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OUTLINE OF NOTES & CASES IN

POLITICAL LAW
May 2010 Edition

by:

ATTY. LARRY D. GACAYAN


Professor
(Constitutional Law Review, Constitutional Law I & II)
COLLEGE OF LAW
UNIVERSITY OF THE CORDILLERAS

PRE-BAR REVIEWER

CPRS PRE-BAR REVIEW CENTER


(Cagayan de Oro City, Zamboanga City, Iloilo City and Davao City)

EXCELLENT PRE-BAR REVIEW CENTER


(General Santos City, Baguio City and Tacloban City)

POWERHAUS PRE-BAR REVIEW CENTER


(Santiago City and Tagbilaran City)

COSMOPOLITAN BAR REVIEW CENTER


(Baguio City)
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PART I
DEFINITIONS AND CONCEPTS

1. Define: a. Political Law—is that branch of public law which deals with the
organization and operations of the governmental organs of the State and defines
the relations of the State with the inhabitants of its territory. (PEOPLE VS.
PERFECTO, 43 Phil. 887)

b. Constitutional Law
c. Constitution
d. Administrative Law
e. Law of Public Officers
f. Law on Public Corporations
g. Election Law
h. Distinction between Political
Law and Constitutional Law

2. Read: MACARIOLA VS. JUDGE ASUNCION, 114 SCRA 77

The provision in the Code of Commerce (Made


effective in the Philippines in 1887) which prohibits
judges, justices, etc., (public officers) from engaging in
business within the territorial jurisdiction of their courts is
political in nature and therefore, said provision was
deemed abrogated when there was a change of sovereignty
from Spain to the United States at the turn of the century.
Political laws are deemed abrogated if there is a change of
sovereignty and unless re-enacted under the new sovereign,
the same is without force and effect.

3. The Supremacy of the Constitution

Read: 1. MUTUC VS. COMELEC, 36 SCRA 228


2. MANILA PRINCE HOTEL VS. GSIS, 267 SCRA 408

A constitution is a system of fundamental laws for


the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the
authority from which it emanates. It has been defined as
the fundamental and paramount law of the nation. It
prescribes the permanent framework of a system of
government, assigns to the different departments their
respective powers and duties, and establishes certain fixed
principles on which government is founded. The
fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in
accordance with which all private rights must be
determined and all public authority administered.
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Under the doctrine of constitutional supremacy, if a


law or contract violates any norm of the constitution that
law or contract whether promulgated by the legislative or
by the executive branch or entered into by private persons
for private purposes is null and void and without any force
and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed
written in every statute and contract.

Admittedly, some constitutions are merely


declarations of policies and principles. Their provisions
command the legislature to enact laws and carry out the
purposes of the framers who merely establish an outline of
government providing for the different departments of the
governmental machinery and securing certain fundamental
and inalienable rights of citizens. A provision which lays
down a general principle, such as those found in Art. II of
the 1987 Constitution, is usually not self-executing. But a
provision, which is complete in itself and becomes
operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means
of which the right it grants may be enjoyed or protected, is
self-executing. Thus a constitutional provision is self-
executing if the nature and extent of the right conferred and
the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and
construction of its terms, and there is no language
indicating that the subject is referred to the legislature for
action.

4. Kinds of Constitution

a) written or unwritten
b) rigid and flexible
c) cumulative or conventional

5. AMENDMENT OR REVISION OF THE CONSTITUTION (Art. XVII)

Section 1. Any amendment to, or revision of, this


Constitution may be proposed by:

[1] The Congress upon a vote of ¾ of all its


Members; or
[2] A constitutional Convention.

Section 2. Amendments to this Constitution may


likewise be directly proposed by the people through
initiative upon a petition of at least 12% of the total
number of registered voters, of which every legislative
district must be represented by at least 3% of the
registered voter therein. No amendment under this
Section shall be authorized within five (5) years following
the ratification of this Constitution nor oftener than once
every five years thereafter.
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The Congress shall provide for the implementation


of the exercise of this right.

Section 3. The Congress, by a vote of 2/3 of all its


members, cal a constitutional convention, or by a
majority vote of all its Members, submit to the electorate
the question of calling such a convention.

Section 4. Any amendment to, or revision of, this


Constitution under Section 1 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later
than ninety days after the approval of such amendment
or revision.

Any amendment under Section 2 hereof shall be


valid when ratified by a majority of the votes cast in a
plebiscite which shall be held not later than ninety days
after the certification by the COMELEC of the
sufficiency of the petition.

(2007 Bar Question in Political Law:


Question: May Congress by ¾ votes of all its members (whether voting
jointly or separately) AMEND any provision of the Constitution?

Answer: No. It can only propose amendments by ¾ votes of all its members.
A provision is amended only after it was ratified by majority of the votes cast
during the plebiscite called to amend or reject the proposed amendments)

NOTE: Amendments to, or revision of the Constitution is VALID only when


approved by a majority of the votes cast during the plebiscite, not by the votes of
the Members of Congress.

2. Read: R.A. 6735

Requisites for a valid people’s initiative to


amend the Constitution; distinctions between
amendment and revision.

RAUL L. LAMBINO and ERICO B. AUMENTADO ,


together with 6,327,952 registered voters vs. THE
COMMISSION ON ELECTIONS, G.R. No. 174153,
October 25, 2006, 505 SCRA 160

Carpio, J.

Facts:

Petitioners filed a Petition for Initiative and Referendum with the COMELEC to
amend the 1987 Philippine Constitution, particularly Articles VI and VII to replace the
present Presidential-Bicameral system of government to Parliamentary-Unicameral
system using Section 2, Art. XVII of the Constitution. Petitioners claim that their
petition was signed by 6,327,952 million voters all over the country and the same
constitutes over 12% of all the registered voters in the entire country and that more
than 3% of the registered voters in every legislative district signed the same in
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accordance with Section 2, Art. XVII of the Constitution. The petition to change the
Constitution involves sections 1-7 of Article VI; Sections 1-4 of Article VII and an
Article XVII entitled “Transitory Provisions”. The petitioners prayed with the
COMELEC that after due publication of their Petition, the COMELEC should submit
the following proposition in a plebiscite for the voters’ ratification:

DO YOU APPROVE THE AMENDMENT OF


ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM
THE PRESIDENTIAL BICAMERAL TO A
UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?

The COMELEC dismissed the petition citing MIRIAM DEFENSOR


SANTIAGO VS. COMELEC, 270 SCRA 106 where it was held that:

RA 6735 intended to include the System of Initiative


on Amendments to the Constitution, but is, unfortunately,
Inadequate to cover that system under Section 2, Art. XVII
of the Constitution. x x x .
The foregoing brings us to the conclusion that RA
6735 is incomplete, inadequate or wanting in essential
terms and conditions insofar as initiative on amendments
to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by
“empowering” the COMELEC to promulgate such rules
and regulations as may be necessary to carry the purposes
of this act.

Considering the said dismissal, petitioners elevated the matter to the


Supreme Court on Certiorari and Mandamus alleging rave abuse of discretion and
to set aside the COMELEC’ Decision and to compel the latter to give due course
to their initiative petition.

THE ISSUES:

1. WHETHER THE LAMBINO GROUP’S PETITION


COMPLIES WITH SECTION 2, ARTICLE XVII OF THE
CONSTITUTION ON AMENDMENTS TO THE
CONSTITUTION THROUGH PEOPLE’S INITIATIVE;
2. WHETHER THE COURT SHOULD REVISIT ITS RULING IN
DEFENSOR-SANTIAGO VS. COMELEC, DECLARING
THAT RA NO. 6735 “INCOMPLETE, INADEQUATE OR
WANTING IN ESSENTIAL TERMS AND CONDITIONS” TO
IMPLEMENT THE INITIATIVE CLAUSE ON PROPOSALS
TO AMEND THE CONSTITUTION; and
3. WHETHER THE COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION IN DENYING DUE COURSE TO THE
LAMBINO GROUP’S PETITION.

H E L D:

There is no merit to the petition.


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The Lambino group miserably failed to comply with the basic requirements
of the Constitution for conducting a people’s initiative. Thus, there is even no need
to revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Group’s glaring failure to comply with the basic requirements of the
Constitution. As such, there is likewise no grave abuse of discretion on the part of
the COMELEC.

Section 2, Article XVII of the Constitution is the governing constitutional


provision that allows a people’s initiative to propose amendments to the
Constitution. This Section provides:

“Section 2. Amendments to this Constitution may


likewise be DIRECTLY PROPOSED BY THE PEOPLE
through initiative upon a petition of at least twelve per
centum (12%) of the total number of registered voters of
which every legislative district must be represented by at
least three per centum (3%) of the registered voters
therein.”

The deliberations of the Constitutional Convention vividly explain the


meaning of the amendment “directly proposed by the people through initiative
upon a petition”. Thus:

MR. RODRIGO: Let us look at the mechanics. Let us say


some voters want to propose a constitutional amendment.
IS THE DRAFT OF THE PROPOSED
CONSTITUTIONAL AMENDMENT READY TO BE
SHOWN TO THE PEOPLE WHEN THEY ARE ASKED
TO SIGN?

MR. SUAREZ. That can be reasonably assumed, Madam


President.

MR. RODRIGO: What does the sponsor mean? The draft


is ready and shown to them before they sign? Now, who
prepares the draft?

MR. SUAREZ: The people themselves, Madam


President…As it is envisioned, any Filipino can prepare
that proposal and pass it around for signature.

Clearly, the framers of the Constitution intended that the “draft of the
proposed constitutional amendment” should be “ready and shown” to the
people “before they sign such proposal”. The framers plainly stated that
“before they sign there is already a draft shown to them.” The framers also
“envisioned” that the people should sign on the proposal itself because the
proponents must “prepare the proposal and pass it around for signature.”

The essence of amendments “directly proposed by the people through


initiative upon a petition” IS THAT THE ENTIRE PROPOSAL ON ITS FACE
IS A PETITION BY THE PEOPLE. This means two (2) essential elements must
be present:
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1. The people must author and must sign the entire proposal. No agent or
representative can sign for and on their behalf;
2. As an initiative upon a petition, THE PROPOSAL MUST BE
EMBODIED IN A PETITION.

These essential elements are present only if the full text of the proposed
amendments is first shown to the people who will express their assent by signing
such complete proposal in a petition. Thus, an amendment is “DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETIITON “
ONLY IF THE PEOPLE SIGN ON A PETITION THAT OCNTAINS THE FULL
TEXT OF THE PROPOSED AMENDMENTS.

The petitioners bear the burden of proving that they complied with the
constitutional requirements in gathering the signatures---that the petition
contained, or incorporated by attachment, the full text of the proposed
amendments.

The Lambino Group did not attach to their present petition a copy of the
document containing the proposed amendments and as such, the people signed
initiative petition without knowing the actual amendments proposed in the said
initiative. Instead , the alleged 6.3 million people who signed the petition had to
rely the representations of Atty. Lambino. Clearly, Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.

2. A people’s initiative to change the Constitution applies only to an


amendment of the Constitution and not to its revision. In contrast, Congress and a
Constitutional Convention can propose both amendments and revisions to the
Constitution. This is clear under Section 1 of Art. XVII of the Constitution.

Where the intent and language of the Constitution under Section 2 of Art.
XVIII clearly withhold from the people the power to propose revisions to the
Constitution, the people cannot propose revisions even as they are empowered to
propose amendments. The two are distinguished as follows:

“Revision” is the alterations of the different portions of the entire


document [Constitution]. It may result in the rewriting whether the
whole constitution, or the greater portion of it, or perhaps some of its
important provisions. But whatever results the revision may produce,
the factor that characterizes it as an act of revision is the original
intention and plan authorized to be carried out. That intention and plan
must contemplate a consideration of all the provisions of the
Constitution to determine which one should be altered or suppressed
or whether the whole document should be replaced with an entirely
new one.

“Amendment” of the Constitution, on the other hand, envisages


a change or only a few specific provisions. The intention of an act to
amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it
provisions deemed essential on account of changed conditions or to
suppress portions of it that seem obsolete, or dangerous, or misleading
in their effect.
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(NOTE: On November 20, 2006, the Supreme Court in its Resolution of the
Motion for Reconsideration of Lambino, while it denied the Motion for
Reconsideration for lack of merit insofar as they want the people’s initiative
petition to be presented to the people in a plebiscite, it held that ten (10)
members voted to declare that RA No. 6735 IS COMPLETE AND ADEQUATE
and therefore, people’s initiative may be availed of by the people provided they
shall comply with the strict requirements of Section 2, Art. XVII that the
proposed amendments/s to the Constitution must be indicated in the petition
itself signed by the people.)

MIRIAM DEFENSOR-SANTIAGO, et al. Vs. COMELEC,


G.R. No. 127325, March 19, 1997 & June 10, 1997

RA 6735 intended to include the System of Initiative


on Amendments to the Constitution, but is, unfortunately,
Inadequate to cover that system. Section 2 Art. XVII is not
self-executory and unless Congress provides for its
implementation , it would remain in the cold niche of the
Constitution. RA 6735 in all its 23 sections mentions the
word “Constitution” only in section 2 and Section 3 as
compared to the initiative on “statutes” and local
legislation. The foregoing brings us to the conclusion that
RA 6735 is incomplete, inadequate or wanting in essential
terms and conditions insofar as initiative on amendments
to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by
“empowering” the COMELEC to promulgate such rules
and regulations as may be necessary to carry the purposes
of this act.

Enumerate the steps to be followed and the requisites to be met in order that
the people may proposed the amendments, repeal, amend or enact a law or
provision of the Constitution.

3. Distinguish “Revision” from “amendment” of the Constitution.

“Revision” is the alterations of the different portions of the


entire document [Constitution]. It may result in the rewriting whether
the whole constitution, or the greater portion of it, or perhaps some of
its important provisions. But whatever results the revision may
produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention
and plan must contemplate a consideration of all the provisions of the
Constitution to determine which one should be altered or suppressed
or whether the whole document should be replaced with an entirely
new one.

