTIC OR FOREIGN, FOR THE PURPOSE OF
PROVIDING FOR PERMANENT AND CONTINUING SOURCES OF
FUNDS FOR HEALTH PROGRAMS, INCLUDING THE EXPANSION OF
EXISTING ONES, MEDICAL ASSISTANCE AND SERVICES AND/OR
CHARITABLE GRANTS.
I move for approval of the amendment, Mr. Speaker.
MR. DAVIDE. Mr. Speaker.
THE SPEAKER. The gentleman from Cebu is recognized.
MR. DAVIDE. May I introduce an amendment to the committee
amendment? The amendment would be to insert after "foreign" in
the amendment just read the following: EXCEPT FOR THE ACTIVITY
IN LETTER (A) ABOVE.
When it is a joint venture or in collaboration with any other entity
such collaboration or joint venture must not include activity letter
(a) which is the holding and conducting of sweepstakes races,
lotteries and other similar acts.
MR. ZAMORA. We accept the amendment, Mr. Speaker.
MR. DAVIDE. Thank you, Mr. Speaker.
THE SPEAKER. Is there any objection to the amendment?
(Silence) The amendment, as amended, is approved.
MR. ZAMORA. Continuing the line, Mr. Speaker, after "charitable
grants" change the period (.) into a semi-colon (;) and add the
following proviso: PROVIDED, THAT SUCH INVESTMENTS,
PROGRAMS, PROJECTS AND ACTIVITIES SHALL NOT COMPETE WITH
THE PRIVATE SECTOR IN AREAS WHERE PRIVATE INVESTMENTS ARE
ADEQUATE.
May I read the whole paragraph, Mr. Speaker.
MR. DAVIDE. May I introduce an amendment after "adequate".
The intention of the amendment is not to leave the determination
of whether it is adequate or not to anybody. And my amendment is
to add after "adequate" the words AS MAY BE DETERMINED BY THE
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY. As a matter
of fact, it will strengthen the authority to invest in these areas,
provided that the determination of whether the private sector's
activity is already adequate must be determined by the National
Economic and Development Authority.
MR. ZAMORA. Mr. Speaker, the committee accepts the proposed
amendment.
MR. DAVIDE. Thank you, Mr. Speaker
THE SPEAKER. May the sponsor now read the entire paragraph?
MR. ZAMORA. May I read the paragraph, Mr. Speaker.
Subject to the Minister of Human Settlements, to engage in health
and welfare-oriented investment programs, projects, and activities
which may be profit-oriented, by itself or in collaboration,
association or joint venture with any person, association, company
or entity, whether domestic or foreign, EXCEPT FOR THE ACTIVITIES
MENTIONED IN PARAGRAPH (a) for the purpose of providing for
permanent and continuing sources of funds for health programs,
including the expansion of existing ones, medical assistance and
services and/or charitable grants: PROVIDED THAT SUCH
INVESTMENTS, HEALTH PROGRAMS, PROJECTS AND ACTIVITIES
SHALL NOT COMPETE WITH THE PRIVATE SECTOR IN AREAS WHERE
PRIVATE INVESTMENTS ARE ADEQUATE AS MAY BE DETERMINED BY
THE NATIONAL AND ECONOMIC DEVELOPMENT AUTHORITY.
THE SPEAKER. Is there any objection to the amendment?
MR. PELAEZ. Mr. Speaker.
THE SPEAKER. The Gentleman from Misamis Oriental is
recognized.
MR. PELAEZ. Mr. Speaker, may I suggest that in that proviso, we
remove "health programs, projects and activities," because the
proviso refers only to investment activities — "provided that such
investments will not compete with the private sector in areas where
investments are adequate . . . .
MR. ZAMORA. It is accepted, Mr. Speaker.
THE SPEAKER. Is there any objection?
MR. PELAEZ. Mr. Speaker, may I propose an improvement to
the amendment of the Gentleman from Cebu, just for style, I would
suggest the insertion of the word PRECEDING before the word
"paragraph." The phrase will read "the PRECEDING paragraph."

MR. ZAMORA. It is accepted, Mr. Speaker.
THE SPEAKER. Very well. Is there any objection to the committee
amendment, as amended? (Silence). The Chair hears none; the
amendment is approved.
The construction given to §1 in the previous decision is
insupportable in light of both the text of §1 and the deliberations of
the Batasang Pambansa which enacted the amendatory law.
IV. REQUIREMENT OF PUBLIC BIDDING
Finally the question is whether the ELA is subject to public bidding.
In justifying the award of the contract to the PGMC without public
bidding, the PCSO invokes E.O. No. 301, which states in pertinent
part:
§1. Guidelines for Negotiated Contracts. Any provision of law,
decree, executive order or other issuances to the contrary
notwithstanding, no contract for public services or for furnishing
supplies, materials and equipment to the government or any of its
branches, agencies or instrumentalities shall be renewed or entered
into without public bidding, except under any of the following
situations.
a. Whenever the supplies are urgently needed to meet an
emergency which may involve the loss of, or danger to, life and/or
property:
b. Whenever the supplies are to be used in connection with a
project or activity which cannot be delayed without causing
detriment to the public service;
c. Whenever the materials are sold by an exclusive distributor
or manufacturer who does not have sub-dealers selling at lower
prices and for which no suitable substitute can be obtained
elsewhere at more advantageous terms to the government;
d. Whenever the supplies under procurement have been
unsuccessfully placed on bid for at least two consecutive times,
either due to lack of bidders or the offers received in each instance
were exorbitant or non-conforming to specifications:
e. In cases where it is apparent that the requisition of the
needed supplies through negotiated purchase is most advantageous
to the government to be determined by the Department Head
concerned; and
f. Whenever the purchase is made from an agency of the
government.
Petitioners point out that while the general rule requiring public
bidding covers "contract[s] for public services or for furnishing
supplies, materials and equipment" to the government or to any of
its branches, agencies or instrumentalities, the exceptions in pars.
(a), (b), (d), (e) and (f) refer to contracts for the furnishing of
supplies only, while par. (c) refers to the furnishing of materials,
only. They argue that as the general rule covers the furnishing of
"supplies, materials and equipment," the reference in the
exceptions to the furnishing of "supplies" must be understood as
excluding the furnishing of any of the other items, i.e., "materials"
and "equipment."
E.O. No. 301, §1 applies only to contracts for the purchase of
supplies, materials and equipment. It does not refer to contracts of
lease of equipment like the ELA. The provisions on lease are found
in §§ 6 and 7 but they refer to the lease of privately-owned buildings
or spaces for government use or of government-owned buildings or
spaces for private use, and these provisions do not require public
bidding. These provisions state:
§6. Guidelines for Lease Contracts. — Any provisions of law,
decree, executive order or other issuances to the contrary
notwithstanding, the Department of Public Works and Highways
(DPWH), with respect to the leasing of privately-owned buildings or
spaces for government use or of government-owned buildings or
space for private use, shall formulate uniform standards or
guidelines for determining the reasonableness of the terms of lease
contracts and of the rental rates involved.
§7. Jurisdiction Over Lease Contracts. — The heads of agency
intending to rent privately-owned buildings or spaces for their use,
or to lease out government-owned buildings or spaces for private
use, shall have authority to determine the reasonableness of the
terms of the lease and the rental rates thereof, and to enter in such
lease contracts without need of prior approval by higher authorities,
subject to compliance with the uniform standards or guidelines
established pursuant to Section 6 hereof by the DPWH and to the
audit jurisdiction of COA or its duly authorized representative in
accordance with existing rules and regulations.
It is thus difficult to see how E.O. No. 301 can be applied to the ELA
when the only feature of the ELA that may be thought of as close to
a contract of purchase and sale is the option to buy given to the
PCSO. An option to buy is not of course a contract of purchase and
sale.
Even assuming that §l of E.O. No. 301 applies to lease contracts, the
reference to "supplies" in the exceptions can not be strictly
construed to exclude the furnishing of "materials" and "equipment"
without defeating the purpose for which these exceptions are made.
For example, par. (a) excepts from the requirement of public bidding
the furnishing of "supplies" which are "urgently needed to meet an
emergency which may involve the loss of, or danger to, life and/or
property." Should rescue operations during a calamity, such as an
earthquake, require the use of heavy equipment, either by purchase
or lease, no one can insist that there should first be a public bidding
before the equipment may be purchased or leased because the
heavy equipment is not a "supply" and §1 (a) is limited to the
furnishing of "supplies" that are urgently needed.
Petitioners contend that in any event the contract in question is not
the "most advantageous to the government." Whether the making
of the present ELA meets this condition is not to be judged by a
comparison, line by line, of its provisions with those of the old
contract which this Court found to be in reality a joint venture
agreement. In some respects the old contract would be more
favorable to the government because the PGMC assumed many of
the risks and burdens incident to the operation of the on-line lottery
system, while under the ELA it is freed from these burdens. That is
because the old contract was a joint venture agreement. The ELA,
on the on the other hand, is a lease contracts, with the PCSO, as
lessee, bearing solely the risks and burdens of operating the on-line
lottery system
It is paradoxical that in their effort to show that the ELA is a joint
venture agreement and not a lease contract, petitioners point to
contractual provisions whereby the PGMC assumed risks and losses
which might be conceivably be incurred in the operation of the
lottery system, but to show that the present lease agreement is not
the most advantageous arrangement that can be obtained, the very
absence of these features of the old contract which made it a joint
venture agreement, is criticized.

Indeed the question is not whether compared with the former joint
venture agreement the present lease contract is "[more]
advantageous to the government." The question is whether under
the circumstances, the ELA is the most advantageous contract that
could be obtained compared with similar lease agreements which
the PCSO could have made with other parties. Petitioners have not
shown that more favorable terms could have been obtained by the
PCSO or that at any rate the ELA, which the PCSO concluded with
the PGMC, is disadvantageous to the government.

For the foregoing reasons, we hold:

(1) that petitioners have neither standing to bring this suit nor
substantial interest to make them real parties in interest within the
meaning of Rule 3 §2;

(2) that a determination of the petitioners' right to bring this

suit is not precluded or barred by the decision in the prior case
between the parties;

(3) that the Equipment Lease Agreement of January 25, 1995 is

valid as a lease contract under the Civil Code and is not contrary to
the charter of the Philippine Charity Sweepstakes Office;

(4) that under §1(A) of its charter (R.A. 1169), the Philippine
Charity Sweepstakes Office has authority to enter into a contract for
the holding of an
on-line lottery, whether alone or in association, collaboration or
joint venture with another party, so long as it itself holds or
conducts such lottery; and

(5) That the Equipment Lease Agreement in question did not

have to be submitted to public bidding as a condition for its validity.

WHEREFORE, the Petition for Prohibition, Review and/or Injunction

seeking to declare the Equipment Lease Agreement between the
Philippine Charity Sweepstakes Office and the Philippine Gaming
Management Corp. invalid is DISMISSED.