“Amendment” of the Constitution, on the other hand, envisages


a change or only a few specific provisions. The intention of an act to
amend is not to consider the advisability of changing the entire
constitution or of considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add to it
provisions deemed essential on account of changed conditions or to
suppress portions of it that seem obsolete, or dangerous, or misleading
in their effect. (SINCO, Vicente, PHILIPPINE POLITICAL LAW)
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4. Read: a) MABANAG vs. LOPEZ VITO, 78 Phil. 1


b) GONZALES vs. COMELEC, 21 SCRA 774

There is no prohibition for Congress to propose amendments to the


Constitution and at the same time call for the convening of a Constitutional
Convention to amend the Constitution. The word “or” in the provision “…
Congress, upon a vote of ¾ of all its members; OR [2] A constitutional
Convention” under Section 1, Art. XVII also means “AND”.

c) TOLENTINO vs. COMELEC, 41 SCRA 702

“Doctrine of Proper Submission” means all the proposed amendments to


the Constitution shall be presented to the people for the ratification or rejection at
the same time, not piecemeal.

d) SANIDAD vs. COMELEC, 73 SCRA 333


e) ALMARIO vs. ALBA, 127 SCRA 69

If the question regarding the proposed amendment to the Constitution deals


with its “necessity, expediency or wisdom”, the same is political in nature and
beyond the power of the courts to decide.

f) MIRIAM DEFENSOR SANTIAGO VS. COMELEC, 270 ACRA 106

PART II
PREAMBLE

1. Purpose and Effect of a Preamble.

WE, the sovereign Filipino people, imploring the aid


of Almighty God, in order to build a just and humane
society and establish a Government that shall embody our
ideals and aspirations, promote the common good,
conserve and develop our patrimony, and secure to
ourselves and our posterity the blessings of independence
and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.

2. AGLIPAY VS. RUIZ, 64 Phil. 201

It is almost trite to say now that in this country we enjoy


both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their
oath to support and defend the constitution, bind
themselves to recognize and respect the constitutional
guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated
that what is guaranteed by our Constitution is religious
liberty, not mere religious toleration.

Religious freedom, however, as a constitutional


mandate is not inhibition of profound reverence for
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religion and is not denial of its influence in human affairs.


Religion as a profession of faith to an active power that
binds and elevates man to his Creator is recognized. And,
in so far as it instills into the minds the purest principles of
morality, its influence is deeply felt and highly appreciated.
When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in
order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation,
promote the general welfare, and secure to themselves and
their posterity the blessings of independence under a
regime of justice, liberty and democracy," they thereby
manifested reliance upon Him who guides the destinies of
men and nations. The elevating influence of religion in
human society is recognized here as elsewhere. In fact,
certain general concessions are indiscriminately accorded
to religious sects and denominations.

PART III
ARTICLE I - THE NATIONAL TERRITORY

Section 1. The national territory comprises the Philippine


Archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial,
fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between and
connecting the islands of the archipelago, regardless of
their breadth and dimensions, form part of the internal
waters of the Philippines.

1. What is the most significant change in this Article, compared with those of the
1935 and 1973 Constitutions?

2. What is the archipelago theory or archipelagic doctrine?

3. Methods used in fixing the baseline from which the territorial belt is measured:

a. The normal baseline method


b. The straight baseline method

4. Read: The Law of the Sea: Its major implications to the Philippines, by Justice
Jorge R. Coquia, p. 31, Philippine Law Gazette, Vol. 8, No.1.

5. R.A. 3046
R.A. 5446

6. Definitions:

a. Territorial sea
b. Internal or inland waters
c. high seas or international seas
d. sea-bed
e. sub-soil
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f. Insular shelves
g. other submarine areas

7. Reason and effect of having an Article on the National Territory.


8. Read:

1) Presidential Decree No. 1596 - June 11, 1978 (Making the Kalayaan
Island Group [Freedomland] as part of the Philippine Territory)

2) Presidential Decree No. 1599 - June 11, 1978 (Declaring the


Exclusive Economic Zone of the Philippines which is 200 nautical miles from its
baseline)

PART IV

ARTICLE II. DECLARATION OF PRINCIPLES


AND STATE POLICIES

Section 1. The Philippines is a democratic


and republican State. Sovereignty resides in
the people and all government authority
emanates from them.

a. The basic principles underlying the 1935, 1973 and 1987 Constitutions.

b.Manifestations of a republican state.

c. Define "state"

COLLECTOR VS. CAMPOS RUEDA, 42 SCRA 23

d. Elements of a state. Define each:

1. people
2. territory
3. sovereignty
4. government

e. Different meanings of the word “people” as used in the constitution:

1. as inhabitants (Art. XIII, Sec. 1; Art. III, Sec. 2);

2. as citizens (Preamble; Art. II, Sec. 1 & 4; Art. III, Sec. 7);

3. as voters (Art. VII, Sec. 4)

f. presidential & parliamentary forms of government

Read:

1. FREE TELEPHONE WORKERS UNION VS. OPLE, 108 SCRA 757


12

The government of the Philippines under the 1973 Constitution is


“essentially presidential with parliamentary features.”

2. LEGASPI VS. SEC. OF FINANCE, 115 SCRA 418

The form of government is “essentially parliamentary with presidential


features.”

g. Two-fold function of the government.

Read:

1)BACANI VS. NACOCO, 100 Phil. 468 (Ministrant [merely directory] and
Constituent [Mandatory] Functions)

2) ACCFA VS. CUGCO, 30 SCRA 649

Due to complexities of the changing society, the two-


fold function of the government as classified by President
Wilson is no longer relevant.

h. Parents Patriae

Read:
1) GOVT. VS. MONTE DE PIEDAD, 35 Phil 738
2) CABANAS VS. PILAPIL, 58 SCRA 94

i. De jure govt.? De facto govt.?

Read: 1. AQUINO VS. COMELEC, 62 SCRA 275 (on the de jure aspect)
2. In Re: SATURNINO BERMUDEZ, 145 SCRA 160

A government formed as a result of a people’s revolution,


is considered de jure if it is already accepted by the family
of nations or other countries like the United States, Great
Britain, Germany, Japan, and others.

3. Estrada vs. Macapagal & Desierto, infra.

j. The three (3) kinds of de facto government?

Read: CO KIM CHAM VS. VALDEZ TAN KEH, 75 Phil. 113

There are several kinds of de facto governments.

a. The first, or government de facto in a proper legal sense, is


that government that gets possession and control of, or
usurps, by force or by the voice of the majority, the rightful
legal governments and maintains itself against the will of
the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell
as Protector.
b. The second is that which is established and maintained by
military forces who invade and occupy a territory of the
enemy in the course of war, and which is denominated a
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government of paramount force, as the cases of Castine, in


Maine, which was reduced to British possession in the war
of 1812, and Tampico, Mexico, occupied during the war
with Mexico, by the troops of the United States.
c. And the third is that established as an independent
government by the inhabitants of a country who rise in
insurrection against the parent state of such as the
government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only
with the second and third kinds of de facto governments.

"But there is another description of government,


called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government
of paramount force. Its distinguishing characteristics are

(1), that its existence is maintained by active military


power with the territories, and against the rightful authority
of an established and lawful government; and
(2), that while it exists it necessarily be obeyed in
civil matters by private citizens who, by acts of obedience
rendered in submission to such force, do not become
responsible, or wrongdoers, for those acts, though not
warranted by the laws of the rightful government.

On the other hand, laws of a political nature or


affecting political relations, such as, among others, the
right of assembly, the right to bear arms, the freedom of the
press, and the right to travel freely in the territory
occupied, are considered as suspended or in abeyance
during the military occupation. Although the local and civil
administration of justice is suspended as a matter of course
as soon as a country is militarily occupied, it is not usual
for the invader to take the whole administration into his
own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and judges
and other judicial officers are kept in their posts if they
accept the authority of the belligerent occupant or are
required to continue in their positions under the
supervision of the military or civil authorities appointed,
by the Commander in Chief of the occupant. These
principles and practice have the sanction of all publicists
who have considered the subject, and have been asserted
by the Supreme Court and applied by the President of the
United States.

The doctrine upon this subject is thus summed up by


Halleck, in his work on International Law (Vol. 2, p. 444):
"The right of one belligerent to occupy and govern the
territory of the enemy while in its military possession, is
one of the incidents of war, and flows directly from the
right to conquer. We, therefore, do not look to the
Constitution or political institutions of the conqueror, for
authority to establish a government for the territory of the
enemy in his possession, during its military occupation,
14

nor for the rules by which the powers of such government


are regulated and limited. Such authority and such rules are
derived directly from the laws war, as established by the
usage of the of the world, and confirmed by the writings of
publicists and decisions of courts in fine, from the law of
nations. . . . The municipal laws of a conquered territory, or
the laws which regulate private rights, continue in force
during military occupation, excepts so far as they are
suspended or changed by the acts of conqueror. . . . He,
nevertheless, has all the powers of a de facto government,
and can at his pleasure either change the existing laws or
make new ones."

The governments by the Philippine Executive


Commission and the Republic of the Philippines during the
Japanese military occupation being de facto governments,
it necessarily follows that the judicial acts and proceedings
of the courts of justice of those governments, which are not
of a political complexion, were good and valid, and, by
virtue of the well-known principle of postliminy
(postliminium) in international law, remained good and
valid after the liberation or reoccupation of the Philippines
by the American and Filipino forces under the leadership
of General Douglas MacArthur. According to that well-
known principle in international law, the fact that a
territory which has been occupied by an enemy comes
again into the power of its legitimate government of
sovereignty, "does not, except in a very few cases, wipe out
the effects of acts done by an invader, which for one reason
or another it is within his competence to do. Thus judicial
acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that
they take effect during the continuance of his control, and
the various acts done during the same time by private
persons under the sanction of municipal law, remain good.
Were it otherwise, the whole social life of a community
would be paralyzed by an invasion; and as between the
state and the individuals the evil would be scarcely less, it
would be hard for example that payment of taxes made
under duress should be ignored, and it would be contrary to
the general interest that the sentences passed upon
criminals should be annulled by the disappearance of the
intrusive government ." (Hall, International Law, 7th ed., p.
518.) And when the occupation and the abandonment have
been each an incident of the same war as in the present
case, postliminy applies, even though the occupant has
acted as conqueror and for the time substituted his own
sovereignty as the Japanese intended to do apparently in
granting independence to the Philippines and establishing
the so-called Republic of the Philippines. (Taylor,
International Law, p. 615.)

l. Sovereignty:

1. legal
15

2. political

m. The doctrine of sovereignty as auto-limitation?


Read:

1. REAGAN VS. COMMISIONER OF INTERNAL REVENUE, 30


SCRA 968

"By the Agreement, it should be noted, the Philippine


Government merely consents that the United States
exercise jurisdiction in certain cases. The consent was
given purely as a matter of comity, courtesy, or expediency.
The Philippine Government has not abdicated its
sovereignty over the bases as part of the Philippine
territory or divested itself completely of jurisdiction over
offenses committed therein. Under the terms of the treaty,
the United States Government has prior or preferential but
not exclusive jurisdiction of such offenses. The Philippine
Government retains not only jurisdictional rights not
granted, but also all such ceded rights as the United States
Military authorities for reasons of their own decline to
make use of. The first proposition is implied from the fact
of Philippine sovereignty over the bases; the second from
the express provisions of the treaty." "Nothing is better
settled than that the Philippines being independent and
sovereign, its authority may be exercised over its entire
domain. There is no portion thereof that is beyond its
power. Within its limits, its decrees are supreme, its
commands paramount. Its laws govern therein, and
everyone to whom it applies must submit to its terms. That
is the extent of its jurisdiction, both territorial and personal.
Necessarily, likewise, it has to be exclusive. If it were not
thus, there is a diminution of sovereignty." Then came this
paragraph dealing with the principle of auto-limitation: "It
is to be admitted any state may, by its consent, express or
implied, submit to a restriction of its sovereign rights.
There may thus be a curtailment of what otherwise is a
power plenary in character. That is the concept of
sovereignty as auto-limitation, which, in the succinct
language of Jellinek, "is the property of a state-force due to
which it has the exclusive capacity of legal self-
determination and self-restriction." A state then, if it
chooses to, may refrain from the exercise of what
otherwise is illimitable competence." The opinion was at
pains to point out though that even then, there is at the
most diminution of jurisdictional rights, not its
disappearance.

2. PEOPLE VS. GOZO, 53 SCRA 476


3. COMMISSIONER VS. ROBERTSON, 143 SCRA 397

Salaries of American employees in the US Bases in the Philippines are not


subject to tax by the Philippine Government because that is what is provided for
the RP US Military Basis Agreement.
16

2. Section 2. The Philippines renounces war as an


instrument of national police, 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 among all
nations.

a. difference between aggressive & defensive war

b. Read:

1. MEJOFF VS. DIRECTOR OF PRISONS, 90 Phil. 70

The Philippines adopts the Universal Declaration of


Human Rights since it is a generally accepted principle of
international law. As such, it should be applied to illegal
aliens like the petitioner so that it would be a violation of
the said international law to detain him for an unreasonable
length of time since no vessel from his country is willing to
take him.
"The meaning of "reasonable time" depends upon the
circumstances, specially the difficulties of obtaining a
passport, the availability of transportation, the diplomatic
arrangements concerned and the efforts displayed to send
the deportee away. Considering that this Government
desires to expel the alien, and does not relish keeping him
at the people's expense, we must presume it is making
efforts to carry out the decree of exclusion by the highest
officer of the land. On top of this presumption assurances
were made during the oral argument that the Government
is really trying to expedite the expulsion of this petitioner.
On the other hand, the record fails to show how long he
has been under confinement since the last time he was
apprehended. Neither does he indicate neglected
opportunities to send him abroad. And unless it is shown
that the deportee is being indefinitely imprisoned under the
pretense of awaiting a chance for deportation 3 or unless
the Government admits that it can not deport him or unless
the detainee is being held for too long a period our courts
will not interfere.

2. KURODA VS. JALANDONI, 83 Phil 171

Petitioner argues that respondent Military Commission


has no Jurisdiction to try petitioner for acts committed in
violation of the Hague Convention on Rules and
Regulations covering Land Warfare and the Geneva
Convention because the Philippines is not a signatory to
the first and signed the second only in 1947. It cannot be
denied that the rules and regulation of the Hague and
Geneva conventions form, part of and are wholly based on
the generally accepted principals of international law. In
facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were
signatories to the two Convention, Such rule and principles
17

therefore form part of the law of our nation even if the


Philippines was not a signatory to the conventions
embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as
continued inn treaties to which our government may have
been or shall be a signatory.