SO ORDERED.
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS,
H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL,
GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C.
BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-
IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO
CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC.,
Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA
ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT
C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-
BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR
CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO
SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP,
Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER
C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-
KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA
P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN,
Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF
OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA,
AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO,
Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than
rigid formula are necessary.1 Superior strength – the use of force –
cannot make wrongs into rights. In this regard, the courts should be
vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus
most relevant. He said: "In cases involving liberty, the scales of
justice should weigh heavily against government and in favor of the
poor, the oppressed, the marginalized, the dispossessed and the
weak." Laws and actions that restrict fundamental rights come to
the courts "with a heavy presumption against their constitutional
validity."2
These seven (7) consolidated petitions for certiorari and prohibition
allege that in issuing Presidential Proclamation No. 1017 (PP 1017)
and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-
Arroyo committed grave abuse of discretion. Petitioners contend
that respondent officials of the Government, in their professed
efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but persistently
modern problem. How does the Constitution of a free people
combine the degree of liberty, without which, law becomes tyranny,
with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary
of the Edsa People Power I, President Arroyo issued PP 1017
declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the
Republic of the Philippines and Commander-in-Chief of the Armed
Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that:
"The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress. . .rebellion. . .," and in my
capacity as their Commander-in-Chief, do hereby command the
Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;
and as provided in Section 17, Article 12 of the Constitution do
hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists – the historical enemies of the
democratic Philippine State – who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly constituted Government elected in
May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
the President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by
obstructing governance including hindering the growth of the
economy and sabotaging the people’s confidence in government
and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the
extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the
defense and preservation of the democratic institutions and the
State the primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of
the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP
1017, thus:
WHEREAS, over these past months, elements in the political
opposition have conspired with authoritarians of the extreme Left,
represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the
democratic Philippine State – and who are now in a tactical alliance
and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly-constituted Government elected in
May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down
our republican government;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the
economy and sabotaging the people’s confidence in the government
and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the
extreme Left and extreme Right the opening to intensify their
avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the
defense and preservation of the democratic institutions and the
State the primary duty of Government;
WHEREAS, the activities above-described, their consequences,
ramifications and collateral effects constitute a clear and present
danger to the safety and the integrity of the Philippine State and of
the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been
issued declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the
Republic of the Philippines, and Commander-in-Chief of the Republic
of the Philippines, and pursuant to Proclamation No. 1017 dated
February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to
prevent and suppress acts of terrorism and lawless violence in the
country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP,
as well as the officers and men of the AFP and PNP, to immediately
carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state
of national emergency and after all these petitions had been filed,
the President lifted PP 1017. She issued Proclamation No. 1021
which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article
XII of the Constitution, Proclamation No. 1017 dated February 24,
2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February
24, 2006, which were issued on the basis of Proclamation No. 1017,
the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action
as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed
and quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of
the Republic of the Philippines, by virtue of the powers vested in me
by law, hereby declare that the state of national emergency has
ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive
issuances was the conspiracy among some military officers, leftist
insurgents of the New People’s Army (NPA), and some members of
the political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and
present danger.
During the oral arguments held on March 7, 2006, the Solicitor
General specified the facts leading to the issuance of PP 1017 and
G.O. No. 5. Significantly, there was no refutation from petitioners’
counsels.
The Solicitor General argued that the intent of the Constitution is to
give full discretionary powers to the President in determining the
necessity of calling out the armed forces. He emphasized that none
of the petitioners has shown that PP 1017 was without factual
bases. While he explained that it is not respondents’ task to state
the facts behind the questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the elucidation of the
issues.
On January 17, 2006, Captain Nathaniel Rabonza and First
Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio
Bumidang, members of the Magdalo Group indicted in the Oakwood
mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In
a public statement, they vowed to remain defiant and to elude
arrest at all costs. They called upon the people to "show and
proclaim our displeasure at the sham regime. Let us demonstrate
our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document
entitled "Oplan Hackle I " which detailed plans for bombings and
attacks during the Philippine Military Academy Alumni Homecoming
in Baguio City. The plot was to assassinate selected targets including
some cabinet members and President Arroyo herself.6 Upon the
advice of her security, President Arroyo decided not to attend the
Alumni Homecoming. The next day, at the height of the celebration,
a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two
(2) flash disks containing minutes of the meetings between
members of the Magdalo Group and the National People’s Army
(NPA), a tape recorder, audio cassette cartridges, diskettes, and
copies of subversive documents.7 Prior to his arrest, Lt. San Juan
announced through DZRH that the "Magdalo’s D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted
information that members of the PNP- Special Action Force were
planning to defect. Thus, he immediately ordered SAF Commanding
General Marcelino Franco, Jr. to "disavow" any defection. The latter
promptly obeyed and issued a public statement: "All SAF units are
under the effective control of responsible and trustworthy officers
with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping
Cojuangco, President Cory Aquino’s brother, businessmen and mid-
level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that
Pastor Saycon, longtime Arroyo critic, called a U.S. government
official about his group’s plans if President Arroyo is ousted. Saycon
also phoned a man code-named Delta. Saycon identified him as
B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger.
Lim said "it was all systems go for the planned movement against
Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin
confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces
of the Philippines (AFP), that a huge number of soldiers would join
the rallies to provide a critical mass and armed component to the
Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of command to
join the forces foist to unseat the President. However, Gen. Senga
has remained faithful to his Commander-in-Chief and to the chain of
command. He immediately took custody of B/Gen. Lim and directed
Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and
revolutionary work within the military and the police establishments
in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist
Party and revolutionary movement and the entire people look
forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it
to weaken and unable to rule that it will not take much longer to
end it."9
On the other hand, Cesar Renerio, spokesman for the National
Democratic Front (NDF) at North Central Mindanao, publicly
announced: "Anti-Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties suffered by
the families of AFP officers and enlisted personnel who undertake
counter-insurgency operations in the field." He claimed that with
the forces of the national democratic movement, the anti-Arroyo
conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President’s
ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of
telecommunication towers and cell sites in Bulacan and Bataan was
also considered as additional factual basis for the issuance of PP
1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of
the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more
from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her
security advisers and several cabinet members to assess the gravity
of the fermenting peace and order situation. She directed both the
AFP and the PNP to account for all their men and ensure that the
chain of command remains solid and undivided. To protect the
young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire
National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation
of all programs and activities related to the 20th anniversary
celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the President’s mind
were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced
that "warrantless arrests and take-over of facilities, including media,
can already be implemented."11
Undeterred by the announcements that rallies and public
assemblies would not be allowed, groups of protesters (members of
Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-
Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of
Metro Manila with the intention of converging at the EDSA shrine.
Those who were already near the EDSA site were violently dispersed
by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to
stop and break up the marching groups, and scatter the massed
participants. The same police action was used against the protesters
marching forward to Cubao, Quezon City and to the corner of
Santolan Street and EDSA. That same evening, hundreds of riot
policemen broke up an EDSA celebration rally held along Ayala
Avenue and Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017
as the ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested
(without warrant) petitioner Randolf S. David, a professor at the
University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list
Akbayan.
At around 12:20 in the early morning of February 25, 2006,
operatives of the Criminal Investigation and Detection Group (CIDG)
of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily
Tribune offices in Manila. The raiding team confiscated news stories
by reporters, documents, pictures, and mock-ups of the Saturday
issue. Policemen from Camp Crame in Quezon City were stationed
inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside
the building.13
A few minutes after the search and seizure at the Daily Tribune
offices, the police surrounded the premises of another pro-
opposition paper, Malaya, and its sister publication, the tabloid
Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is
"meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down
this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the
government during the state of national emergency." Director
General Lomibao stated that "if they do not follow the standards –
and the standards are - if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order
No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’"
National Telecommunications’ Commissioner Ronald Solis urged
television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He asked for
"balanced reporting" from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned
that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when
the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang
Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The
police showed a warrant for his arrest dated 1985. Beltran’s lawyer
explained that the warrant, which stemmed from a case of inciting
to rebellion filed during the Marcos regime, had long been quashed.
Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit
Beltran, they were told they could not be admitted because of PP
1017 and G.O. No. 5. Two members were arrested and detained,
while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the
police went after him during a public forum at the Sulo Hotel in
Quezon City. But his two drivers, identified as Roel and Art, were
taken into custody.
Retired Major General Ramon Montaño, former head of the
Philippine Constabulary, was arrested while with his wife and
golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur
Ocampo, Representative Rafael Mariano, Bayan Muna
Representative Teodoro Casiño and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the
PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the "Batasan 5"
decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the
rights of Representatives Beltran, Satur Ocampo, et al., are not
being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that
the state of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the
constitutionality of PP 1017 and G.O. No. 5 were filed with this
Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP
1017 on the grounds that (1) it encroaches on the emergency
powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates
the constitutional guarantees of freedom of the press, of speech
and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune
Publishing Co., Inc. challenged the CIDG’s act of raiding the Daily
Tribune offices as a clear case of "censorship" or "prior restraint."
They also claimed that the term "emergency" refers only to tsunami,
typhoon, hurricane and similar occurrences, hence, there is
"absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis
Joseph G. Escudero, and twenty one (21) other members of the
House of Representatives, including Representatives Satur Ocampo,
Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They
asserted that PP 1017 and G.O. No. 5 constitute "usurpation of
legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo
"gravely abused her discretion in calling out the armed forces
without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their
members averred that PP 1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the power to enact
laws and decrees; (2) their issuance was without factual basis; and
(3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI)
alleged that PP 1017 and G.O. No. 5 are unconstitutional because
they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and
418 of Article III, (c) Section 2319 of Article VI, and (d) Section 1720
of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged
that PP 1017 is an "arbitrary and unlawful exercise by the President
of her Martial Law powers." And assuming that PP 1017 is not really
a declaration of Martial Law, petitioners argued that "it amounts to
an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP
1017 "goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda
maintained that PP 1017 and G.O. No. 5 are "unconstitutional for
being violative of the freedom of expression, including its cognate
rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under
Article III, Section 4 of the 1987 Constitution." In this regard, she
stated that these issuances prevented her from fully prosecuting her
election protest pending before the Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General
countered that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424
(Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP
1017 has constitutional and legal basis; and fifth, PP 1017 does not
violate the people’s right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard
the parties on the above interlocking issues which may be
summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and
academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400
(ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424
(Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP
1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this
country is the concept of judicial review enunciated in Marbury v.
Madison.21 This concept rests on the extraordinary simple
foundation --
The Constitution is the supreme law. It was ordained by the people,
the ultimate source of all political authority. It confers limited
powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must
be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve
inviolate the will of the people as expressed in the Constitution. This
power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a
"self-starting capacity."23 Courts may exercise such power only
when the following requisites are present: first, there must be an
actual case or controversy; second, petitioners have to raise a
question of constitutionality; third, the constitutional question must
be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of
the case itself.24
Respondents maintain that the first and second requisites are
absent, hence, we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an
opposite legal claims susceptible of judicial resolution. It is "definite
and concrete, touching the legal relations of parties having adverse
legal interest;" a real and substantial controversy admitting of
specific relief.25 The Solicitor General refutes the existence of such
actual case or controversy, contending that the present petitions
were rendered "moot and academic" by President Arroyo’s issuance
of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,26 so that a declaration
thereon would be of no practical use or value.27 Generally, courts
decline jurisdiction over such case28 or dismiss it on ground of
mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not
render the present petitions moot and academic. During the eight
(8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017
and G.O. No. 5 constitutional or valid? Do they justify these alleged
illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that "an unconstitutional act is
not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will
decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution;31 second, the exceptional character of
the situation and the paramount public interest is involved;32 third,
when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public;33 and fourth,
the case is capable of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners
alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect
the public’s interest, involving as they do the people’s basic rights to
freedom of expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present
petitions, the military and the police, on the extent of the protection
given by constitutional guarantees.35 And lastly, respondents’
contested actions are capable of repetition. Certainly, the petitions
are subject to judicial review.
In their attempt to prove the alleged mootness of this case,
respondents cited Chief Justice Artemio V. Panganiban’s Separate
Opinion in Sanlakas v. Executive Secretary.36 However, they failed
to take into account the Chief Justice’s very statement that an
otherwise "moot" case may still be decided "provided the party
raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance." The
present case falls right within this exception to the mootness rule
pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities,
the Court deems it imperative to have a more than passing
discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice
on a given question."37 In private suits, standing is governed by the
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "real-party-in interest" is "the
party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit."38 Succinctly put,
the plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here,
the plaintiff who asserts a "public right" in assailing an allegedly
illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any
other person. He could be suing as a "stranger," or in the category
of a "citizen," or ‘taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words,
he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk,39 where it was held that the plaintiff in
a taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:40 "In matter of mere public
right, however…the people are the real parties…It is at least the
right, if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a public
grievance be remedied." With respect to taxpayer’s suits, Terr v.
Jordan41 held that "the right of a citizen and a taxpayer to maintain
an action in courts to restrain the unlawful use of public funds to his
injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed
with, and thus hinders the activities of governmental agencies
engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt,42