Furthermore when the crimes charged against petitioner


were allegedly committed the Philippines was under the
sovereignty of United States and thus we were equally
bound together with the United States and with Japan to
the right and obligation contained in the treaties between
the belligerent countries. These rights and obligation were
not erased by our assumption of full sovereignty. If at all
our emergency as a free state entitles us to enforce the right
on our own of trying and punishing those who committed
crimes against crimes against our people. In this
connection it is well to remember what we have said in the
case of Laurel vs. Misa (76 Phil., 372):

3. SALONGA VS. HERMOSO, 97 SCRA 121


4. AGUSTIN VS. EDU, 88 SCRA 195

The Geneva Convention on Road Signs and


Signals, is also considered part of the law of the
Philippines since the same is a generally accepted principle
of international law in accordance with the Incorporation
clause of the Constitution.

5. REYES VS. BAGATSING,125 SCRA 553

Respondent Mayor posed the issue of the applicability


of Ordinance No. 7295 of the City of Manila prohibiting
the holding or staging of rallies or demonstrations within a
radius of five hundred (500) feet from any foreign mission
or chancery and for other purposes. It is to be admitted that
it finds support In the previously quoted Article 22 of the
Vienna Convention on Diplomatic Relations. There was
no showing, however, that the distance between the
chancery and the embassy gate is less than 500 feet. Even
if it could be shown that such a condition is satisfied. it
does not follow that respondent Mayor could legally act
the way he did. The validity of his denial of the permit
sought could still be challenged. It could be argued that a
case of unconstitutional application of such ordinance to
the exercise of the right of peaceable assembly presents
itself. As in this case there was no proof that the distance is
less than 500 feet, the need to pass on that issue was
obviated, Should it come, then the qualification and
observation of Justices Makasiar and Plana certainly
cannot be summarily brushed aside. The high estate
accorded the rights to free speech and peaceable assembly
demands nothing less.
18

Without saying that the Ordinance is obnoxious per


se to the constitution, it cannot be validly invoked
whenever its application would collide with a
constitutionally guaranteed right such as freedom of
assembly and/or expression, as in the case at bar,
regardless of whether the chancery of any foreign embassy
is beyond or within 500 feet from the situs of the rally or
demonstration.

Section 3. Civilian authority is, at all times supreme over


the military. The armed forces of the Philippines is the
protector of the people and the State. Its goal is to secure
the sovereignty of the State and the integrity of the
national territory.

See also:

Art. VII, Sec. 18


Art. XVI, Sec. 5 (2)
Art. XVI, Sec. 5 (4)

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 and military service.

Read:

1. PEOPLE VS. LAGMAN, 66 Phil. 13

“The appellant’s argument that he does not want to join the armed forces
because “he does not want to kill or be killed” and that “he has no military
inclination” is not acceptable because it is his obligation to join the armed
forces in connection with the “defense of the State” provision of the
Constitution.

2. PEOPLE VS. MANAYAO, 78 Phil. 721


3. PD1706, August 8, 1980
4. Exec. Order No. 264

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.

Section 6. The separation of church and State shall be


inviolable.

Read:
1) PAMIL VS. TELERON, 86 SCRA 413

2) GERMAN VS. BARANGAN, 135 SCRA 514


(NOTE: Read the dissenting opinions in both cases)
19

3) Other provisions:
Other provisions on church & state:

1. ART. III, Sec. 5. No law shall be made respecting an establishment of


religion, or prohibiting the free exercise thereof. The free exercise and
enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. NO RELIGIOUS TEST SHALL
BE REQUIRED FOR THE EXERCISE OF CIVIL OR POLITICAL
RIGHTS.

2. ART. VI, Sec. 28 (3). Charitable institutions, churches, mosques, non-


profit cemeteries…actually, directly and exclusively used for religious,
charitable, or educational purposes shall be exempt from taxation.

3. ART. VI, Sec. 29 .(2). No public money or property shall be


appropriated, applied, paid, for the benefit, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination or religion,
except when such priest, minister.. is assigned to the armed forces, or to
any penal institution, or government orphanage or leprosarium.

4. ART. IX, C, 2(5). Religious denominations and sects shall not be


registered…as political parties. (NOTE: Religious organizations are also
prohibited ion connection with sectoral representatives under Art. VI)

5. ART. XIV, Sec. 3(3). At the option in writing by parents, religion shall
be allowed to be taught to their children in elementary and high schools
within the regular class hours by instructors designated or approved by
religious authorities to which said children belong, without additional
cost to the government.

Sections 7. The State shall pursue an independent


foreign policy. In its relations with other states the
paramount consideration shall be national sovereignty,
territorial integrity, national interest, and the right to
self-determination,

Section 8. The Philippines, consistent with the national


interest, adopts and pursues a policy of freedom from
nuclear weapons in its territory.

1. meaning of "nuclear-free" Philippines;


2. . Art. XVIII, Secs. 4 & 25

Sections 9. The State shall promote a just and dynamic


social order that will ensure the prosperity and
independence of the nation and free the people from
poverty through policies that provide adequate social
services, promote full employment, a rising standard of
living, and an improved quality of life for all..

Section 10. The state shall promote social justice in all


phases of national development.
20

Section 11. The state values the dignity of every human


person and guarantees full respect for human rights.

a. Read together with entire provisions of Article XIII

Section 12. The State recognizes the sanctity of family


life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from
conception. The natural and primary right and duty of
parents in the rearing of the youth for civil efficiency and
the development of moral character shall receive the
support the support of the government.

NOTE: Father Bernas opines that this provision does not take a stand on
divorce. As such, a Divorce Law to be passed by Congress may or may not be
unconstitutional. But definitely, a law allowing abortion , other than therapeutic,
is unconstitutional.

1. Read together with the entire provisions of Article XV.

2. Read:
a) GINSBERG VS. NEW YORK, 390 US 629 (1969)

A law prohibiting the sale of “girlie magazines” [bold?) is constitutional and


does not violate the above provision. This is so because parents could buy
said magazines for their children if they believe the same is already suitable
to the understanding of their child. This is in accordance with this provision
which states that the parents have the “natural and primary right in rearing
their child for civic efficiency…”
b) MEYER VS. NEBRASKA, 260 US 260 (1922)
c) PIERCE VS. SOCIETY OF SISTERS, 268 US 510 (1925)

A law requiring small kids to be enrolled in public schools only is


unconstitutional since it interferes with the right of parents in rearing their
children. They have the right to choose which school is best suited for the
development of their children without interference from the State.

d) PACU VS. SECRETARY OF EDUCATION, 97 Phil. 806


e) CABANAS VS. PILAPIL, 58 SCRA 94

Section 13. The State recognizes the vital role of the


youth in nation-building and shall promote and protect
their physical, moral, spiritual, intellectual, and social
well being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public
and civic affairs.

Read:
1) PD 684
2) PD 935
3) PD 1102
4) PD 603; see the objectives of the law
21

Sections 14. The State recognizes the role of women in


nation building, and shall ensure the fundamental
equality before the law of men and women.

Section 15. The State shall protect and promote the right
to health of the people and instill health consciousness
among them.

Section 16. The State shall protect and advance the right
of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.

Section 17. The State shall give priority to education,


science and technology, arts, culture, and sports to foster
patriotism and nationalism, accelerate social progress,
and promote human liberation and development.

1) Read together with Article XIV


Read :
VILLEGAS VS. SUBIDO, 109 SCRA 1
OPOSA VS. FACTORAN, July 30, 1993;

In a broader sense, this petition bears upon the right


of Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."

The minors-petitioners have the personality to sue


since the case deals with the timber licensing agreements
entered into by the government which if not stopped would
be prejudicial to their future. This is so because the DENR
holds in trust for the benefit of plaintiff minors and
succeeding generations the natural resources of the
country. The subject matter of the complaint is of common
and general interest not just to several, but to all citizens of
the Philippines. Consequently, since the parties are so
numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous
and representative enough to ensure the full protection of
all concerned interests. Hence, all the requisites for the
filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil
case and in the instant petition, the latter being but an
incident to the former.
Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and
22

harmony of nature." Nature means the created world in its


entirety. 9 Such rhythm and harmony indispensably
include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present as well as future generations.
Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full
enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for
the generations to come.

The complaint focuses on one specific fundamental


legal right the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly
provides:

Sec. 16. The State shall protect and advance the


right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of
nature.
This right unites with the right to health which is
provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the
right to health of the people and instill health
consciousness among them.

While the right to a balanced and healthful ecology is


to be found under the Declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation
aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind.
If they are now explicitly mentioned in the fundamental
charter, it is because of the well-founded fear of its framers
that unless the rights to a balanced and healthful ecology
and to health are mandated as state policies by the
Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the
second, the day would not be too far when all else would
be lost not only for the present generation, but also for
23

those to come generations which stand to inherit nothing


but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with


it the correlative duty to refrain from impairing the
environment.

As a matter of logic, by finding petitioners' cause of


action as anchored on a legal right comprised in the
constitutional statements above noted, the Court is in effect
saying that Section 15 (and Section 16) of Article II of the
Constitution are self-executing and judicially enforceable
even in their present form. The implications of this
doctrine will have to be explored in future cases; those
implications are too large and far-reaching in nature even
to be hinted at here.

Section 18. The State affirms labor as a primary social


economic force. It shall protect the rights of workers and
promote their welfare.

1) Read together with Section 3, Article XIII, 1987 Constitution.


2) Compare it with Section 9, Article II, 1973 Constitution.
3) Read:

a. VICTORIANO VS. ELIZALDE POPE WORKERS UNION, 59 SCRA 54

The right to religion prevails over contractual or legal rights. As such,


an Iglesia Ni Kristo member may refuse to join a Union and despite the fact
that there is a closed shop agreement in the establishment where he was
employed, his employment could not be validly terminated for his non-
membership in the majority union therein.

Section 19. The State shall develop a self-reliant and


independent national economy effectively controlled by
Filipinos.

See Art. XII

Section 20. The State recognizes the indispensable role of


the private sector, encourages private enterprise, and
provides incentives to needed investments.

a. Do we practice the free enterprise system in the Philippines or is it the


welfare state concept? Distinguish the two.

b. Read: ACCFA VS. CUGCO, 30 SCRA 649 (Note: Read the separate
opinion of former Chief Justice ENRIQUE FERNANDO only)

The Philippines never practiced the free enterprise system. It is the


welfare-state concept which is being followed as shown by the constitutional
provision on agrarian reform, housing, protection to labor… (NOTE,
however, that the 1987 Constitution have provisions which provide for “free
enterprise)
24

PHILIPPINE COCONUT DESICCATORS VS.


PHILIPPINE COCONUT AUTHORITY, 286 SCRA
109

Mendoza, J.

The Philippine Constitutions, starting from the 1935


document, HAVE REPUDIATED laissez faire (or the
doctrine of free enterprise) as an economic principle, and
although the present Constitution enshrines free enterprise
as a policy, it nevertheless reserves to the government the
power to intervene whenever necessary to promote the
general welfare.

As such, free enterprise does not call for the removal


of “protective regulations” for the benefit of the general
public. This is so because under Art. XII, Sections 6 and 9,
it is very clear that the government reserves the power to
intervene whenever necessary to promote the general
welfare and when the public interest so requires.

Section 21. The State shall promote comprehensive rural


development and agrarian reform.

a. Read together with Secs. 4-10, Article XIII of the 1987 Constitution

b. Read PD 27 - as to the extent of land reform under the MARCOS regime

c. Read RA 3844 & 6389, as amended - THE CODE OF AGRARIAN


REFORMS OF THE PHILIPPINES (Read the policy of the state on this matter)

d .Read the COMPREHENSIVE AGRARIAN REFORM PROGRAM LAW,


RA No. 6657 as signed into law by the President on June 7, 1988.

e. Read:

Association of Small Landowners vs. Hon. Secretary of Agrarian Reform,


July 14, 1989

Sections 22. The State recognizes and promotes the right


of indigenous cultural communities within the
framework of national unity and development.
To be discussed later with Art. X, Secs. 15- 21.

Other provisions on indigenous cultural communities:

1. Art. VI, Sec. 5(2)


2. Art. X, Secs. 15 - 21
3. Art. XII, Sec. 5
4. Art. XIII, Sec. 6
5. Art. XIV, Sec. 17
6. Art. XVI, Sec. 12
25

Section 23. The State shall encourage non-governmental,


community based, or sectoral organizations that promote
the welfare of the nation.

Section 24. The State recognizes the vital role of


communication and information in nation-building.

Section 25. The State shall ensure the autonomy of local


governments.

a. Define "autonomy"

b. See Art. X

Read the 1991 New Local Government Code and enumerate its provisions
evidencing "autonomy" to local government units.

Section 26. The State guarantee equal access to


opportunities for public service, and prohibit political
dynasties as may be defined by law.

Section 27. The State shall maintain honesty and


integrity in the public service and take positive and
effective measures against graft and corruption.

To be discussed under Article XI.

a. Please see RA 3019, The Anti-Graft and Corrupt Practices Act, as


amended by RA 3047, PD 77 and BP 195..
b. PD 749, July 18, 1975, which grants immunity from prosecution to givers
of bribes and other gifts and to their accomplices in bribery other than graft cases
against public officers.
c. RA 1379. Forfeiture in favor of the State any property found to have been
illegally acquired by a public officer or employee.

Section 28. Subject to reasonable conditions prescribed


by law, the State adopts and implements a policy of public
disclosure of all its transactions involving public interest.

Power of Congress to conduct inquiries in aid


of legislation; Public disclosure of government
transactions

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,


October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced


Philippine Senate Resolution No. 455 (Senate Res. No. 455), 1[4] “directing an
1[4]
Annex “E” of the Petition in G.R. No. 174318.
26

inquiry in aid of legislation on the anomalous losses incurred by the Philippines


Overseas Telecommunications Corporation (POTC), Philippine Communications
Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation
(PHC) due to the alleged improprieties in their operations by their respective
Board of Directors.” The pertinent portions of the Resolution read:

WHEREAS, in the last quarter of 2005, the representation and


entertainment expense of the PHC skyrocketed to P4.3 million, as
compared to the previous year’s mere P106 thousand;

WHEREAS, some board members established wholly owned


PHC subsidiary called Telecommunications Center, Inc. (TCI), where
PHC funds are allegedly siphoned; in 18 months, over P73 million had
been allegedly advanced to TCI without any accountability report
given to PHC and PHILCOMSAT;

WHEREAS, the Philippine Star, in its 12 February 2002 issue


reported that the executive committee of Philcomsat has precipitately
released P265 million and granted P125 million loan to a relative of an
executive committee member; to date there have been no payments
given, subjecting the company to an estimated interest income loss of
P11.25 million in 2004;

WHEREFORE, be it resolved that the proper Senate


Committee shall conduct an inquiry in aid of legislation, on the
anomalous losses incurred by the Philippine Overseas
Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
Philcomsat Holdings Corporations (PHC) due to the alleged
improprieties in the operations by their respective board of
directors.