later reaffirmed in Tileston v. Ullman.43 The same Court ruled that
for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he
has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of
the public.
This Court adopted the "direct injury" test in our jurisdiction. In
People v. Vera,44 it held that the person who impugns the validity
of a statute must have "a personal and substantial interest in the
case such that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of cases, such as,
Custodio v. President of the Senate,45 Manila Race Horse Trainers’
Association v. De la Fuente,46 Pascual v. Secretary of Public
Works47 and Anti-Chinese League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of
locus standi may be waived by the Court in the exercise of its
discretion. This was done in the 1949 Emergency Powers Cases,
Araneta v. Dinglasan,49 where the "transcendental importance" of
the cases prompted the Court to act liberally. Such liberality was
neither a rarity nor accidental. In Aquino v. Comelec,50 this Court
resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit.
Indeed, there is a chain of cases where this liberal policy has been
observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or
validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners
have failed to show direct injury, they have been allowed to sue
under the principle of "transcendental importance." Pertinent are
the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that
the enforcement of the constitutional right to information and the
equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus
standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court
held that "given the transcendental importance of the issues
involved, the Court may relax the standing requirements and allow
the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress’
taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental
importance, the cases must be settled promptly and definitely and
standing requirements may be relaxed.
By way of summary, the following rules may be culled from the
cases decided by this Court. Taxpayers, voters, concerned citizens,
and legislators may be accorded standing to sue, provided that the
following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled
early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the
Court’s attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of
Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract,
more so where it does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent any allegation that
public funds are being misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines,
Inc. v. Comelec,57 the Court reiterated the "direct injury" test with
respect to concerned citizens’ cases involving constitutional issues.
It held that "there must be a showing that the citizen personally
suffered some actual or threatened injury arising from the alleged
illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners,
Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest
as it had not demonstrated any injury to itself or to its leaders,
members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the
petitioners who are members of Congress have standing to sue, as
they claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing
their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to
be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present
petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David
and Llamas, is beyond doubt. The same holds true with petitioners
in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc.
They alleged "direct injury" resulting from "illegal arrest" and
"unlawful search" committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal
standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of
whether or not the concurrence of Congress is necessary whenever
the alarming powers incident to Martial Law are used. Moreover, it
is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of
the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in
Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue
concerns a public right, it is sufficient that the petitioner is a citizen
and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be deemed sufficient to
give it legal standing. Organizations may be granted standing to
assert the rights of their members.65 We take judicial notice of the
announcement by the Office of the President banning all rallies and
canceling all permits for public assemblies following the issuance of
PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national
officers of the Integrated Bar of the Philippines (IBP) have no legal
standing, having failed to allege any direct or potential injury which
the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In
Integrated Bar of the Philippines v. Zamora,66 the Court held that
the mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe
it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of
the transcendental importance of the issue, this Court declares that
petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer
to file the instant petition as there are no allegations of illegal
disbursement of public funds. The fact that she is a former Senator
is of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired
by PP 1017 and G.O. No. 5. Her claim that she is a media personality
will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her
occupation. Her submission that she has pending electoral protest
before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may
relax the standing rules.
It must always be borne in mind that the question of locus standi is
but corollary to the bigger question of proper exercise of judicial
power. This is the underlying legal tenet of the "liberality doctrine"
on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling
of this Court on this very critical matter. The petitions thus call for
the application of the "transcendental importance" doctrine, a
relaxation of the standing requirements for the petitioners in the
"PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as
respondent. Settled is the doctrine that the President, during his
tenure of office or actual incumbency,67 may not be sued in any
civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of
the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he
be freed from any form of harassment, hindrance or distraction to
enable him to fully attend to the performance of his official duties
and functions. Unlike the legislative and judicial branch, only one
constitutes the executive branch and anything which impairs his
usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he
remains accountable to the people68 but he may be removed from
office only in the mode provided by law and that is by
impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was
not "necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached
its distilled point - from the indulgent days of Barcelon v. Baker70
and Montenegro v. Castaneda71 to the volatile era of Lansang v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The
tug-of-war always cuts across the line defining "political questions,"
particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch
of the government."75 Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has
arisen belongs to the President and his decision is final and
conclusive on the courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that the
Court has the authority to inquire into the existence of factual bases
in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the system
of checks and balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has so
acted is vested in the Judicial Department, which in this respect, is,
in turn, constitutionally supreme."76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was
almost evenly divided on the issue of whether the validity of the
imposition of Martial Law is a political or justiciable question.78
Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It
declared that there is a need to re-examine the latter case,
ratiocinating that "in times of war or national emergency, the
President must be given absolute control for the very life of the
nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and
God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case
most pertinent to these cases at bar -- echoed a principle similar to
Lansang. While the Court considered the President’s "calling-out"
power as a discretionary power solely vested in his wisdom, it
stressed that "this does not prevent an examination of whether
such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on
Section 1, Article VIII of 1987 Constitution which fortifies the
authority of the courts to determine in an appropriate action the
validity of the acts of the political departments. Under the new
definition of judicial power, the courts are authorized not only "to
settle actual controversies involving rights which are legally
demandable and enforceable," but also "to determine whether or
not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion
of the political departments of the government.81 It speaks of
judicial prerogative not only in terms of power but also of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no
further than to satisfy the Court not that the President’s decision is
correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but arbitrariness.83 In
Integrated Bar of the Philippines, this Court further ruled that "it is
incumbent upon the petitioner to show that the President’s decision
is totally bereft of factual basis" and that if he fails, by way of proof,
to support his assertion, then "this Court cannot undertake an
independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the
calling-out power, by issuing PP 1017, is totally bereft of factual
basis. A reading of the Solicitor General’s Consolidated Comment
and Memorandum shows a detailed narration of the events leading
to the issuance of PP 1017, with supporting reports forming part of
the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the reproving
statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the
Philippine Army showing the growing alliance between the NPA and
the military. Petitioners presented nothing to refute such events.
Thus, absent any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo
was not expected to simply fold her arms and do nothing to prevent
or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not
stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the
President in times of emergency. A glimpse at the various political
theories relating to this subject provides an adequate backdrop for
our ensuing discussion.
John Locke, describing the architecture of civil government, called
upon the English doctrine of prerogative to cope with the problem
of emergency. In times of danger to the nation, positive law enacted
by the legislature might be inadequate or even a fatal obstacle to
the promptness of action necessary to avert catastrophe. In these
situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription
of the law and sometimes even against it."84 But Locke recognized
that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that "the people have no other remedy
in this, as in all other cases where they have no judge on earth, but
to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary
suspension of democratic processes of government in time of
emergency. According to him:
The inflexibility of the laws, which prevents them from adopting
themselves to circumstances, may, in certain cases, render them
disastrous and make them bring about, at a time of crisis, the ruin of
the State…
It is wrong therefore to wish to make political institutions as strong
as to render it impossible to suspend their operation. Even Sparta
allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an
obstacle to their preservation, the method is to nominate a
supreme lawyer, who shall silence all the laws and suspend for a
moment the sovereign authority. In such a case, there is no doubt
about the general will, and it clear that the people’s first intention is
that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or
"supreme magistracy" as he termed it. For him, it would more likely
be cheapened by "indiscreet use." He was unwilling to rely upon an
"appeal to heaven." Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative
government: "I am far from condemning, in cases of extreme
necessity, the assumption of absolute power in the form of a
temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in
the whole scheme of limited government, furnished an ironic
contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to
resort to extra –constitutional measures; for although they may for
a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little
while be disregarded under that pretext but for evil purposes. Thus,
no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for
applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to
incorporate into the constitution a regularized system of standby
emergency powers to be invoked with suitable checks and controls
in time of national danger. He attempted forthrightly to meet the
problem of combining a capacious reserve of power and speed and
vigor in its application in time of emergency, with effective
constitutional restraints.90
Contemporary political theorists, addressing themselves to the
problem of response to emergency by constitutional democracies,
have employed the doctrine of constitutional dictatorship.91
Frederick M. Watkins saw "no reason why absolutism should not be
used as a means for the defense of liberal institutions," provided it
"serves to protect established institutions from the danger of
permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political
life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance:
increasing administrative powers of the executive, while at the same
time "imposing limitation upon that power."93 Watkins placed his
real faith in a scheme of constitutional dictatorship. These are the
conditions of success of such a dictatorship: "The period of
dictatorship must be relatively short…Dictatorship should always be
strictly legitimate in character…Final authority to determine the
need for dictatorship in any given case must never rest with the
dictator himself…"94 and the objective of such an emergency
dictatorship should be "strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of
Watkins.95 "It is a problem of concentrating power – in a
government where power has consciously been divided – to cope
with… situations of unprecedented magnitude and gravity. There
must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how
long, and to what end."96 Friedrich, too, offered criteria for judging
the adequacy of any of scheme of emergency powers, to wit: "The
emergency executive must be appointed by constitutional means –
i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of
emergency action must be the defense of the constitutional
order."97
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and
the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems
presented by emergency.98 Like Watkins and Friedrich, he stated a
priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its constitutional
order…
2) …the decision to institute a constitutional dictatorship should
never be in the hands of the man or men who will constitute the
dictator…
3) No government should initiate a constitutional dictatorship
without making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded,
no regular procedure altered any more than is absolutely necessary
for the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect…
7) The dictatorship should be carried on by persons representative
of every part of the citizenry interested in the defense of the
existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action
taken under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or
men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions
existing prior to the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight
exercise of emergency powers than did Watkins. He would secure to
Congress final responsibility for declaring the existence or
termination of an emergency, and he places great faith in the
effectiveness of congressional investigating committees.100
Scott and Cotter, in analyzing the above contemporary theories in
light of recent experience, were one in saying that, "the suggestion
that democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory." To appraise emergency power in
terms of constitutional dictatorship serves merely to distort the
problem and hinder realistic analysis. It matters not whether the
term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension
of the processes of constitutionalism. Thus, they favored instead the
"concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the
analysis of problems of emergency powers, and which is consistent
with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some
indeterminate limitations upon the substantive powers of
government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to
repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and
proper test of constitutionalism was the existence of adequate
processes for keeping government responsible. He refused to
equate constitutionalism with the enfeebling of government by an
exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening
of government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power
and a complete political responsibility of government to the
governed.101
In the final analysis, the various approaches to emergency of the
above political theorists –- from Lock’s "theory of prerogative," to
Watkins’ doctrine of "constitutional dictatorship" and, eventually, to
McIlwain’s "principle of constitutionalism" --- ultimately aim to solve
one real problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief Executive, while
insuring that such powers will be exercised with a sense of political
responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the
fetters of a repressive regime, the 1986 Constitutional Commission,
in drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jackson’s "balanced power
structure."102 Executive, legislative, and judicial powers are
dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has
the monopoly of power in times of emergency. Each branch is given
a role to serve as limitation or check upon the other. This system
does not weaken the President, it just limits his power, using the
language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount
of faith in the basic integrity and wisdom of the Chief Executive but,
at the same time, it obliges him to operate within carefully
prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is
uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool
developed for testing "on their faces" statutes in free speech cases,
also known under the American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to
speech or even speech-related conduct. It is actually a call upon the
AFP to prevent or suppress all forms of lawless violence. In United
States v. Salerno,104 the US Supreme Court held that "we have not
recognized an ‘overbreadth’ doctrine outside the limited context of
the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the
validity of a law that "reflects legitimate state interest in
maintaining comprehensive control over harmful, constitutionally
unprotected conduct." Undoubtedly, lawless violence, insurrection
and rebellion are considered "harmful" and "constitutionally
unprotected conduct." In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law
may properly be held void on its face and when ‘such summary
action’ is inappropriate. But the plain import of our cases is, at the
very least, that facial overbreadth adjudication is an exception to
our traditional rules of practice and that its function, a limited one
at the outset, attenuates as the otherwise unprotected behavior
that it forbids the State to sanction moves from ‘pure speech’
toward conduct and that conduct –even if expressive – falls within
the scope of otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls over harmful,
constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving
statutes which, by their terms, seek to regulate only "spoken words"
and again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are
sought to be applied to protected conduct."106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of
conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as "manifestly
strong medicine," to be used "sparingly and only as a last resort,"
and is "generally disfavored;"107 The reason for this is obvious.
Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be
applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally to others, i.e., in
other situations not before the Court.108 A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In
overbreadth analysis, those rules give way; challenges are permitted
to raise the rights of third parties; and the court invalidates the
entire statute "on its face," not merely "as applied for" so that the
overbroad law becomes unenforceable until a properly authorized
court construes it more narrowly. The factor that motivates courts
to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties
not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine
will require the Court to examine PP 1017 and pinpoint its flaws and
defects, not on the basis of its actual operation to petitioners, but
on the assumption or prediction that its very existence may cause
others not before the Court to refrain from constitutionally
protected speech or expression. In Younger v. Harris,109 it was held
that:
[T]he task of analyzing a proposed statute, pinpointing its
deficiencies, and requiring correction of these deficiencies before
the statute is put into effect, is rarely if ever an appropriate task for
the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes,...ordinarily results
in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the
most difficult challenge to mount successfully, since the challenger
must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show
whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness
doctrine" which holds that "a law is facially invalid if men of
common intelligence must necessarily guess at its meaning and
differ as to its application."110 It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool
for testing "on their faces" statutes in free speech cases. And like
overbreadth, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all
its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP
1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three
important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII …
do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of insurrection
or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or upon my
direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby
declare a State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In
Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice
Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist
and public safety requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of the
writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of
graduated powers. From the most to the least benign, these are: the
calling-out power, the power to suspend the privilege of the writ of
habeas corpus, and the power to declare Martial Law. Citing
Integrated Bar of the Philippines v. Zamora,112 the Court ruled that
the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP 1017. Owing to her
Office’s vast intelligence network, she is in the best position to
determine the actual condition of the country.
Under the calling-out power, the President may summon the armed
forces to aid him in suppressing lawless violence, invasion and
rebellion. This involves ordinary police action. But every act that
goes beyond the President’s calling-out power is considered illegal
or ultra vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between
the President’s authority to declare a "state of rebellion" (in
Sanlakas) and the authority to proclaim a state of national
emergency. While President Arroyo’s authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the
statutory authority cited in Sanlakas was Section 4, Chapter 2, Book
II of the Revised Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation
is made to depend, shall be promulgated in proclamations which
shall have the force of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely
an act declaring a status or condition of public moment or interest, a
declaration allowed under Section 4 cited above. Such declaration,
in the words of Sanlakas, is harmless, without legal significance, and
deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion
or rebellion. She also relied on Section 17, Article XII, a provision on
the State’s extraordinary power to take over privately-owned public
utility and business affected with public interest. Indeed, PP 1017
calls for the exercise of an awesome power. Obviously, such
Proclamation cannot be deemed harmless, without legal
significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is
actually a declaration of Martial Law. It is no so. What defines the
character of PP 1017 are its wordings. It is plain therein that what
the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the
military power has been called upon by the executive to assist in the
maintenance of law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment, not commit any
acts which will in any way render more difficult the restoration of
order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on
March 13, 2006, Mr. Justice Vicente V. Mendoza,114 an authority in
constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the
most severe threat to civil liberties. It is a strong medicine which
should not be resorted to lightly. It cannot be used to stifle or
persecute critics of the government. It is placed in the keeping of
the President for the purpose of enabling him to secure the people
from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of
Martial Law. It is no more than a call by the President to the armed
forces to prevent or suppress lawless violence. As such, it cannot be
used to justify acts that only under a valid declaration of Martial Law
can be done. Its use for any other purpose is a perversion of its
nature and scope, and any act done contrary to its command is ultra
vires.
Justice Mendoza further stated that specifically, (a) arrests and
seizures without judicial warrants; (b) ban on public assemblies; (c)
take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised
by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas
corpus.
Based on the above disquisition, it is clear that PP 1017 is not a
declaration of Martial Law. It is merely an exercise of President
Arroyo’s calling-out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to
ensure that the laws be faithfully executed. This is based on Section
17, Article VII which reads:
SEC. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed.
As the Executive in whom the executive power is vested,115 the
primary function of the President is to enforce the laws as well as to
formulate policies to be embodied in existing laws. He sees to it that
all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath
or affirmation to the effect that as President of the Philippines, he
will, among others, "execute its laws."116 In the exercise of such
function, the President, if needed, may employ the powers attached
to his office as the Commander-in-Chief of all the armed forces of
the country,117 including the Philippine National Police118 under
the Department of Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero,
Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and
Josel Virador argue that PP 1017 is unconstitutional as it arrogated
upon President Arroyo the power to enact laws and decrees in
violation of Section 1, Article VI of the Constitution, which vests the
power to enact laws in Congress. They assail the clause "to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
\ orders.
Petitioners’ contention is understandable. A reading of PP 1017
operative clause shows that it was lifted120 from Former President
Marcos’ Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII,
Section 10, Paragraph (2) of the Constitution, do hereby place the
entire Philippines as defined in Article 1, Section 1 of the
Constitution under martial law and, in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act
of insurrection or rebellion and to enforce obedience to all the laws
and decrees, orders and regulations promulgated by me personally
or upon my direction.
We all know that it was PP 1081 which granted President Marcos
legislative power. Its enabling clause states: "to enforce obedience
to all the laws and decrees, orders and regulations promulgated by
me personally or upon my direction." Upon the other hand, the
enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate
"decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and
decrees x x x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book
III of Executive Order No. 292 (Administrative Code of 1987). She
may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules
of a general or permanent character in implementation or execution
of constitutional or statutory powers shall be promulgated in
executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate
to particular aspect of governmental operations in pursuance of his
duties as administrative head shall be promulgated in administrative
Sec. 4. Proclamations. — Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon
the existence of which the operation of a specific law or regulation
is made to depend, shall be promulgated in proclamations which
shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which
only concern a particular officer or office of the Government shall be
embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters
relating to internal administration, which the President desires to
bring to the attention of all or some of the departments, agencies,
bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the
President in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing
issuances. She cannot issue decrees similar to those issued by
Former President Marcos under PP 1081. Presidential Decrees are
laws which are of the same category and binding force as statutes
because they were issued by the President in the exercise of his
legislative power during the period of Martial Law under the 1973
Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar
as it grants President Arroyo the authority to promulgate "decrees."
Legislative power is peculiarly within the province of the Legislature.
Section 1, Article VI categorically states that "[t]he legislative power
shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives." To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can
justify President Arroyo’s exercise of legislative power by issuing
decrees.
Can President Arroyo enforce obedience to all decrees and laws
through the military?
As this Court stated earlier, President Arroyo has no authority to
enact decrees. It follows that these decrees are void and, therefore,
cannot be enforced. With respect to "laws," she cannot call the
military to enforce or implement certain laws, such as customs laws,
laws governing family and property relations, laws on obligations
and contracts and the like. She can only order the military, under PP
1017, to enforce laws pertinent to its duty to suppress lawless
violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees,
orders, and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article XII of the
Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the
state of national emergency under PP 1017, can call the military not
only to enforce obedience "to all the laws and to all decrees x x x"
but also to act pursuant to the provision of Section 17, Article XII
which reads:
Sec. 17. In times of national emergency, when the public interest so
requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately-owned public utility or business
affected with public interest.
What could be the reason of President Arroyo in invoking the above
provision when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any
authority or delegation from Congress, to take over or direct the
operation of any privately-owned public utility or business affected
with public interest.
This provision was first introduced in the 1973 Constitution, as a
product of the "martial law" thinking of the 1971 Constitutional
Convention.122 In effect at the time of its approval was President
Marcos’ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the
management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the
National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and) Filipinas
Orient Airways . . . for the successful prosecution by the
Government of its effort to contain, solve and end the present
national emergency."
Petitioners, particularly the members of the House of
Representatives, claim that President Arroyo’s inclusion of Section
17, Article XII in PP 1017 is an encroachment on the legislature’s
emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to
declare "a state of national emergency" and to exercise emergency
powers. To the first, as elucidated by the Court, Section 18, Article
VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold
constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in
joint session assembled, voting separately, shall have the sole power
to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may,
by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary
and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above
provision refers not only to war but also to "other national
emergency." If the intention of the Framers of our Constitution was
to withhold from the President the authority to declare a "state of
national emergency" pursuant to Section 18, Article VII (calling-out
power) and grant it to Congress (like the declaration of the existence
of a state of war), then the Framers could have provided so. Clearly,
they did not intend that Congress should first authorize the
President before he can declare a "state of national emergency."
The logical conclusion then is that President Arroyo could validly
declare the existence of a state of national emergency even in the
absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of
privately owned public utility or business affected with public
interest, is a different matter. This requires a delegation from
Congress.
Courts have often said that constitutional provisions in pari materia
are to be construed together. Otherwise stated, different clauses,
sections, and provisions of a constitution which relate to the same
subject matter will be construed together and considered in the
light of each other.123 Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to
delegate such powers to the President. Certainly, a body cannot
delegate a power not reposed upon it. However, knowing that
during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency
powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the
emergency powers clause. The taking over of private business
affected with public interest is just another facet of the emergency
powers generally reposed upon Congress. Thus, when Section 17
states that the "the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately owned public utility or business
affected with public interest," it refers to Congress, not the
President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof.
Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he
did, it must be found in some provision of the Constitution. And it is
not claimed that express constitutional language grants this power
to the President. The contention is that presidential power should
be implied from the aggregate of his powers under the Constitution.
Particular reliance is placed on provisions in Article II which say that
"The executive Power shall be vested in a President . . . .;" that "he
shall take Care that the Laws be faithfully executed;" and that he
"shall be Commander-in-Chief of the Army and Navy of the United
States.
The order cannot properly be sustained as an exercise of the
President’s military power as Commander-in-Chief of the Armed
Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in
day-to-day fighting in a theater of war. Such cases need not concern
us here. Even though "theater of war" be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor
disputes from stopping production. This is a job for the nation’s
lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the
President. In the framework of our Constitution, the President’s
power to see that the laws are faithfully executed refutes the idea
that he is to be a lawmaker. The Constitution limits his functions in
the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is
neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that
"All legislative Powers herein granted shall be vested in a Congress
of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term
"emergency" under Section 17, Article XII refers to "tsunami,"
"typhoon," "hurricane"and"similar occurrences." This is a limited
view of "emergency."
Emergency, as a generic term, connotes the existence of conditions
suddenly intensifying the degree of existing danger to life or well-
being beyond that which is accepted as normal. Implicit in this
definitions are the elements of intensity, variety, and
perception.127 Emergencies, as perceived by legislature or
executive in the United Sates since 1933, have been occasioned by a
wide range of situations, classifiable under three (3) principal heads:
a) economic,128 b) natural disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same
breadth. It may include rebellion, economic crisis, pestilence or
epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.131 This is evident in the Records
of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national
emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily
take over or direct the operation of any privately owned public
utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes.
What about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they
would paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency"
refers to military national emergency or could this be economic
emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress
may not be able to convene and, therefore, unable to delegate to
the President the power to take over privately-owned public utility
or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative
power, through which extraordinary measures are exercised,
remains in Congress even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of
the system of the separation of powers, the fact remains that the
Constitution has set up this form of government, with all its defects
and shortcomings, in preference to the commingling of powers in
one man or group of men. The Filipino people by adopting
parliamentary government have given notice that they share the
faith of other democracy-loving peoples in this system, with all its
faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not
excepting periods of crisis no matter how serious. Never in the
history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the
legislative branch of enacting laws been surrendered to another
department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even
when that Republic was fighting a total war, or when it was engaged
in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of
extreme perils more than in normal circumstances ‘the various
branches, executive, legislative, and judicial,’ given the ability to act,
are called upon ‘to perform the duties and discharge the
responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by
President Arroyo in issuing PP 1017, this Court rules that such
Proclamation does not authorize her during the emergency to
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without
authority from Congress.
Let it be emphasized that while the President alone can declare a
state of national emergency, however, without legislation, he has no
power to take over privately-owned public utility or business
affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of
privately-owned public utility or business affected with public
interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the
President has no power to point out the types of businesses
affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the
State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which
pertains to security, is that military necessity and the guaranteed
rights of the individual are often not compatible. Our history reveals
that in the crucible of conflict, many rights are curtailed and
trampled upon. Here, the right against unreasonable search and
seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of
Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on
February 24, 2006, they were arrested without warrants on their
way to EDSA to celebrate the 20th Anniversary of People Power I.
The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune
Publishing Co., Inc. claimed that on February 25, 2006, the CIDG
operatives "raided and ransacked without warrant" their office.
Three policemen were assigned to guard their office as a possible
"source of destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al.
alleged that their members were "turned away and dispersed" when
they went to EDSA and later, to Ayala Avenue, to celebrate the 20th
Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said
petitioners shows that they resulted from the implementation,
pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5
on the basis of these illegal acts? In general, does the illegal
implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may
afford an opportunity for abuse in the manner of application.136
The validity of a statute or ordinance is to be determined from its
general purpose and its efficiency to accomplish the end desired,
not from its effects in a particular case.137 PP 1017 is merely an
invocation of the President’s calling-out power. Its general purpose
is to command the AFP to suppress all forms of lawless violence,
invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in
PP 1017 allowing the police, expressly or impliedly, to conduct illegal
arrest, search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on
the ground that its implementor committed illegal acts? The answer
is no. The criterion by which the validity of the statute or ordinance
is to be measured is the essential basis for the exercise of power,
and not a mere incidental result arising from its exertion.138 This is
logical. Just imagine the absurdity of situations when laws maybe
declared unconstitutional just because the officers implementing
them have acted arbitrarily. If this were so, judging from the
blunders committed by policemen in the cases passed upon by the
Court, majority of the provisions of the Revised Penal Code would
have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions
of PP 1017. General orders are "acts and commands of the President
in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines." They are internal rules issued by the executive officer
to his subordinates precisely for the proper and efficient
administration of law. Such rules and regulations create no relation
except between the official who issues them and the official who
receives them.139 They are based on and are the product of, a
relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be
valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out
the "necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our
statutes and the Constitution, and which is invariably associated
with "invasion, insurrection or rebellion," the phrase "acts of
terrorism" is still an amorphous and vague concept. Congress has
yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed
definition of terrorism" confronts not only our country, but the
international community as well. The following observations are
quite apropos:
In the actual unipolar context of international relations, the "fight
against terrorism" has become one of the basic slogans when it
comes to the justification of the use of force against certain states
and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and
constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic
interests.
The basic problem underlying all these military actions – or threats
of the use of force as the most recent by the United States against
Iraq – consists in the absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization
of acts of violence either by states, by armed groups such as
liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country’s
terrorist is another country’s freedom fighter." The apparent
contradiction or lack of consistency in the use of the term
"terrorism" may further be demonstrated by the historical fact that
leaders of national liberation movements such as Nelson Mandela in
South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists
by those who controlled the territory at the time, but later became
internationally respected statesmen.
What, then, is the defining criterion for terrorist acts – the
differentia specifica distinguishing those acts from eventually
legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has
been trying in vain to reach a consensus on the basic issue of
definition. The organization has intensified its efforts recently, but
has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against
civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate
use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a
state is concerned.
The dilemma facing the international community can best be
illustrated by reference to the contradicting categorization of
organizations and movements such as Palestine Liberation
Organization (PLO) – which is a terrorist group for Israel and a
liberation movement for Arabs and Muslims – the Kashmiri
resistance groups – who are terrorists in the perception of India,
liberation fighters in that of Pakistan – the earlier Contras in
Nicaragua – freedom fighters for the United States, terrorists for the
Socialist camp – or, most drastically, the Afghani Mujahedeen (later
to become the Taliban movement): during the Cold War period they
were a group of freedom fighters for the West, nurtured by the
United States, and a terrorist gang for the Soviet Union. One could
go on and on in enumerating examples of conflicting categorizations
that cannot be reconciled in any way – because of opposing political
interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting
perceptions and evaluations of one and the same group and its
actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a
given territory, the definition of terrorism will "fluctuate"
accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will
therefore speak of a "liberation struggle," not of "terrorism" when
acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a
decision on the definition of terrorism exactly because of these
conflicting interests of sovereign states that determine in each and
every instance how a particular armed movement (i.e. a non-state
actor) is labeled in regard to the terrorists-freedom fighter
dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of
sovereign states – and not of peoples, in spite of the emphasis in the
Preamble to the United Nations Charter! – has become even more
serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even
more acute since the terrorist attacks of 11 September 2001 I the
United States.141
The absence of a law defining "acts of terrorism" may result in
abuse and oppression on the part of the police or military. An
illustration is when a group of persons are merely engaged in a
drinking spree. Yet the military or the police may consider the act as
an act of terrorism and immediately arrest them pursuant to G.O.
No. 5. Obviously, this is abuse and oppression on their part. It must
be remembered that an act can only be considered a crime if there
is a law defining the same as such and imposing the corresponding
penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws,
i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President
Marcos during the Martial Law regime. This decree is entitled
"Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word
"terrorism" is mentioned in the following provision: "That one who
conspires with any other person for the purpose of overthrowing
the Government of the Philippines x x x by force, violence,
terrorism, x x x shall be punished by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the
Communist Party of the Philippines) enacted by President Corazon
Aquino on May 5, 1985. These two (2) laws, however, do not define
"acts of terrorism." Since there is no law defining "acts of
terrorism," it is President Arroyo alone, under G.O. No. 5, who has
the discretion to determine what acts constitute terrorism. Her
judgment on this aspect is absolute, without restrictions.
Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies and
gatherings unfriendly to the administration. All these can be
effected in the name of G.O. No. 5. These acts go far beyond the
calling-out power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares that the
"acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military
or police to commit acts beyond what are necessary and
appropriate to suppress and prevent lawless violence, the limitation
of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be
secured in their persons, houses, papers and effects against
unreasonable search and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized."142 The plain import of the language of the
Constitution is that searches, seizures and arrests are normally
unreasonable unless authorized by a validly issued search warrant
or warrant of arrest. Thus, the fundamental protection given by this
provision is that between person and police must stand the
protective authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts
are established: first, he was arrested without warrant; second, the
PNP operatives arrested him on the basis of PP 1017; third, he was
brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth,he was
treated brusquely by policemen who "held his head and tried to
push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he
was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies
petitioner David’s warrantless arrest. During the inquest for the
charges of inciting to sedition and violation of BP 880, all that the
arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective "Oust Gloria Now"
and their erroneous assumption that petitioner David was the
leader of the rally.146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient
to charge him with inciting to sedition. Further, he also stated that
there is insufficient evidence for the charge of violation of BP 880 as
it was not even known whether petitioner David was the leader of
the rally.147
But what made it doubly worse for petitioners David et al. is that
not only was their right against warrantless arrest violated, but also
their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet
peaceably for consultation in respect to public affairs. It is a
necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of
expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not
subject to previous restraint or censorship. It may not be
conditioned upon the prior issuance of a permit or authorization
from the government authorities except, of course, if the assembly
is intended to be held in a public place, a permit for the use of such
place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested
while they were exercising their right to peaceful assembly. They
were not committing any crime, neither was there a showing of a
clear and present danger that warranted the limitation of that right.
As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the
Solicitor General, during the oral argument, failed to justify the
arresting officers’ conduct. In De Jonge v. Oregon,148 it was held
that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime.
The holding of meetings for peaceable political action cannot be
proscribed. Those who assist in the conduct of such meetings
cannot be branded as criminals on that score. The question, if the
rights of free speech and peaceful assembly are not to be preserved,
is not as to the auspices under which the meeting was held but as to
its purpose; not as to the relations of the speakers, but whether
their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in
a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But
it is a different matter when the State, instead of prosecuting them
for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal
charge.
On the basis of the above principles, the Court likewise considers
the dispersal and arrest of the members of KMU et al. (G.R. No.
171483) unwarranted. Apparently, their dispersal was done merely
on the basis of Malacañang’s directive canceling all permits
previously issued by local government units. This is arbitrary. The
wholesale cancellation of all permits to rally is a blatant disregard of
the principle that "freedom of assembly is not to be limited, much
less denied, except on a showing of a clear and present danger of a
substantive evil that the State has a right to prevent."149 Tolerance
is the rule and limitation is the exception. Only upon a showing that
an assembly presents a clear and present danger that the State may
deny the citizens’ right to exercise it. Indeed, respondents failed to
show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and
rallies is lodged with the local government units. They have the
power to issue permits and to revoke such permits after due notice
and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard
on the revocation of their permits.150 The first time they learned of
it was at the time of the dispersal. Such absence of notice is a fatal
defect. When a person’s right is restricted by government action, it
behooves a democratic government to see to it that the restriction
is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of
freedom of speech i.e., the freedom of the press. Petitioners’
narration of facts, which the Solicitor General failed to refute,
established the following: first, the Daily Tribune’s offices were
searched without warrant;second, the police operatives seized
several materials for publication; third, the search was conducted at
about 1:00 o’ clock in the morning of February 25, 2006; fourth, the
search was conducted in the absence of any official of the Daily
Tribune except the security guard of the building; and fifth,
policemen stationed themselves at the vicinity of the Daily Tribune
offices.
Thereafter, a wave of warning came from government officials.
Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards –and the standards
are if they would contribute to instability in the government, or if
they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 – we will recommend a ‘takeover.’" National
Telecommunications Commissioner Ronald Solis urged television
and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage during times
when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal
Procedure lays down the steps in the conduct of search and seizure.
Section 4 requires that a search warrant be issued upon probable
cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce. Section 8
mandates that the search of a house, room, or any other premise be
made in the presence of the lawful occupant thereof or any member
of his family or in the absence of the latter, in the presence of two
(2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be
served in the daytime, unless the property is on the person or in the
place ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night. All these
rules were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press.
The best gauge of a free and democratic society rests in the degree
of freedom enjoyed by its media. In the Burgos v. Chief of Staff152
this Court held that --
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum"
newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that
the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment
and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed
like the "Metropolitan Mail" and "We Forum" newspapers in the
above case, yet it cannot be denied that the CIDG operatives
exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity
of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the
citizen that he may speak only if allowed to do so, and no more and
no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.153 Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because of its
anti-government sentiments. This Court cannot tolerate the blatant
disregard of a constitutional right even if it involves the most defiant
of our citizens. Freedom to comment on public affairs is essential to
the vitality of a representative democracy. It is the duty of the
courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should
always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General
admitted that the search of the Tribune’s offices and the seizure of
its materials for publication and other papers are illegal; and that
the same are inadmissible "for any purpose," thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the
policemen, when inspected the Tribune for the purpose of gathering
evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these
clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I
think and I know, Your Honor, and these are inadmissible for any
purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all
you have to do is to get those past issues. So why do you have to go
there at 1 o’clock in the morning and without any search warrant?
Did they become suddenly part of the evidence of rebellion or
inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my
instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based
on any law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is
nothing in 1017 which says that the police could go and inspect and
gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it
is premature to say this, we do not condone this. If the people who
have been injured by this would want to sue them, they can sue and
there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the
police were, according to the Solicitor General, illegal and cannot be
condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your
theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal
or unlawful acts committed on the occasion of 1017, as I said, it
cannot be condoned. You cannot blame the President for, as you
said, a misapplication of the law. These are acts of the police
officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are
constitutional in every aspect and "should result in no constitutional
or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances.
Its ratiocination has been exhaustively presented. At this point,
suffice it to reiterate that PP 1017 is limited to the calling out by the
President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant
to G.O. No. 5, the military and the police committed acts which
violate the citizens’ rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring
opinion, attached hereto, is considered an integral part of this
ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case moot
and academic. However, while PP 1017 was still operative, illegal
acts were committed allegedly in pursuance thereof. Besides, there
is no guarantee that PP 1017, or one similar to it, may not again be
issued. Already, there have been media reports on April 30, 2006
that allegedly PP 1017 would be reimposed "if the May 1 rallies"
become "unruly and violent." Consequently, the transcendental
issues raised by the parties should not be "evaded;" they must now
be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as
it constitutes a call by the President for the AFP to prevent or
suppress lawless violence. The proclamation is sustained by Section
18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017’s extraneous provisions giving
the President express or implied power (1) to issue decrees; (2) to
direct the AFP to enforce obedience to all laws even those not
related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution,
the President, in the absence of a legislation, cannot take over
privately-owned public utility and private business affected with
public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order
issued by the President – acting as Commander-in-Chief – addressed
to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard – that the military and
the police should take only the "necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence."But
the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus
be deemed deleted from the said G.O. While "terrorism" has been
denounced generally in media, no law has been enacted to guide
the military, and eventually the courts, to determine the limits of
the AFP’s authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier,
it is also pristine clear that (1) the warrantless arrest of petitioners
Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies
and warrantless arrest of the KMU and NAFLU-KMU members; (3)
the imposition of standards on media or any prior restraint on the G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which
press; and (4) the warrantless search of the Tribune offices and the the AFP and the PNP should implement PP 1017, i.e. whatever is
whimsical seizures of some articles for publication and other "necessary and appropriate actions and measures to suppress and
materials, are not authorized by the Constitution, the law and prevent acts of lawless violence." Considering that "acts of
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. terrorism" have not yet been defined and made punishable by the
No. 5. Legislature, such portion of G.O. No. 5 is declared
UNCONSTITUTIONAL.
Other than this declaration of invalidity, this Court cannot impose
any civil, criminal or administrative sanctions on the individual The warrantless arrest of Randolf S. David and Ronald Llamas; the
police officers concerned. They have not been individually identified dispersal and warrantless arrest of the KMU and NAFLU-KMU
and given their day in court. The civil complaints or causes of action members during their rallies, in the absence of proof that these
and/or relevant criminal Informations have not been presented petitioners were committing acts constituting lawless violence,
before this Court. Elementary due process bars this Court from invasion or rebellion and violating BP 880; the imposition of
making any specific pronouncement of civil, criminal or standards on media or any form of prior restraint on the press, as
administrative liabilities. well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are
It is well to remember that military power is a means to an end and declared UNCONSTITUTIONAL.
substantive civil rights are ends in themselves. How to give the
military the power it needs to protect the Republic without No costs.
unnecessarily trampling individual rights is one of the eternal
balancing tasks of a democratic state.During emergency, SO ORDERED.
governmental action may vary in breadth and intensity from normal
times, yet they should not be arbitrary as to unduly restrain our
people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who
studied the various competing political philosophies is that, it is
possible to grant government the authority to cope with crises
without surrendering the two vital principles of constitutionalism:
the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that
PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by
President Gloria Macapagal-Arroyo on the AFP to prevent or
suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless
violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or
business affected with public interest without prior legislation.
SECOND DIVISION
G.R. No. 193247 September 14, 2011
SERGIO I. CARBONILLA, EMILIO Y. LEGASPI IV, and ADONAIS Y.
REJUSO, Petitioners,
vs.
BOARD OF AIRLINES REPRESENTATIVES (MEMBER AIRLINES: ASIANA
AIRLINES, CATHAY PACIFIC AIRWAYS, CHINA AIRLINES, CEBU PACIFIC
AIRLINES, CHINA SOUTHERN AIRLINES, CONTINENTAL MICRONESIA
AIRLINES, EMIRATES, ETIHAD AIRWAYS, EVA AIR AIRWAYS, FEDERAL
EXPRESS CORPORATION, GULF AIR, JAPAN AIRLINES, AIR FRANCE-
KLM ROYAL DUTCH AIRLINES, KOREAN AIR, KUWAIT AIRWAYS
CORPORATION, LUFTHANSA GERMAN AIRLINES, MALAYSIA
AIRLINES, NORTHWEST AIRLINES, PHILIPPINE AIRLINES, INC.,
QANTAS AIRWAYS, LTD., QATAR AIRLINES, ROYAL BRUNEI AIRLINES,
SINGAPORE AIRLINES, SWISS INTERNATIONAL AIRLINES, LTD., SAUDI
ARABIAN AIRLINES, and THAI INTERNATIONAL AIRWAYS
Respondents.
x - - - - - - - - - - - - - - -x
G.R. No. 194276
OFFICE OF THE PRESIDENT, represented by HON. PAQUITO N.
OCHOA,* in his capacity as EXECUTIVE SECRETARY, DEPARTMENT OF
FINANCE, represented by HON. CESAR V. PURISIMA** in his capacity
as SECRETARY OF FINANCE, and THE BUREAU OF CUSTOMS,
represented by HON. ANGELITO A. ALVAREZ**** in his capacity as
COMMISSIONER OF CUSTOMS, Petitioners,
vs.
BOARD OF AIRLINES REPRESENTATIVES (MEMBER AIRLINES: ASIANA
AIRLINES, CATHAY PACIFIC AIRWAYS, CHINA AIRLINES, CEBU PACIFIC
AIRLINES, CHINA SOUTHERN AIRLINES, CONTINENTAL MICRONESIA
AIRLINES, EMIRATES, ETIHAD AIRWAYS, EVA AIR AIRWAYS, FEDERAL
EXPRESS CORPORATION, GULF AIR, JAPAN AIRLINES, AIR FRANCE-
KLM ROYAL DUTCH AIRLINES, KOREAN AIR, KUWAIT AIRWAYS
CORPORATION, LUFTHANSA GERMAN AIRLINES, MALAYSIA
AIRLINES, NORTHWEST AIRLINES, PHILIPPINE AIRLINES, INC.,
QANTAS AIRWAYS, LTD., QATAR AIRLINES, ROYAL BRUNEI AIRLINES,
SINGAPORE AIRLINES, SWISS INTERNATIONAL AIRLINES, LTD., SAUDI
ARABIAN AIRLINES, and THAI INTERNATIONAL AIRWAYS),
Respondents.
DECISION
CARPIO, J.:
The Cases
Before the Court are two petitions for review1 assailing the
Decision2 promulgated on 9 July 2009 by the Court of Appeals in CA-
G.R. SP No. 103250.
In G.R. No. 193247, petitioners Sergio I. Carbonilla, Emilio Y. Legaspi
IV, and Adonais Y. Rejuso (Carbonilla, et al.) assail the Resolution3
promulgated on 5 August 2010 by the Court of Appeals in CA-G.R. SP
No. 103250.
In G.R. No. 194276, petitioners Office of the President, represented
by Paquito N. Ochoa in his capacity as Executive Secretary,
Department of Finance, represented by Cesar V. Purisima in his
capacity as Secretary of Finance, and the Bureau of Customs (BOC),
represented by Angelito A. Alvarez in his capacity as Commissioner
of Customs (Office of the President, et al.), assail the Resolution4
promulgated on 26 October 2010 by the Court of Appeals in CA-G.R.
SP No. 103250.
The Antecedent Facts
The facts, as gathered from the assailed Decision of the Court of
Appeals, are as follows:
The Bureau of Customs5 issued Customs Administrative Order No.
1-2005 (CAO 1-2005) amending CAO 7-92.6 The Department of
Finance7 approved CAO 1-2005 on 9 February 2006. CAO 7-92 and
CAO 1-2005 were promulgated pursuant to Section 35068 in
relation to Section 6089 of the Tariff and Customs Code of the
Philippines (TCCP).
Petitioners Office of the President, et al. alleged that prior to the
amendment of CAO 7-92, the BOC created on 23 April 2002 a
committee to review the overtime pay of Customs personnel in
Ninoy Aquino International Airport (NAIA) and to propose its
adjustment from the exchange rate of ₱25 to US$1 to the then
exchange rate of ₱55 to US$1. The Office of the President, et al.
alleged that for a period of more than two years from the creation
of the committee, several meetings were conducted with the