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of


Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of
the herein petitioners, inviting him to be one of the resource persons in the public
meeting jointly conducted by the Committee on Government Corporations and
Public Enterprises and Committee on Public Services. The purpose of the public
meeting was to deliberate on Senate Res. No. 455. 2[6] On May 9, 2006, Chairman
Sabio declined the invitation because of prior commitment. 3[7] At the same time,
he invoked Section 4(b) of E.O. No. 1 earlier quoted. On August 10, 2006,
Senator Gordon issued a Subpoena Ad Testificandum,4[8] approved by Senate
President Manuel Villar, requiring Chairman Sabio and PCGG Commissioners
Ricardo Abcede, Nicasio Conti, Tereso Javier and Narciso Nario to appear in
the public hearing scheduled on August 23, 2006 and testify on what they know
relative to the matters specified in Senate Res. No. 455. All were disregarded by
the petitioners.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia


arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA,
Mandaluyong City and brought him to the Senate premises where he was
detained.
2[6]
Annex “F” of the Petition in G.R. No. 174318.
3[7]
Annex “G” of the Petition in G.R. No. 174318.
4[8]
Annex “A” of the Petition in G.R. No. 174318.
27

Hence, Chairman Sabio filed with the Supreme Court a petition for habeas
corpus against the Senate Committee on Government Corporations and Public
Enterprises and Committee on Public Services, their Chairmen, Senators Richard
Gordon and Joker P. Arroyo and Members. The case was docketed as G.R. No.
174340.

Chairman Sabio, Commissioners Abcede, Conti, Nario, and Javier; and the
PCGG’s nominees Andal and Jalandoni alleged: first, respondent Senate
Committees disregarded Section 4(b) of E.O. No. 1 without any justifiable reason;
second, the inquiries conducted by respondent Senate Committees are not in aid
of legislation; third, the inquiries were conducted in the absence of duly published
Senate Rules of Procedure Governing Inquiries in Aid of Legislation; and fourth,
respondent Senate Committees are not vested with the power of contempt.

In their Consolidated Comment, the above-named respondents countered:


first, the issues raised in the petitions involve political questions over which this
Court has no jurisdiction; second, Section 4(b) has been repealed by the
Constitution; third, respondent Senate Committees are vested with contempt
power; fourth, Senate’s Rules of Procedure Governing Inquiries in Aid of
Legislation have been duly published; fifth, respondents have not violated any
civil right of the individual petitioners, such as their (a) right to privacy; and (b)
right against self-incrimination; and sixth, the inquiry does not constitute undue
encroachment into justiciable controversies.

I S S U E:

Is Section 4(b) of E.O. No. 1 repealed by the 1987 Constitution? Is its


implementation wherein the petitioners are exempt from appearing in
investigations involving their transactions violates Section 28, Art. II of the
Constitution?

HELD:

Section 4(b) of E.O. No.1, which limits the power of legislative inquiry by
exempting all PCGG members or staff from testifying in any judicial, legislative
or administrative proceeding provides:

No member or staff of the Commission shall be


required to testify or produce evidence in any judicial,
legislative or administrative proceeding concerning
matters within its official cognizance.

Said provision of EO No. 1 violates Section 28, Art. II of the


Constitution which mandates that “Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.”

Read together with Section 7, Article III, Sec. 20, Art. VI and Section 1,
Art. XI of the 1987 Constitution.
28

PART V
ARTICLE VI - THE LEGISLATIVE DEPARTMENT

Section 1. The legislative power shall be vested in the


Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative
and referendum.

a. Define legislative power


- Basic concepts of the grant of legislative power:

1. it cannot pass irrepealable laws


2. principle of separation of powers
3. non-delegability of legislative powers

- reason for principle that the legislature cannot pass irrepeablable laws

- Separation of Powers

Read:
a. ANGARA VS. ELECTORAL COMMISSION, 63 Phil. 139
b. PLANAS VS. GIL, 67 Phil. 62
c. LUZON STEVEDORING VS. SSS, 34 SCRA 178
d. GARCIA VS. MACARAIG, 39 SCRA 106
e. Bondoc vs. HRET, Sept. 26, 1991
f. DEFENSOR SANTIAGO VS. COMELEC, 270 SCRA 106

b. Nature of legislative power

c. What are the limitations to the grant of legislative powers to the legislature?

d. Explain the doctrine of non-delegation power.

e. Permissive delegation of legislative power.

1) Sec. 23 (2) of Article VI (Emergency powers to the President


in case of war or other national emergency, for a limited period and
subject to such restrictions as Congress may provide, to exercise
powers necessary and proper to carry out a declared national policy.
Unless sooner withdrawn by Resolution of Congress, such powers
shall cease upon the next adjournment thereof.

2) Sec. 28 (2) of Article VI. The Congress may by law,


authorize the President to fix within specified limits, and subject to
such limitations and restrictions as it may impose, tariff rates, import
and export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development program of
the government.

- Other exceptions: traditional


3) Delegation to local governments
29

The reason behind this delegation is because the local government is


deemed to know better the needs of the people therein.

a. See Section 5 of Article X

b. Read:
aa. RUBI VS. PROVINCIAL BOARD, 39 Phil. 660
bb. PEOPLE VS. VERA, 65 Phil 56

A law delegating to the local government units the power to fund the
salary of probation officers in their area is unconstitutional for violation of
the equal protection of the laws. In areas where there is a probation officer
because the local government unit appropriated an amount for his salaries,
convicts may avail of probation while in places where no funds were set
aside for probation officers, convicts therein could not apply for probation.

d. Reason for the delegation

4) Delegation of Rule-making power to administrative bodies

5) Delegation to the People (Section 2, Art. XVII of the Constitution and


Section 32, Article VI---The Congress shall, as early as possible, provide for a
system of initiative and referendum, and the exceptions therefrom, whereby the
people can directly propose and enact laws or approve or reject any act or law or
part thereof passed by the Congress of local legislative body after the registration
of a petition thereof signed by at least 10% of the total number of registered
voters, of which every legislative district must be represented by at least 3% of the
registered voters thereof.

f. Delegation of rule-making power to administrative bodies.

1) What is the completeness test? The sufficiency of standard test?

Read: 1. PELAEZ VS. AUDITOR GENERAL, 15 SCRA 569

During the period from September 4 to October 29,


1964 the President of the Philippines, purporting to act
pursuant to Section 68 of the Revised Administrative Code,
issued Executive Orders Nos. 93 to 121, 124 and 126 to
129; creating thirty-three (33) municipalities

The third paragraph of Section 3 of Republic Act No.


2370, reads:

Barrios shall not be created or their boundaries altered nor


their names changed except under the provisions of this
Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same


Section 3:

All barrios existing at the time of the passage of this


Act shall come under the provisions hereof.
30

Upon petition of a majority of the voters in the areas


affected, a new barrio may be created or the name of an
existing one may be changed by the provincial board of the
province, upon recommendation of the council of the
municipality or municipalities in which the proposed barrio
is stipulated. The recommendation of the municipal council
shall be embodied in a resolution approved by at least two-
thirds of the entire membership of the said council:
Provided, however, That no new barrio may be created if
its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act


No. 2370 became effective, barrios may "not be created or
their boundaries altered nor their names changed" except
by Act of Congress or of the corresponding provincial
board "upon petition of a majority of the voters in the areas
affected" and the "recommendation of the council of the
municipality or municipalities in which the proposed barrio
is situated." Petitioner argues, accordingly: "If the
President, under this new law, cannot even create a barrio,
can he create a municipality which is composed of several
barrios, since barrios are units of municipalities?"

Moreover, section 68 of the Revised Administrative


Code, upon which the disputed executive orders are based,
provides:

The (Governor-General) President of the Philippines


may by executive order define the boundary, or boundaries,
of any province, subprovince, municipality, [township]
municipal district, or other political subdivision, and
increase or diminish the territory comprised therein, may
divide any province into one or more subprovinces,
separate any political division other than a province, into
such portions as may be required, merge any of such
subdivisions or portions with another, name any new
subdivision so created, and may change the seat of
government within any subdivision to such place therein as
the public welfare may require: Provided, That the
authorization of the (Philippine Legislature) Congress of
the Philippines shall first be obtained whenever the
boundary of any province or subprovince is to be defined
or any province is to be divided into one or more
subprovinces. When action by the (Governor-General)
President of the Philippines in accordance herewith makes
necessary a change of the territory under the jurisdiction of
any administrative officer or any judicial officer, the
(Governor-General) President of the Philippines, with the
recommendation and advice of the head of the Department
having executive control of such officer, shall redistrict the
territory of the several officers affected and assign such
officers to the new districts so formed.

Respondent alleges that the power of the President to


create municipalities under this section does not amount to
31

an undue delegation of legislative power, relying upon


Municipality of Cardona vs. Municipality of Binañgonan
(36 Phil. 547), which, he claims, has settled it. Such claim
is untenable, for said case involved, not the creation of a
new municipality, but a mere transfer of territory from an
already existing municipality (Cardona) to another
municipality (Binañgonan), likewise, existing at the time
of and prior to said transfer (See Gov't of the P.I. ex rel.
Municipality of Cardona vs. Municipality, of Binañgonan
[34 Phil. 518, 519-5201) in consequence of the fixing and
definition, pursuant to Act No. 1748, of the common
boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix


such common boundary, in order to avoid or settle conflicts
of jurisdiction between adjoining municipalities, may
partake of an administrative nature involving, as it does,
the adoption of means and ways to carry into effect the law
creating said municipalities the authority to create
municipal corporations is essentially legislative in nature.

Although 1a Congress may delegate to another


branch of the Government the power to fill in the details in
the execution, enforcement or administration of a law, it is
essential, to forestall a violation of the principle of
separation of powers, that said law:

(a) be complete in itself it must set forth therein the


policy to be executed, carried out or implemented by the
delegate and
(b) fix a standard the limits of which are sufficiently
determinate or determinable to which the delegate must
conform in the performance of his functions.

Indeed, without a statutory declaration of policy, the


delegate would in effect, make or formulate such policy,
which is the essence of every law; and, without the
aforementioned standard, there would be no means to
determine, with reasonable certainty, whether the delegate
has acted within or beyond the scope of his authority.
Hence, he could thereby arrogate upon himself the power,
not only to make the law, but, also and this is worse to
unmake it, by adopting measures inconsistent with the end
sought to be attained by the Act of Congress, thus
nullifying the principle of separation of powers and the
system of checks and balances, and, consequently,
undermining the very foundation of our Republican
system.

Section 68 of the Revised Administrative Code does


not meet these well settled requirements for a valid
delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to
be carried out or implemented by the President. Neither
does it give a standard sufficiently precise to avoid the evil
32

effects above referred to. In this connection, we do not


overlook the fact that, under the last clause of the first
sentence of Section 68, the President:

... may change the seat of the government within any


subdivision to such place therein as the public welfare may
require.

At any rate, the conclusion would be the same,


insofar as the case at bar is concerned, even if we assumed
that the phrase "as the public welfare may require," in said
Section 68, qualifies all other clauses thereof. It is true that
in Calalang vs. Williams (70 Phil. 726) and People vs.
Rosenthal (68 Phil. 328), this Court had upheld "public
welfare" and "public interest," respectively, as sufficient
standards for a valid delegation of the authority to execute
the law. But, the doctrine laid down in these cases as all
judicial pronouncements must be construed in relation to
the specific facts and issues involved therein, outside of
which they do not constitute precedents and have no
binding effect. The law construed in the Calalang case
conferred upon the Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, the power to issue rules and regulations
to promote safe transit upon national roads and streets.
Upon the other hand, the Rosenthal case referred to the
authority of the Insular Treasurer, under Act No. 2581, to
issue and cancel certificates or permits for the sale of
speculative securities. Both cases involved grants to
administrative officers of powers related to the exercise of
their administrative functions, calling for the determination
of questions of fact.

2 . TUPAS VS. OPLE, 137 SCRA 108 (Most representative)


3. US VS. ANG TANG HO, 43 Phil. 1

At its special session of 1919, the Philippine


Legislature passed Act No. 2868, entitled "An Act
penalizing the monopoly and holding of, and speculation
in, palay, rice, and corn under extraordinary circumstances,
regulating the distribution and sale thereof, and authorizing
the Governor-General, with the consent of the Council of
State, to issue the necessary rules and regulations therefor,
and making an appropriation for this purpose," the material
provisions of which are as follows:

Section 1. The Governor-General is hereby authorized,


whenever, for any cause, conditions arise resulting in an
extraordinary rise in the price of palay, rice or corn, to
issue and promulgate, with the consent of the Council of
State, temporary rules and emergency measures for
carrying out the purpose of this Act, to wit:
(a) To prevent the monopoly and hoarding of, and
speculation in, palay, rice or corn.
33

August 1, 1919, the Governor-General issued a


proclamation fixing the price at which rice should be sold.
August 8, 1919, a complaint was filed against the
defendant, Ang Tang Ho, charging him with the sale of rice
at an excessive price as follows:

The undersigned accuses Ang Tang Ho of a violation of


Executive Order No. 53 of the Governor-General of the
Philippines, dated the 1st of August, 1919, in relation with
the provisions of sections 1, 2 and 4 of Act No. 2868,
committed as follows:
That on or about the 6th day of August, 1919, in the city of
Manila, Philippine Islands, the said Ang Tang Ho,
voluntarily, illegally and criminally sold to Pedro Trinidad,
one ganta of rice at the price of eighty centavos (P.80),
which is a price greater than that fixed by Executive Order
No. 53 of the Governor-General of the Philippines, dated
the 1st of August, 1919, under the authority of section 1 of
Act No. 2868. Contrary to law.

Upon this charge, he was tried, found guilty and sentenced


to five months' imprisonment and to pay a fine of P500,
from which he appealed to this court, claiming that the
lower court erred in finding Executive Order No. 53 of
1919, to be of any force and effect, in finding the accused
guilty of the offense charged, and in imposing the sentence.
The official records show that the Act was to take effect on
its approval; that it was approved July 30, 1919; that the
Governor-General issued his proclamation on the 1st of
August, 1919; and that the law was first published on the
13th of August, 1919; and that the proclamation itself was
first published on the 20th of August, 1919.

The question here involves an analysis and construction of


Act No. 2868, in so far as it authorizes the Governor-
General to fix the price at which rice should be sold. It will
be noted that section 1 authorizes the Governor-General,
with the consent of the Council of State, for any cause
resulting in an extraordinary rise in the price of palay, rice
or corn, to issue and promulgate temporary rules and
emergency measures for carrying out the purposes of the
Act. By its very terms, the promulgation of temporary rules
and emergency measures is left to the discretion of the
Governor-General. The Legislature does not undertake to
specify or define under what conditions or for what reasons
the Governor-General shall issue the proclamation, but
says that it may be issued "for any cause," and leaves the
question as to what is "any cause" to the discretion of the
Governor-General. The Act also says: "For any cause,
conditions arise resulting in an extraordinary rise in the
price of palay, rice or corn." The Legislature does not
specify or define what is "an extraordinary rise." That is
also left to the discretion of the Governor-General. The Act
also says that the Governor-General, "with the consent of
the Council of State," is authorized to issue and promulgate
34

"temporary rules and emergency measures for carrying out


the purposes of this Act." It does not specify or define what
is a temporary rule or an emergency measure, or how long
such temporary rules or emergency measures shall remain
in force and effect, or when they shall take effect. That is to
say, the Legislature itself has not in any manner specified
or defined any basis for the order, but has left it to the sole
judgment and discretion of the Governor-General to say
what is or what is not "a cause," and what is or what is not
"an extraordinary rise in the price of rice," and as to what
is a temporary rule or an emergency measure for the
carrying out the purposes of the Act. Under this state of
facts, if the law is valid and the Governor-General issues a
proclamation fixing the minimum price at which rice
should be sold, any dealer who, with or without notice,
sells rice at a higher price, is a criminal. There may not
have been any cause, and the price may not have been
extraordinary, and there may not have been an emergency,
but, if the Governor-General found the existence of such
facts and issued a proclamation, and rice is sold at any
higher price, the seller commits a crime.

By the organic law of the Philippine Islands and the


Constitution of the United States all powers are vested in
the Legislative, Executive and Judiciary. It is the duty of
the Legislature to make the law; of the Executive to
execute the law; and of the Judiciary to construe the law.
The Legislature has no authority to execute or construe the
law, the Executive has no authority to make or construe the
law, and the Judiciary has no power to make or execute the
law. Subject to the Constitution only, the power of each
branch is supreme within its own jurisdiction, and it is for
the Judiciary only to say when any Act of the Legislature is
or is not constitutional. Assuming, without deciding, that
the Legislature itself has the power to fix the price at which
rice is to be sold, can it delegate that power to another, and,
if so, was that power legally delegated by Act No. 2868? In
other words, does the Act delegate legislative power to the
Governor-General? By the Organic Law, all Legislative
power is vested in the Legislature, and the power conferred
upon the Legislature to make laws cannot be delegated to
the Governor-General, or any one else. The Legislature
cannot delegate the legislative power to enact any law. If
Act no 2868 is a law unto itself and within itself, and it
does nothing more than to authorize the Governor-General
to make rules and regulations to carry the law into effect,
then the Legislature itself created the law. There is no
delegation of power and it is valid. On the other hand, if
the Act within itself does not define crime, and is not a law,
and some legislative act remains to be done to make it a
law or a crime, the doing of which is vested in the
Governor-General, then the Act is a delegation of
legislative power, is unconstitutional and void.
35

The act, in our judgment, wholly fails to provide


definitely and clearly what the standard policy should
contain, so that it could be put in use as a uniform policy
required to take the place of all others, without the
determination of the insurance commissioner in respect to
maters involving the exercise of a legislative discretion
that could not be delegated, and without which the act
could not possibly be put in use as an act in conformity to
which all fire insurance policies were required to be issued.

The result of all the cases on this subject is that a law


must be complete, in all its terms and provisions, when it
leaves the legislative branch of the government, and
nothing must be left to the judgment of the electors or
other appointee or delegate of the legislature, so that, in
form and substance, it is a law in all its details in presenti,
but which may be left to take effect in futuro, if necessary,
upon the ascertainment of any prescribed fact or event.

4. TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208


5. FREE TELEPHONE WORKERS UNION, 108 SCRA 757
(Affecting National interest)
6. PHILCOMSAT VS. ALCUAZ, December 18, 1989

Fundamental is the rule that delegation of legislative


power may be sustained only upon the ground that some
standard for its exercise is provided and that the legislature
in making the delegation has prescribed the manner of the
exercise of the delegated power. Therefore, when the
administrative agency concerned, respondent NTC in this
case, establishes a rate, its act must both be non-
confiscatory and must have been established in the manner
prescribed by the legislature; otherwise, in the absence of a
fixed standard, the delegation of power becomes
unconstitutional. In case of a delegation of rate-fixing
power, the only standard which the legislature is required
to prescribe for the guidance of the administrative authority
is that the rate be reasonable and just. However, it has been
held that even in the absence of an express requirement as
to reasonableness, this standard may be implied.

It becomes important then to ascertain the nature of


the power delegated to respondent NTC and the manner
required by the statute for the lawful exercise thereof.

Pursuant to Executive Orders Nos. 546 and 196,


respondent NTC is empowered, among others, to
determine and prescribe rates pertinent to the operation of
public service communications which necessarily include
the power to promulgate rules and regulations in
connection therewith. And, under Section 15(g) of
Executive Order No. 546, respondent NTC should be
guided by the requirements of public safety, public interest
and reasonable feasibility of maintaining effective
competition of private entities in communications and
36

broadcasting facilities. Likewise, in Section 6(d) thereof,


which provides for the creation of the Ministry of
Transportation and Communications with control and
supervision over respondent NTC, it is specifically
provided that the national economic viability of the entire
network or components of the communications systems
contemplated therein should be maintained at reasonable
rates.

II. On another tack, petitioner submits that the


questioned order violates procedural due process because it
was issued motu proprio, without notice to petitioner and
without the benefit of a hearing. Petitioner laments that
said order was based merely on an "initial evaluation,"
which is a unilateral evaluation, but had petitioner been
given an opportunity to present its side before the order in
question was issued, the confiscatory nature of the rate
reduction and the consequent deterioration of the public
service could have been shown and demonstrated to
respondents. Petitioner argues that the function involved in
the rate fixing-power of NTC is adjudicatory and hence
quasi-judicial, not quasi- legislative; thus, notice and
hearing are necessary and the absence thereof results in a
violation of due process.

Respondents admit that the application of a policy


like the fixing of rates as exercised by administrative
bodies is quasi-judicial rather than quasi-legislative: that
where the function of the administrative agency is
legislative, notice and hearing are not required, but where
an order applies to a named person, as in the instant case,
the function involved is adjudicatory. Nonetheless, they
insist that under the facts obtaining the order in question
need not be preceded by a hearing, not because it was
issued pursuant to respondent NTC's legislative function
but because the assailed order is merely interlocutory, it
being an incident in the ongoing proceedings on
petitioner's application for a certificate of public
convenience; and that petitioner is not the only primary
source of data or information since respondent is currently
engaged in a continuing review of the rates charged.

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service


Commission, we made a categorical classification as to
when the rate-filing power of administrative bodies is
quasi-judicial and when it is legislative, thus:

Moreover, although the rule-making power and even


the power to fix rates- when such rules and/or rates are
meant to apply to all enterprises of a given kind throughout
the Philippines-may partake of a legislative character, such
is not the nature of the order complained of. Indeed, the
same applies exclusively to petitioner herein. What is
37

more, it is predicated upon the finding of fact-based upon a


report submitted by the General Auditing Office-that
petitioner is making a profit of more than 12% of its
invested capital, which is denied by petitioner. Obviously,
the latter is entitled to cross-examine the maker of said
report, and to introduce evidence to disprove the contents
thereof and/or explain or complement the same, as well as
to refute the conclusion drawn therefrom by the
respondent. In other words, in making said finding of fact,
respondent performed a function partaking of a quasi-
judicial character, the valid exercise of which demands
previous notice and hearing.

This rule was further explained in the subsequent


case of The Central Bank of the Philippines vs. Cloribel,
et al. to wit:

It is also clear from the authorities that where the


function of the administrative body is legislative, notice of
hearing is not required by due process of law (See
Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204,
supra, where it is said: 'If the nature of the administrative
agency is essentially legislative, the requirements of notice
and hearing are not necessary. The validity of a rule of
future action which affects a group, if vested rights of
liberty or property are not involved, is not determined
according to the same rules which apply in the case of the
direct application of a policy to a specific individual) ... It
is said in 73 C.J.S. Public Administrative Bodies and
Procedure, sec. 130, pages 452 and 453: 'Aside from
statute, the necessity of notice and hearing in an
administrative proceeding depends on the character of the
proceeding and the circumstances involved. In so far as
generalization is possible in view of the great variety of
administrative proceedings, it may be stated as a general
rule that notice and hearing are not essential to the validity
of administrative action where the administrative body acts
in the exercise of executive, administrative, or legislative
functions; but where a public administrative body acts in a
judicial or quasi-judicial matter, and its acts are particular
and immediate rather than general and prospective, the
person whose rights or property may be affected by the
action is entitled to notice and hearing.

The order in question which was issued by


respondent Alcuaz no doubt contains all the attributes of a
quasi-judicial adjudication. Foremost is the fact that said
order pertains exclusively to petitioner and to no other.
Further, it is premised on a finding of fact, although
patently superficial, that there is merit in a reduction of
some of the rates charged- based on an initial evaluation of
petitioner's financial statements-without affording
petitioner the benefit of an explanation as to what
particular aspect or aspects of the financial statements
warranted a corresponding rate reduction. No
38

rationalization was offered nor were the attending


contingencies, if any, discussed, which prompted
respondents to impose as much as a fifteen percent (15%)
rate reduction. It is not far-fetched to assume that petitioner
could be in a better position to rationalize its rates vis-a-vis
the viability of its business requirements. The rates it
charges result from an exhaustive and detailed study it
conducts of the multi-faceted intricacies attendant to a
public service undertaking of such nature and magnitude.
We are, therefore, inclined to lend greater credence to
petitioner's ratiocination that an immediate reduction in its
rates would adversely affect its operations and the quality
of its service to the public considering the maintenance
requirements, the projects it still has to undertake and the
financial outlay involved. Notably, petitioner was not even
afforded the opportunity to cross-examine the inspector
who issued the report on which respondent NTC based its
questioned order.

At any rate, there remains the categorical admission


made by respondent NTC that the questioned order was
issued pursuant to its quasi-judicial functions. It, however,
insists that notice and hearing are not necessary since the
assailed order is merely incidental to the entire proceedings
and, therefore, temporary in nature. This postulate is bereft
of merit.

g. May rules and regulations promulgated by administrative bodies/agencies


have the force of law? penal law? In order to be considered as one with the force
and effect of a penal law, what conditions must concur? See U.S. vs.
GRIMMAUD, 220 U.S. 506 (1911) or the 1987 PHILIPPINE CONSTITUTION -
a reviewer - Primer by FR. JOAQUIN BERNAS, 1987 edition.

5. PEO. VS. ROSENTHAL, 68 Phil. 328


6. US VS. BARRIAS, 11 Phil. 327
7. VILLEGAS VS. HIU CHIONG TSAI PAO HO, 86 SCRA 270

h. Delegation to the people. See Section 2(1) of Art. XVII.

i. Classify the membership of the legislative department.

j. Manner of election and selection


1) Read again TUPAS VS. OPLE, 137 SCRA 108

Sections 2. The Senate shall be composed of twenty-four


Senators who shall be elected at large by the qualified
voters of the Philippines, as may be provided for by law.

Section 3. No person shall be a Senator unless he is a


natural-born citizen of the Philippines, and, on the day of
the election, is at least 35 years of age, able to read and
write, a registered voter, and a resident of the Philippines
for not less than 2 years immediately preceding the day of
the election.
39

Section 4. The term of office of the Senators shall be six


years and shall commence, unless otherwise provided by
law, at noon on the 30th day of June next following their
election.

No Senator shall serve for more than two


consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an
interruption in the continuity of his service for the full
term for which he was elected.

Qualifications, term of office, etc., of a senator


or member of the House of Representatives.

Drug-testing requirement on all candidates


before their certificates of candidacy will be
admitted by the COMELEC,
unconstitutional.

SOCIAL JUSTICE SOCIETY (SJS)


DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT
AGENCY (PDEA),

ATTY. MANUEL J. LASERNA, JR vs.


DANGEROUS DRUGS BOARD and
PHILIPPINE DRUG ENFORCEMENT

AQUILINO Q. PIMENTEL, JR. Vsa.


COMMISSION ON ELECTIONS,
G.R. No. 161658, November 3, 2008

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act


No. (RA) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of
2002, insofar as it requires mandatory drug testing of [1]candidates for public
office, [2]students of secondary and tertiary schools, [3]officers and employees of
public and private offices, and[4] persons charged before the prosecutor’s office
with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing.—Authorized drug testing


shall be done by any government forensic laboratories or by any of the
drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing shall
employ, among others, two (2) testing methods, the screening test
which will determine the positive result as well as the type of drug
used and the confirmatory test which will confirm a positive screening
test. x x x The following shall be subjected to undergo drug testing:

xxxx
40

(c) Students of secondary and tertiary schools.—Students of


secondary and tertiary schools shall, pursuant to the related rules and
regulations as contained in the school’s student handbook and with
notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.—


Officers and employees of public and private offices, whether
domestic or overseas, shall be subjected to undergo a random drug test
as contained in the company’s work rules and regulations, x x x for
purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt with
administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor Code
and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor’s office with a


criminal offense having an imposable penalty of imprisonment of not
less than six (6) years and one (1) day shall undergo a mandatory drug
test;

(g) All candidates for public office whether appointed or elected


both in the national or local government shall undergo a mandatory
drug test.