agencies concerned, including respondent Board of Airlines
Representatives (BAR), to discuss the proposed rate adjustment that
would be embodied in an Amendatory Customs Administrative
Order.
On the other hand, BAR alleged that it learned of the proposed
increase in the overtime rates only sometime in 2004 and only
through unofficial reports.
On 23 August 2004, BAR wrote a letter addressed to Edgardo L. De
Leon, Chief, Bonded Warehouse Division, BOC-NAIA, informing the
latter of its objection to the proposed increase in the overtime
rates. BAR further requested for a meeting to discuss the matter.
BAR wrote the Secretary of Finance on 31 January 2005 and 21
February 2005 reiterating its concerns against the issuance of CAO
1-2005. In a letter dated 3 March 2005, the Acting District Collector
of BOC informed BAR that the Secretary of Finance already
approved CAO 1-2005 on 9 February 2005. As such, the increase in
the overtime rates became effective on 16 March 2005. BAR still
requested for an audience with the Secretary of Finance which was
granted on 12 October 2005.
The BOC then sent a letter to BAR’s member airlines demanding
payment of overtime services to BOC personnel in compliance with
CAO 1-2005. The BAR’s member airlines refused and manifested
their intention to file a petition with the Commissioner of Customs
and/or the Secretary of Finance to suspend the implementation of
CAO 1-2005.
In a letter dated 31 August 2006,10 Undersecretary Gaudencio A.
Mendoza, Jr. (Usec. Mendoza), Legal and Revenue Operations
Group, Department of Finance informed BAR, through its Chairman
Felix J. Cruz (Cruz), that they "find no valid ground to disturb the
validity of CAO 1-2005, much less to suspend its implementation or
effectivity" and that its implementation effective 16 March 2005 is
legally proper.
In separate letters both dated 4 December 2006,11 Cruz requested
the Office of the President and the Office of the Executive Secretary
to review the decision of Usec. Mendoza. Cruz manifested the
objection of the International Airlines operating in the Philippines to
CAO 1-2005. On 13 December 2006, Deputy Executive Secretary
Manuel B. Gaite (Deputy Exec. Sec. Gaite) issued an Order12
requiring BAR to pay its appeal fee and submit an appeal
memorandum within 15 days from notice. BAR paid the appeal fee
and submitted its appeal memorandum on 19 January 2007.
The Decision of the Office of the President
In a Decision13 dated 12 March 2007, the Office of the President
denied the appeal of BAR and affirmed the Decision of the
Department of Finance.
The Office of the President ruled that the BOC was merely exercising
its rule-making or quasi-legislative power when it issued CAO 1-
2005. The Office of the President ruled that since CAO 1-2005 was
issued in the exercise of BOC’s rule-making or quasi-legislative
power, its validity and constitutionality may only be assailed
through a direct action before the regular courts. The Office of the
President further ruled that, assuming that BAR’s recourse before
the Office of the President was proper and in order, the appeal was
filed out of time because BAR received the letter-decision of the
Secretary of Finance on 4 September 2006 but it filed its appeal only
on 4 December 2006, beyond the 30-day period provided under
Administrative Order No. 18 dated 12 February 1987.
The Office of the President also ruled that the grounds raised by
BAR, namely, (1) the failure to comply with the publication
requirement; (2) that the foreign exchange cannot be a basis for
rate increase; and (3) that increase in rate was ill-timed, were
already deliberated during the meetings held between the BOC and
the stakeholders and were also considered by the Secretary of
Finance. The Office of the President further adopted the position of
the BOC that several public hearings and consultations were
conducted by the BOC-NAIA Collection District, which were in
substantial compliance with Section 9, Chapter I, Book VII of the
Administrative Code of 1987. BAR did not oppose the exchange rate
used in CAO 7-92 which was the exchange rate at that time and
thus, the BOC-NAIA Collection District found it strange that BAR was
questioning the fixing of the adjusted pay rates which were lower
than the rate provided under Section 3506 of the TCCP. The Office
of the President ruled that there is a legal presumption that the
rates fixed by an administrative agency are reasonable, and that the
fixing of the rates by the Government, through its authorized
agents, involved the exercise of reasonable discretion.
BAR filed a motion for reconsideration. In its Resolution14 dated 14
March 2008, the Office of the President denied BAR’s motion for
reconsideration.
BAR filed a petition for review under Rule 45 before the Court of
Appeals.
Petitioners Carbonilla, et al. filed an Omnibus Motion to Intervene
before the Court of Appeals on the ground that as customs
personnel, they would be directly affected by the outcome of the
case. Petitioners Carbonilla, et al. also adopted the Comment filed
by the Office of the Solicitor General (OSG).
The Decision of the Court of Appeals
In its 26 February 2009 Resolution,15 the Court of Appeals denied
the motion for intervention filed by Carbonilla, et al. The Court of
Appeals ruled that the petition before it involved the resolution of
whether the decision of the Office of the President was correctly
rendered. The Court of Appeals held that the intervenors’ case was
for collection of their unpaid overtime services and their interests
could not be protected or addressed in the resolution of the case.
The Court of Appeals ruled that Carbonilla, et al. should pursue their
case in a separate proceeding against the proper respondents.
Carbonilla, et al. filed a motion for reconsideration of the 26
February 2009 resolution.
Without resolving Carbonilla, et al.’s motion for reconsideration, the
Court of Appeals promulgated the assailed 9 July 2009 Decision
which set aside the 12 March 2007 Decision and 14 March 2008
Resolution of the Office of the President and declared Section 3506
of the TCCP, CAO 7-92 and CAO 1-2005 unenforceable against BAR.
Ruling that it could take cognizance of BAR’s appeal, the Court of
Appeals held that BAR could not be faulted for not filing a case
before the Court of Tax Appeals (CTA) because the Office of the
President admitted that it preempted any action before the CTA.
Deputy Exec. Sec. Gaite treated the letters of BAR as an appeal and
required it to pay appeal fee and to submit an appeal
memorandum. The Court of Appeals further ruled that what the
Office of the President treated as a decision of the Department of
Finance was merely an advisory letter dated 31 August 2006 and to
treat it as a decision from which an appeal could be taken and then
rule that it was not perfected on time would deprive BAR of its right
to due process.
The Court of Appeals further ruled that it has the power to resolve
the constitutional issue raised against CAO 7-92 and CAO 1-2005.
The Court of Appeals ruled that Section 8, Article IX(B) of the
Constitution prohibits an appointive public officer or employee from
receiving additional, double or indirect compensation, unless
specifically authorized by law. The Court of Appeals ruled that
Section 3506 of the TCCP only authorized payment of additional
compensation for overtime work, and thus, the payment of
traveling and meal allowances under CAO 7-92 and CAO 1-2005 are
unconstitutional and could not be enforced against BAR members.
The Court of Appeals ruled that Section 3506 of the TCCP failed the
completeness and sufficient standard tests to the extent that it
attempted to cover BAR members through CAO 7-92 and CAO 1-
2005. The Court of Appeals ruled that the phrase "other persons
served" did not provide for descriptive terms and conditions that
might be completely understood by the BOC. The Court of Appeals
ruled that devoid of common distinguishable characteristic, aircraft
owners and operators should not have been lumped together with
importers and shippers. The Court of Appeals also ruled that Section
3506 of the TCCP failed the sufficient standard test because it does
not contain adequate guidelines or limitations needed to map out
the boundaries of the delegate’s authority.
The dispositive portion of the Court of Appeals’ Decision reads:
WHEREFORE, the petition is GRANTED. Declaring Section 3506 of
the TCCP as well as CAO 7-92 and CAO 1-2005 to be unenforceable
as against the petitioners, the appealed Decision dated March 12,
2007 and Resolution dated March 14, 2008 are hereby SET ASIDE.
SO ORDERED.16
Petitioners Carbonilla, et al. filed their motion for reconsideration of
the 9 July 2009 Decision. In its 5 August 2010 Resolution, the Court
of Appeals, among others, denied Carbonilla, et al.’s motion for
reconsideration.
Carbonilla, et al. came to this Court via a petition for review,
docketed as G.R. No. 193247, on the following grounds:
I. The Honorable Court of Appeals seriously erred in law in ruling
that the Court of Tax Appeals did not have jurisdiction on the
subject controversy.
II. The Honorable Court of Appeals seriously erred in law in ruling
that Section 3506 of the TCCP failed the completeness and sufficient
standard tests.
III. The Honorable Court of Appeals seriously erred in law in ruling
that CAO 7-92 as amended by CAO 1-2005 as well as Section 3506 of
the TCCP are not enforceable against BAR’s members.
IV. The Honorable Court of Appeals seriously erred in law in not
ruling that estoppel and/or laches should have prevented the BAR
from questioning CAO 1-2005.
V. The Honorable Court of Appeals seriously erred in law in issuing
the decision dated July 9, 2009 in denying petitioners’ intervention
and motion for reconsideration dated August 3, 2009.17
The Office of the President, et al. also filed a motion for
reconsideration dated 28 July 2009 assailing the 9 July 2009 Decision
of the Court of Appeals.
Meanwhile, in a Resolution promulgated on 12 May 2010,18 the
Court of Appeals directed BAR to continue complying with the 12
March 2007 Decision of the Office of the President. The Court of
Appeals ruled that BAR unlawfully withheld the rightful overtime
payment of BOC employees when it stopped paying its obligations
under CAO 7-92, as amended by CAO 1-2005, since the Court of
Appeals’ 9 July 2009 Decision had not attained finality pending the
resolution of the motion for reconsideration filed by the Office of
the President, et al. BAR filed a motion for reconsideration dated 26
May 2010 for the reversal of the 12 May 2010 Resolution of the
Court of Appeals.
In a Resolution promulgated on 26 October 2010, the Court of
Appeals granted BAR’s 26 May 2010 motion for reconsideration and
denied the 28 July 2009 motion for reconsideration of the Office of
the President, et al.
The Office of the President, et al. filed a petition for review before
this Court, docketed as G.R. No. 194276, raising the following
grounds:
I. The Court of Appeals erred in giving due course to respondents
BAR and its member airlines’ petition for review because it had no
jurisdiction over the issues raised therein by respondents, to wit:
1. CAO No. 1-2005 is invalid as the increased overtime pay rates and
meal and transportation allowances fixed therein are unreasonable
and confiscatory; and
2. The act of the Bureau of Customs charging and/or collecting from
BAR’s member airlines the cost of the overtime pay and meal and
transportation allowances of Bureau of Customs (BOC) personnel in
connection with the discharge of their government duties, functions
and responsibilities is legally impermissible and, therefore, invalid.
These issues involve the validity and collection of money charges
authorized by the Customs Law and thus the Court of Tax Appeals
(CTA) has exclusive jurisdiction thereof.
I. Granting arguendo that the Court of Appeals has jurisdiction over
the said issues raised by the BAR and its member airlines, the Court
of Appeals should have dismissed their petition for review filed
under Rule 45 of the Rules of Court on the following grounds:
1. A petition for review under Ruled 43 of the Rules of Court cannot
be filed to question the quasi-legislative or rule-making power of the
Commissioner of Customs;
2. BAR’s appeal to the Office of the President questioning the 31
August 2006 Decision of the Department of Finance (DOF), finding
that CAO No. 1-2005 is valid, was filed out of time;
3. Some of respondents BAR member airlines’ country managers
who executed the verification and certification of non-forum
shopping of their petition for review did not have the necessary
authorization of the said member airlines for them to execute the
same; and
4. Administrative procedural due process was observed in the
promulgation by the Commissioner of Customs of the questioned
CAO No. 1-2005.
II. Respondents BAR and its member airlines are guilty of laches and
estoppel and thus are effectively barred from questioning the
authority of the Commissioner of Customs to promulgate pursuant
to Section 608 in relation to Section 3506 of the Tariff and Customs
Code (TCCP), as amended, not only CAO No. 1-2005, but also CAO
No. 7-92.
III. The Court of Appeals erred in going beyond the issues raised by
respondents BAR and its member airlines not only in the pleadings
filed by them in the proceedings below but also in their petition for
review.
IV. Section 3506 of the TCCP, CAO No. 1-2005 and CAO No. 7-92 are
valid. Said law and its implementing regulations neither constitute
undue delegation of legislative power nor authorize overpayment of
BOC personnel.19
The Issues
For resolution in these cases are the following issues:
1. Whether the Court of Appeals committed a reversible error in
denying the intervention of Carbonilla, et al.;
2. Whether the Court of Appeals has jurisdiction over BAR’s petition;
3. Whether BAR’s appeal before the Office of the President was filed
on time;
4. Whether the officers of some of BAR’s member airlines who
executed the verification and certification of non-forum shopping
have the necessary authorization to execute them;
5. Whether BAR was guilty of laches and/or estoppel; and
6. Whether the Court of Appeals committed a reversible error in
declaring Section 3506 of the TCCP, CAO 7-92, and CAO 1-2005
unenforceable against BAR.
The Ruling of this Court
The petition in G.R. No. 193247 has no merit while the petition in
G.R. No. 194276 is meritorious.
Intervention in G.R. No. 193247
On the matter of the intervention of Carbonilla, et al., Section 1,
Rule 19 of the 1997 Rules of Civil Procedure provides:
Section 1. Who may intervene. - A person who has a legal interest in
the matter in litigation, or in the success of either of the parties, or
an interest against both, or is so situated as to be adversely affected
by a distribution or other disposition of property in the custody of
the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether
or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not
the intervenor’s rights may be fully protected in a separate
proceeding.
Intervention is not a matter of right but it may be permitted by the
courts when the applicant shows facts which satisfy the
requirements authorizing intervention.20 In G.R. No. 193247, the
Court of Appeals denied Carbonilla, et al.’s motion for intervention
in its 26 February 2009 Resolution on the ground that the case was
for collection of unpaid overtime services and thus should be
pursued in a separate proceeding against the proper respondents. A
reading of the Carbonilla, et al.’s Omnibus Motion21 supports the
ground invoked by the Court of Appeals in denying the motion. The
Omnibus Motion states:
3. The said movants-intervenors all held offices or were stationed at
the Ninoy Aquino International Airport [NAIA] and who have all
been rendering overtime services thereat for so many years.
4. Movant-Intervenor Carbonilla has retired from government
service last September 2007 without his being paid the additional
rates set by CAO No. 1-2005 which became effective on March 16,
2007. The effectivity and implementation of the said CAO No. 1-
2005 is the main issue in this case.
5. Thus, it is noteworthy to mention that all the movants-
intervenors all rendered overtime services since March 16, 2005 or
for all the time material to the issue in this case.
6. Movants-Intervenors urgently need their respective
[differential]/back payments representing overtime services
rendered from 16 March 2005 to the present pursuant to the
implementation of CAO No. 1-2005.
7. Said differential/back payments pursuant to CAO No. 1-2005
would be of great help to the movants-intervenors considering that
as of 24 January 2008, herein movants-intervenors were stripped of
their respective overtime duties by the District Collector of Customs
at NAIA for reasons only known to the latter.
8. The full implementation of CAO No. 1-2005 would not only
benefit the cause and financial needs of herein movants-intervenors
but also that of the other 900 or so employees of the Bureau of
Customs-NAIA who are rendering overtime services thereat up to
the present.22
Clearly, Carbonilla, et al. were really after the payment of their
differential or back payments for services rendered. Hence, the
Court of Appeals correctly denied the motion for intervention.
It should be stressed that the allowance or disallowance of a motion
for intervention is addressed to the sound discretion of the
courts.23 The permissive tenor of the Rules of Court shows the
intention to give the courts the full measure of discretion in allowing
or disallowing the intervention.24 Once the courts have exercised
this discretion, it could not be reviewed by certiorari or controlled
by mandamus unless it could be shown that the discretion was
exercised in an arbitrary or capricious manner.25 Carbonilla, et al.
failed to show that the Court of Appeals rendered its resolution in
an arbitrary or capricious manner.
In addition, Carbonilla, et al. admitted in their petition that their
motion for reconsideration of the 26 February 2009 Resolution of
the Court of Appeals had been denied in open court during the oral
arguments held by the Court of Appeals on 16 December 2009.26
Carbonilla, et al. did not act on the denial of this motion but only
pursued their motion for reconsideration of the 9 July 2009 Decision
of the Court of Appeals. Hence, the denial of Carbonilla, et al.’s
motion for intervention had already attained finality.
Having ruled against the right of Carbonilla, et al. to intervene, we
see no reason to rule on the other issues they raise unless raised in
G.R. No. 194276.
We now discuss the issues raised in G.R. No. 194276.
Jurisdiction of the Court of Appeals
The Office of the President, et al. argue that the Court of Appeals
should have denied BAR’s petition because it had no jurisdiction
over the issues raised, involving the validity and collection of money
charges authorized by Customs Law, which are under the
jurisdiction of the CTA.
We do not agree.
The jurisdiction of the Court of Appeals over BAR’s petition stems
from Section 1 in relation to Section 3, Rule 43 of the 1997 Rules of
Civil Procedure which states that appeals from "awards, judgments,
final orders or resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi judicial functions[,]" which
includes the Office of the President, may be taken to the Court of
Appeals. BAR’s petition for review to the Court of Appeals from the
12 March 2007 Decision and 14 March 2008 Resolution of the Office
of the President falls within the jurisdiction of the Court of Appeals.
As noted by the Court of Appeals, the Office of the President took
cognizance of Cruz’s letter dated 4 December 2006 requesting for a
review of the 31 August 2006 letter of Usec. Mendoza. Deputy Exec.
Sec. Gaite required BAR to pay the appeal fee and submit its appeal
memorandum. Thereafter, the Office of the President issued its 12
March 2007 Decision affirming the decision of the Department of
Finance and then denied BAR’s motion for reconsideration in its 14
March 2008 Resolution. BAR’s only recourse is to file a petition for
review before the Court of Appeals under Rule 43 of the 1997 Rules
on Civil Procedure. The exercise by the Court of Appeals of its
appellate jurisdiction over the decision of the Office of the President
is entirely distinct from the issue of whether BAR committed a
procedural error in elevating the case before the Office of the
President instead of filing its appeal before the CTA.
Timeliness of the Appeal before the Office of the President
The Court of Appeals ruled that the question of whether BAR’s
appeal before the Office of the President was filed on time was
rendered academic when BAR paid the appeal fee and submitted its
appeal memorandum on time. The Court of Appeals held that
Deputy Exec. Sec. Gaite could not validly require BAR to perfect its
appeal in his 13 December 2006 Order and then rule, after its
perfection, that the appeal was not filed on time. The Court of
Appeals ruled that the 13 December 2006 Order of Deputy Exec.
Sec. Gaite stopped BAR from pursuing any recourse with the CTA.
The Court of Appeals further ruled that the Office of the President
did not explain how the 31 August 2006 letter of Usec. Mendoza
became a decision of the Secretary of Finance when it was only an
advisory letter.
We do not agree with the Court of Appeals.
The Office of the President is not precluded from issuing the
assailed decision in the same way that this Court is not proscribed
from accepting a petition before it, requiring the payment of docket
fees, directing the respondent to comment on the petition, and
after studying the case, from ruling that the petition was filed out of
time or that it lacks merit.
However, Cruz’s 4 December 2006 letters to then President Gloria
Macapagal Arroyo and then Exec. Sec. Eduardo Ermita are not in the
nature of an appeal provided for under Administrative Order No. 18,
series of 1987 (AO 18).27 Section 1 of AO 18 provides that an appeal
to the Office of the President shall be taken within 30 days from
receipt by the aggrieved party of the decision, resolution or order
complained of or appealed from. Section 2 of AO 18 cites caption,
docket number of the case as presented in the office of origin, and
addresses of the parties. Section 3 mentions pauper litigants. In
sum, the appeal provided under AO 18 refers to adversarial cases. It
does not refer to a review of administrative rules and regulations, as
what BAR asked the Office of the President to do in this case. BAR,
in writing the Office of the President, was exhausting its
administrative remedies. BAR could still go to the regular courts
after the Office of the President acted on its request for a review of