In addition to the above stated penalties in this Section, those


found to be positive for dangerous drugs use shall be subject to the
provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued


Resolution No. 6486, prescribing the rules and regulations on the mandatory drug
testing of candidates for public office in connection with the May 10, 2004
synchronized national and local elections. The pertinent portions of the said
resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing.—x x x

xxxx

(g) All candidates for public office x x x both in the national or


local government shall undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution


provides that public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug


test, the public will know the quality of candidates they are electing
41

and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the


authority vested in it under the Constitution, Batas Pambansa Blg. 881
(Omnibus Election Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby promulgates, the following
rules and regulations on the conduct of mandatory drug testing to
candidates for public office[:]

SECTION 1. Coverage.—All candidates for public office, both


national and local, in the May 10, 2004 Synchronized National and
Local Elections shall undergo mandatory drug test in government
forensic laboratories or any drug testing laboratories monitored and
accredited by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with


their respective offices, the Comelec Offices and employees concerned
shall submit to the Law Department two (2) separate lists of
candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall
consist of those candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates.—


Before the start of the campaign period, the [COMELEC] shall prepare
two separate lists of candidates. The first list shall consist of those
candidates who complied with the mandatory drug test while the
second list shall consist of those candidates who failed to comply with
said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file


drug test certificate.—No person elected to any public office shall
enter upon the duties of his office until he has undergone mandatory
drug test and filed with the offices enumerated under Section 2 hereof
the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a


candidate for re-election in the May 10, 2004 elections, 5[1] filed a Petition for
Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g)
of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for
being unconstitutional in that they impose a qualification for candidates for
senators in addition to those already provided for in the 1987 Constitution; and (2)
to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the
Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural-


born citizen of the Philippines, and, on the day of the election, is at
least thirty-five years of age, able to read and write, a registered voter,
and a resident of the Philippines for not less than two years
immediately preceding the day of the election.
5 [1]
Re-elected as senator in the 2004 elections.
42

According to Pimentel, the Constitution only prescribes a maximum of five


(5) qualifications for one to be a candidate for, elected to, and be a member of the
Senate. He says that both the Congress and COMELEC, by requiring, via RA
9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to
undergo a mandatory drug test, create an additional qualification that all
candidates for senator must first be certified as drug free. He adds that there is no
provision in the Constitution authorizing the Congress or COMELEC to expand
the qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous


Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society
(SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board
(DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing
paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue delegation of
legislative power when they give unbridled discretion to schools and employers to
determine the manner of drug testing. For another, the provisions trench in the
equal protection clause inasmuch as they can be used to harass a student or an
employee deemed undesirable. And for a third, a person’s constitutional right
against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous


Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in
his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f),
and (g) of RA 9165 be struck down as unconstitutional for infringing on the
constitutional right to privacy, the right against unreasonable search and seizure,
and the right against self-incrimination, and for being contrary to the due process
and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the
matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB
and PDEA assert, SJS and Laserna failed to allege any incident amounting to a
violation of the constitutional rights mentioned in their separate petitions. 6[2]

It is basic that the power of judicial review can only be exercised in


connection with a bona fide controversy which involves the statute sought to be
reviewed.7[3] But even with the presence of an actual case or controversy, the
Court may refuse to exercise judicial review unless the constitutional question is
brought before it by a party having the requisite standing to challenge it. 8[4] To
have standing, one must establish that he or she has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the injury is likely to be
redressed by a favorable action.9[5]

6 [2]
Rollo (G.R. No. 158633), pp. 184-185.
7 [3]
Dumlao v. COMELEC, No. L-52245, January 22, 1980, 95 SCRA 392, 401.
8 [4]
Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 939 (2003).
9 [5]
Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733, 740.
43

The rule on standing, however, is a matter of procedure; hence, it can be


relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of paramount
public interest.10[6] There is no doubt that Pimentel, as senator of the Philippines
and candidate for the May 10, 2004 elections, possesses the requisite standing
since he has substantial interests in the subject matter of the petition, among other
preliminary considerations. Regarding SJS and Laserna, this Court is wont to
relax the rule on locus standi owing primarily to the transcendental importance
and the paramount public interest involved in the enforcement of Sec. 36 of RA
9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose
an additional qualification for candidates for senator? Corollarily, can Congress
enact a law prescribing qualifications for candidates for senator in addition to
those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right to privacy, the
right against unreasonable searches and seizure, and the equal protection clause?
Or do they constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC


Resolution No. 6486 illegally impose an additional qualification on candidates for
senator. He points out that, subject to the provisions on nuisance candidates, a
candidate for senator needs only to meet the qualifications laid down in Sec. 3,
Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3)
literacy, (4) age, and (5) residency. Beyond these stated qualification
requirements, candidates for senator need not possess any other qualification to
run for senator and be voted upon and elected as member of the Senate. The
Congress cannot validly amend or otherwise modify these qualification standards,
as it cannot disregard, evade, or weaken the force of a constitutional mandate, 11[7]
or alter or enlarge the Constitution.

Pimentel’s contention is well-taken. Accordingly, Sec. 36(g) of RA 9165


should be, as it is hereby declared as, unconstitutional. It is basic that if a law or
an administrative rule violates any norm of the Constitution, that issuance is null
and void and has no effect. The Constitution is the basic law to which all laws
must conform; no act shall be valid if it conflicts with the Constitution. 12[8] In the
discharge of their defined functions, the three departments of government have no
choice but to yield obedience to the commands of the Constitution. Whatever
limits it imposes must be observed.13[9]

10 [6]
Tatad v. Secretary of the Department of Energy, G.R. Nos. 124360 & 127867, November 5, 1997, 281 SCRA 330, 349; De Guia
v. COMELEC, G.R. No. 104712, May 6, 1992, 208 SCRA 420, 422.
11 [7]
Palmer v. Board of Education, 276 NY 222 11 NE 2d 887.
12 [8]
Cruz, CONSTITUTIONAL LAW 4 (2000).
13 [9]
Mutuc v. Commission on Elections, No. L-32717, November 26, 1970, 36 SCRA 228, 234.
44

Congress’ inherent legislative powers, broad as they may be, are subject to
certain limitations. As early as 1927, in Government v. Springer, the Court has
defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the
Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting
under delegated authority, the powers of each of the departments x x x
are limited and confined within the four walls of the constitution or the
charter, and each department can only exercise such powers as are
necessarily implied from the given powers. The Constitution is the
shore of legislative authority against which the waves of legislative
enactment may dash, but over which it cannot leap. 14[10]

Thus, legislative power remains limited in the sense that it is subject to


substantive and constitutional limitations which circumscribe both the exercise of
the power itself and the allowable subjects of legislation. 15[11] The substantive
constitutional limitations are chiefly found in the Bill of Rights 16[12] and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the
qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to implement
Sec. 36(g), validly impose qualifications on candidates for senator in addition to
what the Constitution prescribes. If Congress cannot require a candidate for
senator to meet such additional qualification, the COMELEC, to be sure, is also
without such power. The right of a citizen in the democratic process of election
should not be defeated by unwarranted impositions of requirement not otherwise
specified in the Constitution.17[13]

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed


COMELEC resolution, effectively enlarges the qualification requirements
enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g)
unmistakably requires a candidate for senator to be certified illegal-drug clean,
obviously as a pre-condition to the validity of a certificate of candidacy for
senator or, with like effect, a condition sine qua non to be voted upon and, if
proper, be proclaimed as senator-elect. The COMELEC resolution completes the
chain with the proviso that “[n]o person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug test.”
Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another qualification layer to what the
1987 Constitution, at the minimum, requires for membership in the Senate.
Whether or not the drug-free bar set up under the challenged provision is to be
hurdled before or after election is really of no moment, as getting elected would
be of little value if one cannot assume office for non-compliance with the drug-
testing requirement.

It ought to be made abundantly clear, however, that the unconstitutionality


of Sec. 36(g) of RA 9165 is rooted on its having infringed the constitutional
provision defining the qualification or eligibility requirements for one aspiring to
run for and serve as senator.

14 [10]
50 Phil. 259, 309 (1927).
15 [11]
J. Bernas, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 604 (1996).
16 [12]
Id.
17 [13]
See concurring opinion in Go v. Commision on Elections, G.R. No. 147741, May 10, 2001, 357 SCRA 739, 753.
45

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for
secondary and tertiary level students and public and private employees, while
mandatory, is a random and suspicionless arrangement. The objective is to stamp
out illegal drug and safeguard in the process “the well being of [the] citizenry,
particularly the youth, from the harmful effects of dangerous drugs.” This
statutory purpose, per the policy-declaration portion of the law, can be achieved
via the pursuit by the state of “an intensive and unrelenting campaign against the
trafficking and use of dangerous drugs x x x through an integrated system of
planning, implementation and enforcement of anti-drug abuse policies, programs
and projects.”18[14] The primary legislative intent is not criminal prosecution, as
those found positive for illegal drug use as a result of this random testing are not
necessarily treated as criminals. They may even be exempt from criminal liability
should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of
RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to


Confinement, Treatment and Rehabilitation.—A drug dependent or
any person who violates Section 15 of this Act may, by himself/herself
or through his/her parent, [close relatives] x x x apply to the Board x x
x for treatment and rehabilitation of the drug dependency. Upon such
application, the Board shall bring forth the matter to the Court which
shall order that the applicant be examined for drug dependency. If the
examination x x x results in the certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment
and rehabilitation in a Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the


Voluntary Submission Program.—A drug dependent under the
voluntary submission program, who is finally discharged from
confinement, shall be exempt from the criminal liability under Section
15 of this Act subject to the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the
physical, psychological, and addictive effects of drugs. Maturing nervous systems
of the young are more critically impaired by intoxicants and are more inclined to
drug dependency. Their recovery is also at a depressingly low rate. 19[15]

The right to privacy has been accorded recognition in this jurisdiction as a


facet of the right protected by the guarantee against unreasonable search and
seizure20[16] under Sec. 2, Art. III21[17] of the Constitution. But while the right to
privacy has long come into its own, this case appears to be the first time that the
validity of a state-decreed search or intrusion through the medium of mandatory
random drug testing among students and employees is, in this jurisdiction, made
18[14]
RA 9165, Sec. 2.
19 [15]
Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), 661.
20 [16]
Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169; citing Morfe v. Mutuc, No. L-20387, January 31, 1968, 22
SCRA 424, 444-445.
21 [17]
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the person or things to be seized.
46

the focal point. Thus, the issue tendered in these proceedings is veritably one of
first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence.


With respect to random drug testing among school children, we turn to the
teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of
Education of Independent School District No. 92 of Pottawatomie County, et al. v.
Earls, et al. (Board of Education),22[18] both fairly pertinent US Supreme Court-
decided cases involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address


the drug menace in their respective institutions following the discovery of
frequent drug use by school athletes. After consultation with the parents, they
required random urinalysis drug testing for the school’s athletes. James Acton, a
high school student, was denied participation in the football program after he
refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming
that the school’s drug testing policy violated, inter alia, the Fourth
Amendment23[19] of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in


Vernonia, considered the following: (1) schools stand in loco parentis over their
students; (2) school children, while not shedding their constitutional rights at the
school gate, have less privacy rights; (3) athletes have less privacy rights than
non-athletes since the former observe communal undress before and after sports
events; (4) by joining the sports activity, the athletes voluntarily subjected
themselves to a higher degree of school supervision and regulation; (5) requiring
urine samples does not invade a student’s privacy since a student need not undress
for this kind of drug testing; and (6) there is need for the drug testing because of
the dangerous effects of illegal drugs on the young. The US Supreme Court held
that the policy constituted reasonable search under the Fourth 24[20] and 14th
Amendments and declared the random drug-testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh,


Oklahoma required a drug test for high school students desiring to join extra-
curricular activities. Lindsay Earls, a member of the show choir, marching band,
and academic team declined to undergo a drug test and averred that the drug-
testing policy made to apply to non-athletes violated the Fourth and 14th
Amendments. As Earls argued, unlike athletes who routinely undergo physical
examinations and undress before their peers in locker rooms, non-athletes are
entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug


testing even among non-athletes on the basis of the school’s custodial
responsibility and authority. In so ruling, said court made no distinction between
a non-athlete and an athlete. It ratiocinated that schools and teachers act in place
of the parents with a similar interest and duty of safeguarding the health of the
students. And in holding that the school could implement its random drug-testing
policy, the Court hinted that such a test was a kind of search in which even a
reasonable parent might need to engage.

22 [18]
536 U.S. 822 (2002); cited in 2 Bernas, CONSTITUTIONAL RIGHTS AND SOCIAL DEMANDS 224-227 (2004).
23 [19]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
24 [20]
The Fourth Amendment is almost similar to Sec. 2, Art. III of the Constitution, except that the latter limited the determination of
probable cause to a judge after an examination under oath of the complainant and his witnesses. Hence, pronouncements of the US Federal
Supreme Court and State Appellate Court may be considered doctrinal in this jurisdiction, unless they are manifestly contrary to our
Constitution. See Herrera, HANDBOOK ON ARREST, SEARCH AND SEIZURE 8 (2003).
47

In sum, what can reasonably be deduced from the above two cases and
applied to this jurisdiction are: (1) schools and their administrators stand in loco
parentis with respect to their students; (2) minor students have contextually fewer
rights than an adult, and are subject to the custody and supervision of their
parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to
safeguard the health and well-being of their students and may adopt such
measures as may reasonably be necessary to discharge such duty; and (4) schools
have the right to impose conditions on applicants for admission that are fair, just,
and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so
holds that the provisions of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are constitutional. Indeed, it is within the
prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure,
the right to enroll is not absolute; it is subject to fair, reasonable, and equitable
requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in
the country that threatens the well-being of the people, 25[21] particularly the youth
and school children who usually end up as victims. Accordingly, and until a more
effective method is conceptualized and put in motion, a random drug testing of
students in secondary and tertiary schools is not only acceptable but may even be
necessary if the safety and interest of the student population, doubtless a
legitimate concern of the government, are to be promoted and protected. To
borrow from Vernonia, “[d]eterring drug use by our Nation’s schoolchildren is as
important as enhancing efficient enforcement of the Nation’s laws against the
importation of drugs”; the necessity for the State to act is magnified by the fact
that the effects of a drug-infested school are visited not just upon the users, but
upon the entire student body and faculty. 26[22] Needless to stress, the random
testing scheme provided under the law argues against the idea that the testing aims
to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory
but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees
of public and private offices is justifiable, albeit not exactly for the same reason.
The Court notes in this regard that petitioner SJS, other than saying that
“subjecting almost everybody to drug testing, without probable cause, is
unreasonable, an unwarranted intrusion of the individual right to privacy,” 27[23] has
failed to show how the mandatory, random, and suspicionless drug testing under
Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes
unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.28[24] Petitioner Laserna’s lament is just as simplistic, sweeping, and
gratuitous and does not merit serious consideration. Consider what he wrote
without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have


made various rulings on the constitutionality of mandatory drug tests
in the school and the workplaces. The US courts have been consistent

25 [21]
Tolentino v. Alconcel, No. L-63400, March 18, 1983, 121 SCRA 92, 95-96.
26 [22]
Rollo (G.R. No. 158633), p. 204, respondents’ Consolidated Memorandum.
27 [23]
Rollo (G.R. No. 157870), p. 10.
28 [24]
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.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the person or things to be seized.
48

in their rulings that the mandatory drug tests violate a citizen’s


constitutional right to privacy and right against unreasonable search
and seizure. They are quoted extensively hereinbelow. 29[25]

The essence of privacy is the right to be left alone. 30[26] In context, the right
to privacy means the right to be free from unwarranted exploitation of one’s
person or from intrusion into one’s private activities in such a way as to cause
humiliation to a person’s ordinary sensibilities. 31[27] And while there has been
general agreement as to the basic function of the guarantee against unwarranted
search, “translation of the abstract prohibition against ‘unreasonable searches and
seizures’ into workable broad guidelines for the decision of particular cases is a
difficult task,” to borrow from C. Camara v. Municipal Court.32[28] Authorities are
agreed though that the right to privacy yields to certain paramount rights of the
public and defers to the state’s exercise of police power. 33[29]

As the warrantless clause of Sec. 2, Art III of the Constitution is couched


and as has been held, “reasonableness” is the touchstone of the validity of a
government search or intrusion.34[30] And whether a search at issue hews to the
reasonableness standard is judged by the balancing of the government-mandated
intrusion on the individual’s privacy interest against the promotion of some
compelling state interest.35[31] In the criminal context, reasonableness requires
showing of probable cause to be personally determined by a judge. Given that the
drug-testing policy for employees––and students for that matter––under RA 9165
is in the nature of administrative search needing what was referred to in Vernonia
as “swift and informal disciplinary procedures,” the probable-cause standard is not
required or even practicable. Be that as it may, the review should focus on the
reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of


the privacy interest upon which the drug testing, which effects a search within the
meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement. The employees’
privacy interest in an office is to a large extent circumscribed by the company’s
work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace. Their privacy expectation in a
regulated office environment is, in fine, reduced; and a degree of impingement
upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized
by the challenged law. Reduced to a question form, is the scope of the search or
intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law
authorizing a search “narrowly drawn” or “narrowly focused”? 36[32]

The poser should be answered in the affirmative. For one, Sec. 36 of RA


9165 and its implementing rules and regulations (IRR), as couched, contain
provisions specifically directed towards preventing a situation that would unduly
embarrass the employees or place them under a humiliating experience. While
every officer and employee in a private establishment is under the law deemed
29 [25]
Rollo (G.R. No. 158633), p. 9.
30[26]
Ople, supra note 16, at 153; citing Cooley on Torts, Sec. 135, Vol. 1, 4th ed., [1932].
31 [27]
62 Am. Jur. 2d, Privacy, Sec. 1.
32 [28]
387 U.S. 523; cited in 2 Bernas, supra note 18, at 232.
33 [29]
62 Am. Jur. 2d, Privacy, Sec. 17.
34[30]
Vernonia & Board of Education, supra notes 15 & 18.
35 [31]
Skinner v. Railway Labor Executives Assn., 489 U.S. 602, 619 (1989); cited in Vernonia, supra.
36 [32]
Supra note 16, at 166 & 169.
49

forewarned that he or she may be a possible subject of a drug test, nobody is really
singled out in advance for drug testing. The goal is to discourage drug use by not
telling in advance anyone when and who is to be tested. And as may be observed,
Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by
providing that the employees concerned shall be subjected to “random drug test as
contained in the company’s work rules and regulations x x x for purposes of
reducing the risk in the work place.”

For another, the random drug testing shall be undertaken under conditions
calculated to protect as much as possible the employee’s privacy and dignity. As to
the mechanics of the test, the law specifies that the procedure shall employ two
testing methods, i.e., the screening test and the confirmatory test, doubtless to
ensure as much as possible the trustworthiness of the results. But the more
important consideration lies in the fact that the test shall be conducted by trained
professionals in access-controlled laboratories monitored by the Department of
Health (DOH) to safeguard against results tampering and to ensure an accurate
chain of custody.37[33] In addition, the IRR issued by the DOH provides that access
to the drug results shall be on the “need to know” basis; 38[34] that the “drug test
result and the records shall be [kept] confidential subject to the usual accepted
practices to protect the confidentiality of the test results.” 39[35] Notably, RA 9165
does not oblige the employer concerned to report to the prosecuting agencies any
information or evidence relating to the violation of the Comprehensive Dangerous
Drugs Act received as a result of the operation of the drug testing. All told,
therefore, the intrusion into the employees’ privacy, under RA 9165, is
accompanied by proper safeguards, particularly against embarrassing leakages of
test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in


the country and thus protect the well-being of the citizens, especially the youth,
from the deleterious effects of dangerous drugs. The law intends to achieve this
through the medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory random drug test. 40[36]
To the Court, the need for drug testing to at least minimize illegal drug use is
substantial enough to override the individual’s privacy interest under the premises.
The Court can consider that the illegal drug menace cuts across gender, age group,
and social- economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would be an
investor’s dream were it not for the illegal and immoral components of any of
such activities. The drug problem has hardly abated since the martial law public
execution of a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern-day scourge. Drug enforcement agencies
perceive a mandatory random drug test to be an effective way of preventing and
deterring drug use among employees in private offices, the threat of detection by
random testing being higher than other modes. The Court holds that the chosen
method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of
privacy on the part of the employees, the compelling state concern likely to be met
by the search, and the well-defined limits set forth in the law to properly guide
authorities in the conduct of the random testing, we hold that the challenged drug
37 [33]
Under Sec. 7 [3] of the DOH IRR Governing Licensing and Accreditation of Drug Laboratories, a laboratory is required to use
documented chain of custody procedures to maintain control and custody of specimens.
38 [34]
DOH IRR Governing Licensing and Accreditation of Drug Laboratories, Sec. 7 [10.3] provides that the original copy of the test
results form shall be given to the client/donor, copy furnished the DOH and the requesting agency.
39 [35]
Id., Sec. 7 [10.4].
40 [36]
Secs. 47 and 48 of RA 9165 charge the Department of Labor and Employment with the duty to develop and promote a national
drug prevention program and the necessary guidelines in the work place, which shall include a mandatory drafting and adoption of policies to
achieve a drug-free workplace.
50

test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and


employees also labor under reasonable supervision and restrictions imposed by the
Civil Service law and other laws on public officers, all enacted to promote a high
standard of ethics in the public service. 41[37] And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it should pass the test
for civil servants, who, by constitutional command, are required to be accountable
at all times to the people and to serve them with utmost responsibility and
efficiency.42[38]

Petitioner SJS’ next posture that Sec. 36 of RA 9165 is objectionable on the


ground of undue delegation of power hardly commends itself for concurrence.
Contrary to its position, the provision in question is not so extensively drawn as to
give unbridled options to schools and employers to determine the manner of drug
testing. Sec. 36 expressly provides how drug testing for students of secondary and
tertiary schools and officers/employees of public/private offices should be
conducted. It enumerates the persons who shall undergo drug testing. In the case
of students, the testing shall be in accordance with the school rules as contained in
the student handbook and with notice to parents. On the part of
officers/employees, the testing shall take into account the company’s work rules.
In either case, the random procedure shall be observed, meaning that the persons
to be subjected to drug test shall be picked by chance or in an unplanned way. And
in all cases, safeguards against misusing and compromising the confidentiality of
the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in


consultation with the DOH, Department of the Interior and Local Government,
Department of Education, and Department of Labor and Employment, among
other agencies, the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme shall always be
subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and
employers have unchecked discretion to determine how often, under what
conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the


constitutional landscape.43[39] In the face of the increasing complexity of the task
of the government and the increasing inability of the legislature to cope directly
with the many problems demanding its attention, resort to delegation of power, or
entrusting to administrative agencies the power of subordinate legislation, has
become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],


[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court
finds no valid justification for mandatory drug testing for persons accused of
crimes. In the case of students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students emanates primarily from the
waiver by the students of their right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons to the parental authority of
school authorities. In the case of private and public employees, the constitutional
41[37]
CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICERS AND EMPLOYEES, Sec. 2.
42 [38]
CONSTITUTION, Art. XI, Sec. 1.
43 [39]
Tatad, supra note 6, at 351.
51

soundness of the mandatory, random, and suspicionless drug testing proceeds


from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before
the public prosecutor’s office with criminal offenses punishable with six (6) years
and one (1) day imprisonment. The operative concepts in the mandatory drug
testing are “randomness” and “suspicionless.” In the case of persons charged with
a crime before the prosecutor’s office, a mandatory drug testing can never be
random or suspicionless. The ideas of randomness and being suspicionless are
antithetical to their being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against
their will. The persons thus charged, by the bare fact of being haled before the
prosecutor’s office and peaceably submitting themselves to drug testing, if that be
the case, do not necessarily consent to the procedure, let alone waive their right to
privacy.44[40] To impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for criminal prosecution, contrary
to the stated objectives of RA 9165. Drug testing in this case would violate a
persons’ right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No.


161658 and declares Sec. 36(g) of RA 9165 and COMELEC Resolution
No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the
petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d)
of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f)
UNCONSTITUTIONAL. All concerned agencies are, accordingly,
permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165.
No costs.

Sections 5. [1] The House of representatives shall be


composed of not more than 250 members, unless
otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those
who, as provided by law, shall be elected through a
party-list system of registered national, regional and
sectoral parties or organizations.

[2] The party-list representatives shall constitute


20% of the total number of representatives including
those under the party-list. For three (3) consecutive terms
after the ratification of this Constitution, ½ of the seats
allocated to party-list representatives shall be filled, as
provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities,
women youth, and such other sectors, as may be provided
by law, except the religious sector.

44 [40]
Leona Pasion Viuda de Garcia v. Locsin, 65 Phil. 689, 695 (1938); citing Cooley, CONST. LIM. 630 (8th ed.).
52

[3] Each legislative district shall comprise, as far as


practicable, contiguous, compact and adjacent territory.
Each city with a population of at least one hundred fifty
thousand, or each province, shall have at least one
representative.
[4] Within 3 years following the return of every
census, the Congress shall make a reapportionment of
legislative districts based on standards provided in this
section

Re-apportionment of a single legislative district


to make it two (2) like Cagayan de Oro City.
Must there be a plebiscite first before a law
adding another legislative district to a city or
province as a result of increase in its income
and population is considered valid and
enforceable? Is Section 10, Art. X of the
Constitution applicable in the creation of
additional legislative districts?

ROGELIO BAGABUYO VS. COMELEC, G.R. No.


176970, December 8, 2008

Before us is the petition for certiorari, prohibition, and mandamus,45[1]


with a prayer for the issuance of a temporary restraining order and a writ of
preliminary injunction, filed by Rogelio Bagabuyo (petitioner) to prevent
the Commission on Elections (COMELEC) from implementing Resolution
No. 7837 on the ground that Republic Act No. 9371 46[2] – the law that
Resolution No. 7837 implements – is unconstitutional.

BACKGROUND FACTS

On October 10, 2006, Cagayan de Oro’s then Congressman


Constantino G. Jaraula filed and sponsored House Bill No. 5859: “An Act
Providing for the Apportionment of the Lone Legislative District of the City
of Cagayan De Oro.”47[3] This law eventually became Republic Act (R.A.)
No. 9371.48[4] It increased Cagayan de Oro’s legislative district from one to
two. For the election of May 2007, Cagayan de Oro’s voters would be
classified as belonging to either the first or the second district, depending on
their place of residence. The constituents of each district would elect their
own representative to Congress as well as eight members of the
Sangguniang Panglungsod.

Section 1 of R.A. No. 9371 apportioned the City’s barangays as


follows:
Legislative Districts – The lone legislative district of the
City of Cagayan De Oro is hereby apportioned to commence in
the next national elections after the effectivity of this Act.
Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen,
Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat,
Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao,
45 [1]
Under Rule 65 of the Rules of Court.
46 [2]
“An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro.”
47 [3]
Rollo, p. 214.
48 [4]
Id., p. 25.
53

Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya,


Dansulihon, Tignapoloan and Bisigan shall comprise the first
district while barangays Macabalan, Puntod, Consolacion,
Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa,
Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo, and
Balubal and all urban barangays from Barangay 1 to Barangay
40 shall comprise the second district.49[5]

On March 13, 2007, the COMELEC en Banc promulgated Resolution


No. 783750[6] implementing R.A. No. 9371.

Petitioner Rogelio Bagabuyo filed the present petition against the


COMELEC on March 27, 2007.51[7] On 10 April 2008, the petitioner
amended the petition to include the following as respondents: Executive
Secretary Eduardo Ermita; the Secretary of the Department of Budget and
Management; the Chairman of the Commission on Audit; the Mayor and the
members of the Sangguniang Panglungsod of Cagayan de Oro City; and its
Board of Canvassers.52[8]

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837
on constitutional grounds, the petitioner argued that the COMELEC cannot
implement R.A. No. 9371 without providing for the rules, regulations and
guidelines for the conduct of a plebiscite which is indispensable for the
division or conversion of a local government unit. He prayed for the
issuance of an order directing the respondents to cease and desist from
implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to
revert instead to COMELEC Resolution No. 7801 which provided for a
single legislative district for Cagayan de Oro.

Since the Court did not grant the petitioner’s prayer for a temporary
restraining order or writ of preliminary injunction, the May 14 National and
Local Elections proceeded according to R.A. No. 9371 and Resolution No.
7837.

The respondent’s Comment on the petition, filed through the Office of the
Solicitor General, argued that: 1) the petitioner did not respect the hierarchy
of courts, as the Regional Trial Court (RTC) is vested with concurrent
jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No.
9371 merely increased the representation of Cagayan de Oro City in the
House of Representatives and Sangguniang Panglungsod pursuant to
Section 5, Article VI of the 1987 Constitution; 3) the criteria established
under Section 10, Article X of the 1987 Constitution only apply when there
is a creation, division, merger, abolition or substantial alteration of
boundaries of a province, city, municipality, or barangay; in this case, no
such creation, division, merger, abolition or alteration of boundaries of a
local government unit took place; and 4) R.A. No. 9371 did not bring about
any change in Cagayan de Oro’s territory, population and income
classification; hence, no plebiscite is required.