Usec. Mendoza’s 31 August 2006 letter. The decision of the Office of
the President did not foreclose BAR’s remedy to bring the matter to
the regular courts.
BAR is assailing the issuance and implementation of CAO 1-2005.
CAO 1-2005 is an amendment to CAO 7-92. CAO 7-92 was issued
"[b]y authority of Section 608, in relation to Section 3506, of the
Tariff and Customs Code of the Philippines x x x." On this score, we
do not agree with the Office of the President that BAR, instead of
filing an appeal before its office, should have filed an appeal before
the CTA in accordance with Section 7 of Republic Act No. 928228
(RA 9282) which reads:
Section 7. Jurisdiction. - The CTA shall exercise:
(a) Exclusive appellate jurisdiction, to review by appeal, as herein
provided:
xxxx
4. Decisions of the Commissioner of Customs in vases involving
liability for customs duties, fees and other money charges, seizure,
detention or release of property affected, fines forfeitures or other
penalties in relation thereto, or other matters arising under the
Customs Law or other laws administered by the Bureau of Customs.
Under Section 11 of RA 9282, an appeal to the CTA should be taken
within 30 days from receipt of the assailed decision or ruling.
However, Section 2313, Book II of Republic Act No. 1937 (RA
1937)29 provides:
Section 2313. Review of Commissioner. - The person aggrieved by
the decision or action of the Collector in any matter presented upon
protest or by his action in any case of seizure may, within fifteen
(15) days after notification on writing by the Collector of his action
or decision, file a written notice to the Collector with a copy
furnished to the Commissioner of his intention to appeal the action
or decision of the Collector to the Commissioner. Thereupon the
Collector shall forthwith transmit all the records of the proceedings
to the Commissioner, who shall approve, modify or reverse the
action or decision of the Collector and take such steps and make
such orders as may be necessary to give effect to his decision.
Provided, That when an appeal is filed beyond the period herein
prescribed, the same shall be deemed dismissed.
If in any seizure proceedings, the Collector renders a decision
adverse to the Government, such decision shall automatically be
reviewed by the Commissioner and the records of the case shall be
elevated within five (5) days from the promulgation of the decision
of the Collector. The Commissioner shall render a decision on the
automatic appeal within thirty (30) days from receipts of the records
of the case. If the Collector’s decision is reversed by the
Commissioner, the decision of the Commissioner shall be final and
executory. However, if the Collector’s decision is affirmed, or if
within thirty (30) days from receipt of the record of the case by the
Commissioner no decision is rendered of the decision involves
imported articles whose published value is five million pesos
(₱5,000,000) or more, such decision shall be deemed automatically
appealed to the Secretary of Finance and the records of the
proceedings shall be elevated within five (5) days from the
promulgation of the decision of the Commissioner or of the
Collector under appeal, as the case may be. Provided, further, That
if the decision of the Commissioner or of the Collector under appeal,
as the case may be, is affirmed by the Secretary of Finance, or if
within thirty (30) days from receipt of the records of the
proceedings by the Secretary of Finance, no decision is rendered,
the decision of the Secretary of Finance, or of the Commissioner, or
of the Collector under appeal, as the case may be, shall become final
and executory.
xxxx
Section 2402 of RA 1937 further provides:
Section 2402. Review by Court of Appeals. - The party aggrieved by a
ruling of the Commissioner in any matter brought before him upon
protest or by his action or ruling in any case of seizure may appeal to
the Court of Tax Appeals, in the manner and within the period
prescribed by law and regulations.
Clearly, what is appealable to the CTA are cases involving protest or
seizure, which is not the subject of BAR’s appeal in these cases.
BAR’s actions, including seeking an audience with the Secretary of
Finance,30 as well as writing to the Executive Secretary and the
Office of the President, are part of the administrative process to
question the validity of the issuance of an administrative regulation,
that is, of CAO 1-2005, entitled Amendments to Customs
Administrative Order No. 7-92 (Rules and Regulations Governing the
Overtime Pay and Other Compensations Related Thereto Due to
Customs Personnel at the NAIA).
CAO 1-2005 was issued pursuant to Section 608 of the TCCP which
provides:
Section 608. Commissioner to Make Rules and Regulations. - The
Commissioner shall, subject to the approval of the Secretary of
Finance, promulgate all rules and regulations necessary to enforce
the provisions of this Code. x x x
The jurisdiction over the validity and constitutionality of rules and
regulations issued by the Commissioner under Section 608 of the
TCCP lies before the regular courts. It is not within the jurisdiction of
the Office of the President or the CTA. Hence, the Office of the
President erred in holding that BAR’s appeal was filed late because
BAR can still raise the issue before the regular courts.
Verification and Certification
of Non-Forum Shopping
The Office of the President, et al. allege that the Court of Appeals
should have dismissed the petition because of BAR’s failure to
comply fully with the requirements of verification and certification
of non-forum shopping.
We agree with the Court of Appeals in its liberal interpretation of
the Rules. Verification of a pleading is a formal, not jurisdictional,
requirement.31 The requirement is simply a condition affecting the
form of the pleading and non-compliance with the requirement
does not render the pleading fatally defective.32
As regards the certification of non-forum shopping, this Court may
relax the rigid application of the rules to afford the parties the
opportunity to fully ventilate their cases on the merits.33 This is in
line with the principle that cases should be decided only after giving
all parties the chance to argue their causes and defenses.34
Technicality and procedural imperfections should not serve as basis
of decisions and should not be used to defeat the substantive rights
of the other party.35
Estoppel and Laches
The Office of the President, et al. allege that BAR is guilty of
estoppel and laches because it did not question CAO 7-92 which had
been in effect since 1992. The Office of the President, et al. argue
that a direct attack of CAO 1-2005 is a collateral attack of CAO 7-92
since CAO 7-92 is the main administrative regulation enacted to
implement Section 3506 of the TCCP.
The argument has no merit.
BAR is not questioning the validity of CAO 7-92 or Section 3506 of
the TCCP. BAR is questioning the validity of CAO 1-2005 on the
following grounds: (1) that it was approved in violation of BAR’s
right to due process because its approval did not comply with the
required publication notice under Section 9(2), Chapter I, Book VII,
of the Administrative Code of the Philippines; (2) that CAO 1-2005
inappropriately based its justification on the declining value of the
Philippine peso versus the U.S. dollar when services of the BOC are
rendered without spending any foreign currency; and (3) that the
increase in BOC rates aggravates the already high operating cost
paid by the airlines which are still reeling from the impact of
consecutive negative events such as SARS, Iraqi war, avian flu and
the unprecedented increase in fuel prices. BAR’s objection to CAO 1-
2005 could not be considered a direct attack on CAO 7-92 because
BAR was merely objecting to the amendments to CAO 7-92. BAR did
not question the validity of CAO 7-92 itself. Even during the
pendency of these cases before the Court of Appeals, BAR members
continued to pay the rates prescribed under CAO 7-92. It was only
upon the promulgation of the Court of Appeals’ Decision declaring
CAO 7-92 and CAO 1-2005 unconstitutional that BAR recommended
to its members to stop paying the charges imposed by the BOC.
Hence, BAR is not estopped from questioning CAO 1-2005 on the
ground alone that it did not question the validity of CAO 7-92.
Constitutionality of CAO 7-92, CAO 1-2005
and Section 3506 of the TCCP
The Office of the President, et al. allege that the Court of Appeals
acted beyond its jurisdiction when it passed upon the validity of
CAO 7-92 and Section 3506 of the TCCP.
We do not agree with the Office of the President, et al.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure also states:
Section 8. Questions that may be decided. - No error which does not
affect the jurisdiction over the subject matter or the validity of the
judgment appealed from or the proceedings therein, will be
considered unless stated in the assignment of errors, or closely
related to or dependent on an assigned error and properly argued in
the brief, save as the court may pass upon plain errors and clerical
errors.
The Court of Appeals deemed it necessary to rule on the issue for
the proper determination of these cases. The Court has ruled that
the Court of Appeals is imbued with sufficient authority and
discretion to review matters, not otherwise assigned as errors on
appeal, if it finds that their consideration is necessary in arriving at a
complete and just resolution of the case or to serve the interests of
justice or to avoid dispensing piecemeal justice.36 Further, while it
is true that the issue of constitutionality must be raised at the first
opportunity, this Court, in the exercise of sound discretion, can take
cognizance of the constitutional issues raised by the parties in
accordance with Section 5(2)(a), Article VII of the 1987
Constitution.37
The Court has further ruled:
When an administrative regulation is attacked for being
unconstitutional or invalid, a party may raise its unconstitutionality
or invalidity on every occasion that the regulation is being enforced.
For the Court to exercise its power of judicial review, the party
assailing the regulation must show that the question of
constitutionality has been raised at the earliest opportunity. This
requisite should not be taken to mean that the question of
constitutionality must be raised immediately after the execution of
the state action complained of. That the question of
constitutionality has not been raised before is not a valid reason for
refusing to allow it to be raised later. A contrary rule would mean
that a law, otherwise unconstitutional, would lapse into
constitutionality by the mere failure of the proper party to promptly
file a case to challenge the same.38
Section 3506 of the TCCP provides:
Section 3506. Assignment of Customs Employees to Overtime Work.
- Customs employees may be assigned by a Collector to do overtime
work at rates fixed by the Commissioner of Customs when the
service rendered is to be paid by the importers, shippers or other
persons served. The rates to be fixed shall not be less than that
prescribed by law to be paid to employees of private enterprise.
We do not agree with the Court of Appeals in excluding airline
companies, aircraft owners, and operators from the coverage of
Section 3506 of the TCCP. The term "other persons served" refers to
all other persons served by the BOC employees. Airline companies,
aircraft owners, and operators are among other persons served by
the BOC employees. As pointed out by the OSG, the processing of
embarking and disembarking from aircrafts of passengers, as well as
their baggages and cargoes, forms part of the BOC functions. BOC
employees who serve beyond the regular office hours are entitled
to overtime pay for the services they render.
The Court of Appeals ruled that, applying the principle of ejusdem
generis, airline companies, aircraft owners, and operators are not in
the same category as importers and shippers because an importer
"brings goods to the country from a foreign country and pays
custom duties" while a shipper is "one who ships goods to another;
one who engages the services of a carrier of goods; one who
tenders goods to a carrier for transportation." However, airline
passengers pass through the BOC to declare whether they are
bringing goods that need to be taxed. The passengers cannot leave
the airport of entry without going through the BOC. Clearly, airline
companies, aircraft owners, and operators are among the persons
served by the BOC under Section 3506 of the TCCP.
The overtime pay of BOC employees may be paid by any of the
following: (1) all the taxpayers in the country; (2) the airline
passengers; and (3) the airline companies which are expected to
pass on the overtime pay to passengers. If the overtime pay is taken
from all taxpayers, even those who do not travel abroad will
shoulder the payment of the overtime pay. If the overtime pay is
taken directly from the passengers or from the airline companies,
only those who benefit from the overtime services will pay for the
services rendered. Here, Congress deemed it proper that the
payment of overtime services shall be shouldered by the "other
persons served" by the BOC, that is, the airline companies. This is a
policy decision on the part of Congress that is within its discretion to
determine. Such determination by Congress is not subject to judicial
review.
We do not agree with the Court of Appeals that Section 3506 of the
TCCP failed the completeness and sufficient standard tests. Under
the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches
the delegate, the only thing he will have to do is to enforce it.39 The
second test requires adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent
the delegation from running riot.40 Contrary to the ruling of the
Court of Appeals, Section 3506 of the TCCP complied with these
requirements. The law is complete in itself that it leaves nothing
more for the BOC to do: it gives authority to the Collector to assign
customs employees to do overtime work; the Commissioner of
Customs fixes the rates; and it provides that the payments shall be
made by the importers, shippers or other persons served. Section
3506 also fixed the standard to be followed by the Commissioner of
Customs when it provides that the rates shall not be less than that publication, the BOC-NAIA still deferred BAR’s compliance until 16
prescribed by law to be paid to employees of private enterprise. March 2005.
Contrary to the ruling of the Court of Appeals, BOC employees WHEREFORE, we DENY the petition in G.R. No. 193247. We GRANT
rendering overtime services are not receiving double compensation the petition in G.R. No. 194276 and SET ASIDE the 9 July 2009
for the overtime pay, travel and meal allowances provided for under Decision and 26 October 2010 Resolution of the Court of Appeals in
CAO 7-92 and CAO 1-2005. Section 3506 provides that the rates CA-G.R. SP No. 103250. Petitioner Bureau of Customs is DIRECTED to
shall not be less than that prescribed by law to be paid to employees implement CAO 1-2005 immediately.
of private enterprise. The overtime pay, travel and meal allowances
are payment for additional work rendered after regular office hours SO ORDERED.
and do not constitute double compensation prohibited under
Section 8, Article IX(B) of the 1987 Constitution41 as they are in fact
authorized by law or Section 3506 of the TCCP.1âwphi1
BAR raises the alleged failure of BOC to publish the required notice
of public hearing and to conduct public hearings to give all parties
the opportunity to be heard prior to the issuance of CAO 1-2005 as
required under Section 9(2), Chapter I, Book VII of the
Administrative Code of the Philippines. Section 9(2) provides:
Sec. 9. Public Participation. - (1) If not otherwise required by law, an
agency shall, as far as practicable, publish or circulate notices of
proposed rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule.1âwphi1
(2) In the fixing of rates, no rule or final order shall be valid unless
the proposed rates shall have been published in a newspaper of
general circulation at least two (2) weeks before the first hearing
thereon.
(3) In cases of opposition, the rules on contested cases shall be
observed.
BAR’s argument has no merit.
The BOC created a committee to re-evaluate the proposed increase
in the rate of overtime pay and for two years, several meetings were
conducted with the agencies concerned to discuss the proposal. BAR
and the Airline Operators Council participated in these meetings and
discussions. Hence, BAR cannot claim that it was denied due process
in the imposition of the increase of the overtime rate. CAO 1-2005
was published in the Manila Standard, a newspaper of general
circulation in the Philippines on 18 February 200542 and while it
was supposed to take effect on 5 March 2005, or 15 days after its
EN BANC
G.R. No. 191560 March 29, 2011
HON. LUIS MARIO M. GENERAL, Commissioner, National Police
Commission, Petitioner,
vs.
HON. ALEJANDRO S. URRO, in his capacity as the new appointee vice
herein petitioner HON. LUIS MARIO M. GENERAL, National Police
Commission, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
HON. LUIS MARIO M. GENERAL, Commissioner, National Police
Commission, Petitioner,
vs.
President GLORIA MACAPAGAL-ARROYO, thru Executive Secretary
LEANDRO MENDOZA, in Her capacity as the appointing power, HON.
RONALDO V. PUNO, in His capacity as Secretary of the Department
of Interior and Local Government and as Ex-Officio Chairman of the
National Police Commission and HON. EDUARDO U. ESCUETA,
ALEJANDRO S. URRO, and HON. CONSTANCIA P. DE GUZMAN as the
midnight appointees, Respondents.
DECISION
BRION, J.:
Before the Court are the Consolidated Petitions for Quo Warranto,1
and Certiorari and/or Prohibition2 with urgent prayer for the
issuance of a temporary restraining order (TRO) and/or preliminary
injunction filed by Atty. Luis Mario General (petitioner). The
petitioner seeks to declare unconstitutional the appointments of
Alejandro S. Urro, Constancia P. de Guzman and Eduardo U. Escueta
(collectively, the respondents) as Commissioners of the National
Police Commission (NAPOLCOM), and to prohibit then Executive
Secretary Leandro Mendoza and Department of Interior and Local
Government (DILG) Secretary Ronaldo V. Puno from enforcing the
respondents’ oath of office. Particularly, the petitioner asks that
respondent Urro be ousted as NAPOLCOM Commissioner and he be
allowed to continue in office.
THE ANTECEDENTS
On September 20, 2004, then President Gloria Macapagal-Arroyo
(PGMA) appointed Imelda C. Roces (Roces) as acting Commissioner
of the NAPOLCOM, representing the civilian sector.3 On January 25,
2006, PGMA reappointed Roces as acting NAPOLCOM
Commissioner.4 When Roces died in September 2007, PGMA
appointed the petitioner on July 21, 20085 as acting NAPOLCOM
Commissioner in place of Roces. On the same date, PGMA
appointed Eduardo U. Escueta (Escueta) as acting NAPOLCOM
Commissioner and designated him as NAPOLCOM Vice Chairman.6
Later, PGMA appointed Alejandro S. Urro (Urro) in place of the
petitioner, Constancia P. de Guzman in place of Celia Leones, and
Escueta as permanent NAPOLCOM Commissioners. Urro’s
appointment paper is dated March 5, 2010; while the appointment
papers of De Guzman and Escueta are both dated March 8, 2010.7
On March 9, 2010, Escueta took his oath of office before Makati
Regional Trial Court Judge Alberico Umali.8
In a letter dated March 19, 2010, DILG Head Executive
Assistant/Chief-of-Staff Pascual V. Veron Cruz, Jr. issued separate
congratulatory letters to the respondents. The letter uniformly
reads.
You have just been appointed COMMISSIONER xxx National Police
Commission. xxx Attached is your appointment paper duly signed by
Her Excellency, President Macapagal Arroyo.9
After being furnished a copy of the congratulatory letters on March
22, 2010,10 the petitioner filed the present petition questioning the
validity of the respondents’ appointments mainly on the ground
that it violates the constitutional prohibition against midnight
appointments.11
On March 25, 2010 and April 27, 2010, respondents Urro and de
Guzman took their oath of office as NAPOLCOM Commissioners
before DILG Secretary Puno and Sandiganbayan Associate Justice
Jose R. Hernandez, respectively.12
On July 30, 2010, the newly elected President of the Republic of the
Philippines, His Excellency Benigno S. Aquino III, issued Executive
Order No. 2 (E.O. No. 2) "Recalling, Withdrawing, and Revoking
Appointments Issued by the Previous Administration in Violation of
the Constitutional Ban on Midnight Appointments." The salient
portions of E.O. No. 2 read:
SECTION 1. Midnight Appointments Defined. – The following
appointments made by the former President and other appointing
authorities in departments, agencies, offices, and instrumentalities,
including government-owned or controlled corporations, shall be
considered as midnight appointments:
(a) Those made on or after March 11, 2010, including all
appointments bearing dates prior to March 11, 2010 where the
appointee has accepted, or taken his oath, or assumed public office
on or after March 11, 2010, except temporary appointments in the
executive positions when continued vacancies will prejudice public
service or endanger public safety as may be determined by the
appointing authority.
(b) Those made prior to March 11, 2010, but to take effect after said
date or appointments to office that would be vacant only after
March 11, 2010.
(c) Appointments and promotions made during the period of 45
days prior to the May 10, 2010 elections in violation of Section 261
of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight
Appointments. Midnight appointments, as defined under Section 1,
are hereby recalled, withdrawn, and revoked. The positions covered
or otherwise affected are hereby declared vacant. (Emphasis
supplied.)
THE PETITION
The petitioner claims that Roces was supposed to serve a full term
of six years counted from the date of her appointment in October
(should be September) 2004.13 Since she failed to finish her six-year
term, then the petitioner is entitled to serve this unexpired portion
or until October (should be September) 2010.14 The petitioner
invokes Republic Act (R.A.) No. 697515 (otherwise known as the
Department of the Interior and Local Government Act of 1990)
which requires that vacancies in the NAPOLCOM "shall be filled up
for the unexpired term only."16 Because of the mandatory word
"shall," the petitioner concludes that the appointment issued to him
was really a "regular" appointment, notwithstanding what appears
in his appointment paper. As a regular appointee, the petitioner
argues that he cannot be removed from office except for cause.

The petitioner alternatively submits that even if his appointment
were temporary, a temporary appointment does not give the
President the license to abuse a public official simply because he
lacks security of tenure.17 He asserts that the validity of his
termination from office depends on the validity of the appointment
of the person intended to replace him. He explains that until a
presidential appointment is "officially released," there is no
"appointment" to speak of. Since the appointment paper of
respondent Urro, while bearing a date prior to the effectivity of the
constitutional ban on appointments,18 was officially released (per
the congratulatory letter dated March 19, 2010 issued to Urro)
when the appointment ban was already in effect, then the
petitioner’s appointment, though temporary in nature, should
remain effective as no new and valid appointment was effectively
made.
The petitioner assails the validity of the appointments of
respondents De Guzman and Escueta, claiming that they were also
made in violation of the constitutional ban on appointments.
THE COMMENTS OF THE RESPONDENTS and THE OFFICE
OF THE SOLICITOR GENERAL (OSG)
Prefatorily, the respondents characterize Escueta’s inclusion in the
present petition as an error since his appointment, acceptance and
assumption of office all took place before the constitutional ban on
appointments started. Thus, there is no "case or controversy" as to
Escueta.
The respondents posit that the petitioner is not a real party-in-
interest to file a petition for quo warranto since he was merely
appointed in an acting capacity and could be validly removed from
office at anytime.
The respondents likewise counter that what the ban on midnight
appointments under Section 15, Article VII of the Constitution
prohibits is only the making of an appointment by the President
sixty (60) days before the next presidential elections and until his
term expires; it does not prohibit the acceptance by the appointee
of his appointment within the same prohibited period.19 The
respondents claim that "appointment" which is a presidential act,
must be distinguished from the "acceptance" or "rejection" of the
appointment, which is the act of the appointee. Section 15, Article
VII of the Constitution is directed only against the President and his
act of appointment, and is not concerned with the act/s of the
appointee. Since the respondents were appointed (per the date
appearing in their appointment papers) before the constitutional
ban took effect, then their appointments are valid.
The respondents assert that their appointments cannot be
considered as midnight appointments under the Dominador R.
Aytona v. Andres V. Castillo, et al.20 ruling, as restated in In Re:
Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela,
et al.21 and Arturo M. de Castro v. Judicial and Bar Council, et al.,22
since the petitioner failed to substantiate his claim that their
appointments were made only "for the purpose of influencing the
Presidential elections," or for "partisan reasons."23
The respondents pray for the issuance of a TRO to stop the
implementation of E.O. No. 2, and for the consolidation of this case
with the pending cases of Tamondong v. Executive Secretary24 and
De Castro v. Office of the President25 which similarly assail the
validity of E.O. No. 2.
On the other hand, while the OSG considers the respondents’
appointments within the scope of "midnight appointments" as
defined by E.O. No. 2, the OSG nonetheless submits that the
petitioner is not entitled to the remedy of quo warranto in view of
the nature of his appointment. The OSG claims that since an
appointment in an acting capacity cannot exceed one year, the
petitioner’s appointment ipso facto expired on July 21, 2009.26
PETITIONER’S REPLY
The petitioner argues in reply that he is the legally subsisting
commissioner until another qualified commissioner is validly
appointed by the new President to replace him.27
The petitioner likewise claims that the respondents appeared to
have skirted the element of issuance of an appointment in
considering whether an appointment is made. The petitioner asserts
that to constitute an appointment, the President’s act of affixing his
signature must be coupled with the physical issuance of the
appointment to the appointee – i.e., the appointment paper is
officially issued in favor of the appointee through the President’s
proper Cabinet Secretary. The making of an appointment is different
from its issuance since prior to the official issuance of an
appointment, the appointing authority enjoys the prerogative to
change his mind. In the present case, the respondents’ appointment
papers were officially issued and communicated to them only on
March 19, 2010, well within the period of the constitutional ban, as
shown by the congratulatory letters individually issued to them.
Given this premise, the petitioner claims that he correctly
impleaded Escueta in this case since his appointment also violates
the Constitution. The petitioner adds that Escueta was appointed on
July 21, 2008, although then as acting NAPOLCOM Commissioner. By
permanently appointing him as NAPOLCOM Commissioner, he
stands to be in office for more than six years, in violation of R.A. No.
6975.28
The petitioner argues that even granting that the President can
extend appointments in an acting capacity to NAPOLCOM
Commissioners, it may not be done by "successive appointments" in
the same capacity without violating R.A. No. 6975, as amended,
which provides a fixed and staggered term of office for NAPOLCOM
Commissioners.29
THE COURT’S RULING
We dismiss the petition for lack of merit.
When questions of constitutional significance are raised, the Court
can exercise its power of judicial review only if the following
requisites are present: (1) the existence of an actual and
appropriate case; (2) the existence of personal and substantial
interest on the part of the party raising the constitutional question;
(3) recourse to judicial review is made at the earliest opportunity;
and (4) the constitutional question is the lis mota of the case.30
Both parties dwelt lengthily on the issue of constitutionality of the
respondents’ appointments in light of E.O. No. 2 and the subsequent
filing before the Court of several petitions questioning this Executive
Order. The parties, however, appear to have overlooked the basic
principle in constitutional adjudication that enjoins the Court from
passing upon a constitutional question, although properly
presented, if the case can be disposed of on some other ground.31
In constitutional law terms, this means that we ought to refrain
from resolving any constitutional issue "unless the constitutional
question is the lis mota of the case."
Lis mota literally means "the cause of the suit or action." This last
requisite of judicial review is simply an offshoot of the presumption
of validity accorded the executive and legislative acts of our co-
equal branches of the government. Ultimately, it is rooted in the
principle of separation of powers. Given the presumed validity of an
executive act, the petitioner who claims otherwise has the burden
of showing first that the case cannot be resolved unless the
constitutional question he raised is determined by the Court.32
In the present case, the constitutionality of the respondents’
appointments is not the lis mota of the case. From the submitted
pleadings, what is decisive is the determination of whether the
petitioner has a cause of action to institute and maintain this
present petition – a quo warranto against respondent Urro. If the
petitioner fails to establish his cause of action for quo warranto, a
discussion of the constitutionality of the appointments of the
respondents is rendered completely unnecessary. The inclusion of
the grounds for certiorari and/or prohibition does not alter the
essential character of the petitioner’s action since he does not even
allege that he has a personal and substantial interest in raising the
constitutional issue insofar as the other respondents are concerned.
The resolution of whether a cause of action exists, in turn, hinges on
the nature of the petitioner’s appointment. We frame the issues
under the following questions:
1. What is the nature of the petitioner’s appointment as acting
NAPOLCOM Commissioner?
2. Does the petitioner have the clear right to be reinstated to his
former position and to oust respondent Urro as NAPOLCOM
Commissioner?
I. Nature of petitioner’s appointment
a. A staggered term of office is not inconsistent with an acting
appointment
The petitioner asserts that contrary to what appears in his
appointment paper, the appointment extended to him was really a
regular appointment; thus, he cannot be removed from office
except for cause. The petitioner argues that the appointment of an
acting NAPOLCOM Commissioner or, at the very least, the
"successive appointments" of NAPOLCOM Commissioners in an
acting capacity contravenes the safeguards that the law - R.A. No.
697533 - intends through the staggered term of office of
NAPOLCOM Commissioners.
Notably, the petitioner does not expressly claim that he was issued
a permanent appointment; rather, he claims that his appointment is
actually a regular appointment since R.A. No. 6975 does not
allegedly allow an appointment of a NAPOLCOM Commissioner in an
acting capacity.
At the outset, the petitioner’s use of terms needs some clarification.
Appointments may be classified into two: first, as to its nature; and
second, as to the manner in which it is made.34
Under the first classification, appointments can either be permanent
or temporary (acting). A basic distinction is that a permanent
appointee can only be removed from office for cause; whereas a
temporary appointee can be removed even without hearing or
cause.35 Under the second classification, an appointment can either
be regular or ad interim. A regular appointment is one made while
Congress is in session, while an ad interim appointment is one
issued during the recess of Congress. In strict terms, presidential
appointments that require no confirmation from the Commission on
Appointments36 cannot be properly characterized as either a
regular or an ad interim appointment.
In this light, what the petitioner may have meant is a permanent (as
contrasted to a temporary or acting) appointment to the office of a
NAPOLCOM Commissioner, at least for the duration of the
unexpired portion of his predecessor (Roces).
Generally, the power to appoint vested in the President includes the
power to make temporary appointments, unless he is otherwise
specifically prohibited by the Constitution or by the law, or where an
acting appointment is repugnant to the nature of the office
involved.37 The President’s power to issue an acting appointment is
particularly authorized by the Administrative Code of 1987
(Executive Order No. 292).
CHAPTER 5
POWER OF APPOINTMENT
Section 16. Power of Appointment. - The President shall exercise the
power to appoint such officials as provided for in the Constitution
and laws.
Section 17. Power to Issue Temporary Designation. –
(1) The President may temporarily designate an officer already in
the government service or any other competent person to perform
the functions of an office in the executive branch, appointment to
which is vested in him by law, when: (a) the officer regularly
appointed to the office is unable to perform his duties by reason of
illness, absence or any other cause; or (b) there exists a vacancy;
(3) In no case shall a temporary designation exceed one (1) year.
The purpose of an acting or temporary appointment is to prevent a
hiatus in the discharge of official functions by authorizing a person
to discharge those functions pending the selection of a permanent
or another appointee. An acting appointee accepts the position on
the condition that he shall surrender the office once he is called to
do so by the appointing authority. Therefore, his term of office is
not fixed but endures at the pleasure of the appointing authority.
His separation from the service does not import removal but merely
the expiration of his term — a mode of termination of official
relations that falls outside the coverage of the constitutional
provision on security of tenure38 since no removal from office is
involved.
The power to appoint is essentially executive in nature39 and the
limitations on or qualifications in the exercise of this power are
strictly construed.40 In the present case, the petitioner posits that
the law itself, R.A. No. 6975, prohibits the appointment of a
NAPOLCOM Commissioner in an acting capacity by staggering his
term of office. R.A. No. 6975, on the term of office, states:
Section 16. Term of Office. – The four (4) regular and full-time
Commissioners shall be appointed by the President upon the
recommendation of the Secretary. Of the first four (4)
commissioners to be appointed, two (2) commissioners shall serve
for six (6) years and the two (2) other commissioners for four (4)
years. All subsequent appointments shall be for a period of six (6)
years each, without reappointment or extension.
Generally, the purpose for staggering the term of office is to
minimize the appointing authority’s opportunity to appoint a
majority of the members of a collegial body. It also intended to
ensure the continuity of the body and its policies.41 A staggered
term of office, however, is not a statutory prohibition, direct or
indirect, against the issuance of acting or temporary appointment. It
does not negate the authority to issue acting or temporary
appointments that the Administrative Code grants.
Ramon P. Binamira v. Peter D. Garrucho, Jr.,42 involving the
Philippine Tourism Authority (PTA), is an example of how this Court
has recognized the validity of temporary appointments in vacancies
in offices whose holders are appointed on staggered basis. Under
Presidential Decree (P.D.) No. 189,43 (the charter of the PTA, as
amended by P.D. No. 56444 and P.D. No. 140045), the members of
the PTA’s governing body are all presidential appointees whose
terms of office are also staggered.46 This, notwithstanding, the
Court sustained the temporary character of the appointment
extended by the President in favor of the PTA General Manager,
even if the law47 also fixes his term of office at six years unless
sooner removed for cause.
Interestingly, even a staggered term of office does not ensure that
at no instance will the appointing authority appoint all the members
of a body whose members are appointed on staggered basis.
The post-war predecessor of the NAPOLCOM was the Police
Commission created under R.A. No. 4864.48 Pursuant to the 1987
constitutional provision mandating the creation of one national
civilian police force,49 Congress enacted R.A. No. 6975 and created
the NAPOLCOM to exercise, inter alia, "administrative control over
the Philippine National Police." Later, Congress enacted R.A. No.
8551 which substantially retained the organizational structure,
powers and functions of the NAPOLCOM.50 Under these laws, the
President has appointed the members of the Commission whose
terms of office are staggered.
Under Section 16 of R.A. No. 6975, the NAPOLCOM Commissioners
are all given a fixed term of six years (except the two of the first
appointees who hold office only for four years). By staggering their
terms of office however, the four regular commissioners would not
vacate their offices at the same time since a vacancy will occur every
two years.
Under the NAPOLCOM set up, the law does not appear to have been
designed to attain the purpose of preventing the same President
from appointing all the NAPOLCOM Commissioners by staggering
their terms of office. R.A. No. 6975 took effect on January 1, 1991.
In the usual course, the term of office of the first two regular
commissioners would have expired in 1997, while the term of the
other two commissioners would have expired in 1995. Since the
term of the President elected in the first national elections under
the 1987 Constitution expired on June 30, 1998, then, theoretically,
the sitting President for the 1992-1998 term could appoint all the
succeeding four regular NAPOLCOM Commissioners. The next
President, on the other hand, whose term ended in 2004, would
have appointed the next succeeding Commissioners in 2001 and
2003.
It is noteworthy, too, that while the Court nullified the attempt of
Congress to consider the terms of office of the then NAPOLCOM
Commissioners as automatically expired on the ground that there
was no bona fide reorganization of the NAPOLCOM,51 a provision
on the staggering of terms of office is evidently absent in R.A. No.
8551 - the amendatory law to R.A. No. 6975. Section 7 of R.A. No.
8551 reads:
Section 7. Section 16 of Republic Act No. 6975 is hereby amended to
read as follows:
"SEC. 16. Term of Office. – The four (4) regular and full-time
Commissioners shall be appointed by the President for a term of six
(6) years without re-appointment or extension."
Thus, as the law now stands, the petitioner’s claim that the
appointment of an acting NAPOLCOM Commissioner is not allowed
based on the staggering of terms of office does not even have any
statutory basis.
Given the wide latitude of the President’s appointing authority (and
the strict construction against any limitation on or qualification of
this power), the prohibition on the President from issuing an acting
appointment must either be specific, or there must be a clear
repugnancy between the nature of the office and the temporary
appointment. No such limitation on the President’s appointing
power appears to be clearly deducible from the text of R.A. No.
6975 in the manner we ruled in Nacionalista Party v. Bautista.52 In
that case, we nullified the acting appointment issued by the
President to fill the office of a Commissioner of the Commission on
Elections (COMELEC) on the ground that it would undermine the
independence of the COMELEC. We ruled that given the specific
nature of the functions performed by COMELEC Commissioners,
only a permanent appointment to the office of a COMELEC
Commissioner can be made.
Under the Constitution, the State is mandated to establish and
maintain a police force to be administered and controlled by a
national police commission. Pursuant to this constitutional
mandate, the Congress enacted R.A. No. 6975, creating the
NAPOLCOM with the following powers and functions:53
Section 14. Powers and Functions of the Commission. — The
Commission shall exercise the following powers and functions:
(a) Exercise administrative control and operational supervision over
the Philippine National Police which shall mean the power to:
xxxx
b) Advise the President on all matters involving police functions and
administration;
c) Render to the President and to the Congress an annual report on
its activities and accomplishments during the thirty (30) days after
the end of the calendar year, which shall include an appraisal of the
conditions obtaining in the organization and administration of police
agencies in the municipalities, cities and provinces throughout the
country, and recommendations for appropriate remedial legislation;
d) Recommend to the President, through the Secretary, within sixty
(60) days before the commencement of each calendar year, a crime
prevention program; and
e) Perform such other functions necessary to carry out the
provisions of this Act and as the President may direct. [Emphasis
added.]
We find nothing in this enumeration of functions of the members of
the NAPOLCOM that would be subverted or defeated by the
President’s appointment of an acting NAPOLCOM Commissioner
pending the selection and qualification of a permanent appointee.
Viewed as an institution, a survey of pertinent laws and executive
issuances54 will show that the NAPOLCOM has always remained as
an office under or within the Executive Department.55 Clearly, there
is nothing repugnant between the petitioner’s acting appointment,
on one hand, and the nature of the functions of the NAPOLCOM
Commissioners or of the NAPOLCOM as an institution, on the other.
b. R.A. No. 6975 does not prohibit the appointment of an acting
NAPOLCOM Commissioner in filling up vacancies in the NAPOLCOM
The petitioner next cites Section 18 of R.A. No. 6975 to support his
claim that the appointment of a NAPOLCOM Commissioner to fill a
vacancy due to the permanent incapacity of a regular Commissioner
can only be permanent and not temporary:
Section 18. Removal from Office. – The members of the Commission
may be removed from office for cause. All vacancies in the
Commission, except through expiration of term, shall be filled up for
the unexpired term only: Provided, That any person who shall be
appointed in this case shall be eligible for regular appointment for
another full term.
Nothing in the cited provision supports the petitioner’s conclusion.
By using the word "only" in Section 18 of R.A. No. 6975, the law’s
obvious intent is only to prevent the new appointee from serving
beyond the term of office of the original appointee. It does not
prohibit the new appointee from serving less than the unexpired
portion of the term as in the case of a temporary appointment.
While the Court previously inquired into the true nature of a
supposed acting appointment for the purpose of determining
whether the appointing power is abusing the principle of temporary
appointment,56 the petitioner has not pointed to any
circumstance/s which would warrant a second look into and the
invalidation of the temporary nature of his appointment.57
Even the petitioner’s citation of Justice Puno’s58 dissenting opinion
in Teodoro B. Pangilinan v. Guillermo T. Maglaya, etc.59 is inapt.
Like the petitioner, Pangilinan was merely appointed in an acting
capacity and unarguably enjoyed no security of tenure. He was
relieved from the service after exposing certain anomalies involving
his superiors. Upon hearing his plea for reinstatement, the Court
unanimously observed that Pangilinan’s relief was a punitive
response from his superiors. The point of disagreement, however, is
whether Pangilinan’s lack of security of tenure deprives him of the
right to seek reinstatement. Considering that the law
(Administrative Code of 1987) allows temporary appointments only
for a period not exceeding twelve (12) months, the majority
considered Pangilinan to be without any judicial remedy since at the
time of his separation, he no longer had any right to the office.
Justice Puno dissented, arguing that Pangilinan’s superiors’ abuse of
his temporary appointment furnishes the basis for the relief he
seeks.
In the present case, the petitioner does not even allege that his
separation from the office amounted to an abuse of his temporary
appointment that would entitle him to the incidental benefit of
reinstatement.60 As we did in Pangilinan,61 we point out that the
petitioner’s appointment as Acting Commissioner was time-limited.
His appointment ipso facto expired on July 21, 2009 when it was not
renewed either in an acting or a permanent capacity. With an
expired appointment, he technically now occupies no position on
which to anchor his quo warranto petition.
c. The petitioner is estopped
from claiming that he was permanently appointed
The petitioner’s appointment paper is dated July 21, 2008. From
that time until he was apprised on March 22, 2010 of the
appointment of respondent Urro, the petitioner faithfully
discharged the functions of his office without expressing any
misgivings on the character of his appointment. However, when
called to relinquish his office in favor of respondent Urro, the
petitioner was quick on his feet to refute what appeared in his
appointment papers.
Under these facts, the additional circumstance of estoppel clearly
militates against the petitioner. A person who accepts an
appointment in an acting capacity, extended and received without
any protest or reservation, and who acts by virtue of that
appointment for a considerable time, cannot later on be heard to
say that the appointment was really a permanent one so that he
could not be removed except for cause.62
II. An acting appointee has no
cause of action for quo warranto
against the new appointee
The Rules of Court requires that an ordinary civil action must be
based on a cause of action,63 which is defined as an act or omission
of one party in violation of the legal right of the other which causes
the latter injury. While a quo warranto is a special civil action, the
existence of a cause of action is not any less required since both
special and ordinary civil actions are governed by the rules on
ordinary civil actions subject only to the rules prescribed specifically
for a particular special civil action.64
Quo warranto is a remedy to try disputes with respect to the title to
a public office.lihpwal Generally, quo warranto proceedings are
commenced by the Government as the proper party-plaintiff.
However, under Section 5, Rule 66 of the Rules of Court, an
individual may commence such action if he claims to be entitled to
the public office allegedly usurped by another. We stress that the
person instituting the quo warranto proceedings in his own behalf
must show that he is entitled to the office in dispute; otherwise, the
action may be dismissed at any stage.65 Emphatically, Section 6,
Rule 66 of the same Rules requires the petitioner to state in the
petition his right to the public office and the respondent’s unlawful
possession of the disputed position.
As early as 1905,66 the Court already held that for a petition for quo
warranto to be successful, the suing private individual must show a
clear right to the contested office.67 His failure to establish this
right warrants the dismissal of the suit for lack of cause of action; it
is not even necessary to pass upon the right of the defendant who,
by virtue of his appointment, continues in the undisturbed
possession of his office.68
Since the petitioner merely holds an acting appointment (and an
expired one at that), he clearly does not have a cause of action to
maintain the present petition.69 The essence of an acting
appointment is its temporariness and its consequent revocability at
any time by the appointing authority.70 The petitioner in a quo
warranto proceeding who seeks reinstatement to an office, on the
ground of usurpation or illegal deprivation, must prove his clear
right71 to the office for his suit to succeed; otherwise, his petition
must fail.
From this perspective, the petitioner must first clearly establish his
own right to the disputed office as a condition precedent to the
consideration of the unconstitutionality of the respondents’
appointments. The petitioner’s failure in this regard renders a ruling
on the constitutional issues raised completely unnecessary. Neither
do we need to pass upon the validity of the respondents’
appointment. These latter issues can be determined more
appropriately in a proper case. WHEREFORE, the petition is
DISMISSED. SO ORDERED.