The petitioner argued in his reply that: 1) pursuant to the Court’s ruling in
Del Mar v. PAGCOR,53[9] the Court may take cognizance of this petition if
compelling reasons, or the nature and importance of the issues raised,
49 [5]
Id., p. 25.
50 [6]
Id., pp. 23-24.
51 [7]
Id., pp. 3-22.
52 [8]
Id., pp. 60-93
53 [9]
G.R. No. 138298, November 29, 2000, 346 SCRA 485.
54

warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City’s


reapportionment under R.A. No. 9371 falls within the meaning of creation,
division, merger, abolition or substantial alteration of boundaries of cities
under Section 10, Article X of the Constitution; 3) the creation, division,
merger, abolition or substantial alteration of boundaries of local government
units involve a common denominator – the material change in the political
and economic rights of the local government units directly affected, as well
as of the people therein; 4) a voter’s sovereign power to decide on who
should be elected as the entire city’s Congressman was arbitrarily reduced
by at least one half because the questioned law and resolution only allowed
him to vote and be voted for in the district designated by the COMELEC; 5)
a voter was also arbitrarily denied his right to elect the Congressman and the
members of the city council for the other legislative district, and 6)
government funds were illegally disbursed without prior approval by the
sovereign electorate of Cagayan De Oro City. 54[10]

THE ISSUES

The core issues, based on the petition and the parties’ memoranda, can be
limited to the following contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the
instant petition be dismissed on this ground?
2) Does R.A. No. 9371 merely provide for the legislative
reapportionment of Cagayan de Oro City, or does it involve the
division and conversion of a local government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the
petition totally without merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for


certiorari, prohibition, mandamus, quo warranto, and habeas corpus.55[11] It
was pursuant to this original jurisdiction that the petitioner filed the present
petition.

While this jurisdiction is shared with the Court of Appeals 56[12] and the
RTCs,57[13] a direct invocation of the Supreme Court’s jurisdiction is allowed
only when there are special and important reasons therefor, clearly and
especially set out in the petition. Reasons of practicality, dictated by an
increasingly overcrowded docket and the need to prioritize in favor of
matters within our exclusive jurisdiction, justify the existence of this rule
otherwise known as the “principle of hierarchy of courts.” More generally
stated, the principle requires that recourse must first be made to the lower-
ranked court exercising concurrent jurisdiction with a higher court. 58[14]
54 [10]
Rollo, pp. 123-148.

55 [11]
CONSTITUTION, Article VIII, Section 5(1).
56 [12]
Sec. 9 (1), B.P. Blg. 129.
57 [13]
Sec. 21 (1), B.P. Blg. 129.
58 [14]
See: People v. Cuaresma, G.R. No. 67787, April 18, 1989, 172 SCRA 415.
55

Among the cases we have considered sufficiently special and


important to be exceptions to the rule, are petitions for certiorari,
prohibition, mandamus and quo warranto against our nation’s lawmakers
when the validity of their enactments is assailed. 59[15] The present petition is
of this nature; its subject matter and the nature of the issues raised – among
them, whether legislative reapportionment involves a division of Cagayan de
Oro City as a local government unit – are reasons enough for considering it
an exception to the principle of hierarchy of courts. Additionally, the
petition assails as well a resolution of the COMELEC en banc issued to
implement the legislative apportionment that R.A. No. 9371 decrees. As an
action against a COMELEC en banc resolution, the case falls under Rule 64
of the Rules of Court that in turn requires a review by this Court via a Rule
65 petition for certiorari.60[16] For these reasons, we do not see the principle
of hierarchy of courts to be a stumbling block in our consideration of the
present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City
of Cagayan de Oro as a local government unit, and does not merely provide
for the City’s legislative apportionment. This argument essentially proceeds
from a misunderstanding of the constitutional concepts of apportionment of
legislative districts and division of local government units.

Legislative apportionment is defined by Black’s Law Dictionary as


the determination of the number of representatives which a State, county or
other subdivision may send to a legislative body. 61[17] It is the allocation of
seats in a legislative body in proportion to the population; the drawing of
voting district lines so as to equalize population and voting power among
the districts.62[18] Reapportionment, on the other hand, is the realignment
or change in legislative districts brought about by changes in population
and mandated by the constitutional requirement of equality of
representation.63[19]

Article VI (entitled Legislative Department) of the 1987 Constitution


lays down the rules on legislative apportionment under its Section 5 which
provides:
Sec. 5(1). (1) The House of Representatives shall be
composed of not more than two hundred fifty members unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national,
regional and sectoral parties or organizations.

xxx

59 [15]
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
60 [16]
See: Bautista v. COMELEC, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299.
61 [17]
Black’s Law Dictionary, 5th Edition, p. 91.
62 [18]
Clapp, James E., Dictionary of Law (2000), p. 33.
63 [19] Black’s Law Dictionary,
supra note 17, p. 1137.
56

(3) Each legislative district shall comprise, as far as


practicable, continuous, compact, and adjacent territory. Each
city with a population of at least two hundred fifty thousand, or
each province, shall have at least one representative.

(4) Within three years following the return of every


census, the Congress shall make a reapportionment of legislative
districts based on the standards provided in this section.

Separately from the legislative districts that legal apportionment or


reapportionment speaks of, are the local government units (historically and
generically referred to as “municipal corporations”) that the Constitution
itself classified into provinces, cities, municipalities and barangays.64[20] In
its strict and proper sense, a municipality has been defined as “a body politic
and corporate constituted by the incorporation of the inhabitants of a city or
town for the purpose of local government thereof.” 65[21] The creation,
division, merger, abolition or alteration of boundary of local government
units, i.e., of provinces, cities, municipalities, and barangays, are covered by
the Article on Local Government (Article X). Section 10 of this Article
provides:

No province, city, municipality, or barangay may be created,


divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code and subject to approval by a majority of the
votes cast in a plebiscite in the political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the


Constitution, the authority to act has been vested in the Legislature. The
Legislature undertakes the apportionment and reapportionment of legislative
districts,66[22] and likewise acts on local government units by setting the
standards for their creation, division, merger, abolition and alteration of
boundaries and by actually creating, dividing, merging, abolishing local
government units and altering their boundaries through legislation. Other
than this, not much commonality exists between the two provisions since
they are inherently different although they interface and relate with one
another.

The concern that leaps from the text of Article VI, Section 5 is
political representation and the means to make a legislative district
sufficiently represented so that the people can be effectively heard. As
above stated, the aim of legislative apportionment is “to equalize population
and voting power among districts.”67[23] Hence, emphasis is given to the
number of people represented; the uniform and progressive ratio to be
observed among the representative districts; and accessibility and
commonality of interests in terms of each district being, as far as practicable,
continuous, compact and adjacent territory. In terms of the people
represented, every city with at least 250,000 people and every province
(irrespective of population) is entitled to one representative. In this sense,
legislative districts, on the one hand, and provinces and cities, on the other,
relate and interface with each other. To ensure continued adherence to the

64 [20]
CONSTITUTION, Art. X, Sec. 1.
65 [21]
Martin, Public Corporations, Revised 1983 Edition, p. 5.
66 [22]
Article VI, Section 5; Montejo v. COMELEC, 312 Phil. 492 (1995).
67 [23]
Supra note 18.
57

required standards of apportionment, Section 5(4) specifically mandates


reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI,


Section 5, Article X, Section 10 expressly speaks of how local government
units may be “created, divided, merged, abolished, or its boundary
substantially altered.” Its concern is the commencement, the termination,
and the modification of local government units’ corporate existence and
territorial coverage; and it speaks of two specific standards that must be
observed in implementing this concern, namely, the criteria established in
the local government code and the approval by a majority of the votes cast
in a plebiscite in the political units directly affected. Under the Local
Government Code (R.A. No. 7160) passed in 1991, the criteria of income,
population and land area are specified as verifiable indicators of viability
and capacity to provide services.68[24] The division or merger of existing
units must comply with the same requirements (since a new local
government unit will come into being), provided that a division shall not
reduce the income, population, or land area of the unit affected to less than
the minimum requirement prescribed in the Code. 69[25]

A pronounced distinction between Article VI, Section 5 and, Article X,


Section 10 is on the requirement of a plebiscite. The Constitution and the
Local Government Code expressly require a plebiscite to carry out any
creation, division, merger, abolition or alteration of boundary of a local
government unit.70[26] In contrast, no plebiscite requirement exists under the
apportionment or reapportionment provision. In Tobias v. Abalos,71[27] a
case that arose from the division of the congressional district formerly
covering San Juan and Mandaluyong into separate districts, we confirmed
this distinction and the fact that no plebiscite is needed in a legislative
reapportionment. The plebiscite issue came up because one was ordered and
held for Mandaluyong in the course of its conversion into a highly urbanized
city, while none was held for San Juan. In explaining why this happened,
the Court ruled that no plebiscite was necessary for San Juan because the
objective of the plebiscite was the conversion of Mandaluyong into a highly
urbanized city as required by Article X, Section 10 the Local Government
Code; the creation of a new legislative district only followed as a
consequence. In other words, the apportionment alone and by itself did not
call for a plebiscite, so that none was needed for San Juan where only a
reapportionment took place.

The need for a plebiscite under Article X, Section 10 and the lack of
requirement for one under Article VI, Section 5 can best be appreciated by a
consideration of the historical roots of these two provisions, the nature of the
concepts they embody as heretofore discussed, and their areas of
application.

A Bit of History.

68 [24]
Section 7, Local Government Code.
69 [25]
CONSTITUTION, Art. X, Sec. 10.
70 [26]
SEC. 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of
boundaries of local government units shall take effect unless approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be
conducted by the Commission on Elections (Comelec) within one hundred twenty (120) days from the date of
effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.
71 [27]
G.R. No. 114783, December 8, 1994, 239 SCRA 106.
58

In Macias v. COMELEC,72[28] we first jurisprudentially acknowledged


the American roots of our apportionment provision, noting its roots from the
fourteenth Amendment73[29] of the U.S. Constitution and from the
constitutions of some American states. The Philippine Organic Act of 1902
created the Philippine Assembly, 74[30] the body that acted as the lower house
of the bicameral legislature under the Americans, with the Philippine
Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the
conformity of the U.S. Senate, the members of the Philippine Assembly
were elected by representative districts previously delineated under the
Philippine Organic Act of 1902 pursuant to the mandate to apportion the
seats of the Philippine Assembly among the provinces as nearly as
practicable according to population. Thus, legislative apportionment first
started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained


the apportionment provision, dividing the country into 12 senate districts
and 90 representative districts electing one delegate each to the House of
Representatives. Section 16 of the Act specifically vested the Philippine
Legislature with the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the


concept of legislative apportionment together with “district” as the basic unit
of apportionment; the concern was “equality of representation . . . as an
essential feature of republican institutions” as expressed in the leading case
of Macias v. COMELEC.75[31] The case ruled that inequality of
representation is a justiciable, not a political issue, which ruling was
reiterated in Montejo v. COMELEC.76[32] Notably, no issue regarding the
holding of a plebiscite ever came up in these cases and the others that
followed, as no plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of


equal representation “in accordance with the number of their respective
inhabitants and on the basis of a uniform and progressive ratio” with each
district being, as far as practicable, contiguous, compact and adjacent
territory. This formulation was essentially carried over to the 1987
Constitution, distinguished only from the previous one by the presence of
party-list representatives. In neither Constitution was a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition


of local government units was not constitutionally enshrined until the 1973
Constitution. However, as early as 1959, R.A. No. 2264 77[33] required, in the
creation of barrios by Provincial Boards, that the creation and definition of
boundaries be “upon petition of a majority of the voters in the areas
affected.” In 1961, the Charter of the City of Caloocan (R.A. No. 3278)
carried this further by requiring that the “Act shall take effect after a
majority of voters of the Municipality of Caloocan vote in favor of the
conversion of their municipality into a city in a plebiscite.” This was
followed up to 1972 by other legislative enactments requiring a plebiscite as

72 [28]
G.R. No. L-18684, September 14, 1961, 113 Phil. 1 (1961).
73 [29]
The Fourteenth Amendment of the U.S. Constitution provides the basis for the requirement of an equitable
apportionment scheme. See generally, Colegrove v. Green, 328 U.S. 549, cited in Macias v. COMELEC, supra note 28.
74 [30]
People v. Santiago, 43 Phil 120 (1922).
75 [31]
Supra note 28.
76 [32]
G.R. No. 118702, March 16, 1995.
77 [33]
“An Act Amending the Laws Governing Local Governments by Increasing their Autonomy and
Reorganizing Provincial Governments.”
59

a condition for the creation and conversion of local government units as well
as the transfer of sitios from one legislative unit to another.78[34] In 1973, the
plebiscite requirement was accorded constitutional status.

Under these separate historical tracks, it can be seen that the holding of
a plebiscite was never a requirement in legislative apportionment or
reapportionment. After it became constitutionally entrenched, a plebiscite
was also always identified with the creation, division, merger, abolition and
alteration of boundaries of local government units, never with the concept of
legislative apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a


sense, be called a political unit because it is the basis for the election of a
member of the House of Representatives and members of the local
legislative body. It is not, however, a political subdivision through which
functions of government are carried out. It can more appropriately be
described as a representative unit that may or may not encompass the whole
of a city or a province, but unlike the latter, it is not a corporate unit. Not
being a corporate unit, a district does not act for and in behalf of the people
comprising the district; it merely delineates the areas occupied by the people
who will choose a representative in their national affairs. Unlike a province,
which has a governor; a city or a municipality, which has a mayor; and a
barangay, which has a punong barangay, a district does not have its own
chief executive. The role of the congressman that it elects is to ensure that
the voice of the people of the district is heard in Congress, not to oversee the
affairs of the legislative district. Not being a corporate unit also signifies that
it has no legal personality that must be created or dissolved and has no
capacity to act. Hence, there is no need for any plebiscite in the creation,
dissolution or any other similar action on a legislative district.

The local government units, on the other hand, are political and
corporate units. They are the territorial and political subdivisions of the
state.79[35] They possess legal personality on the authority of the Constitution
and by action of the Legislature. The Constitution defines them as entities
that Congress can, by law, create, divide, abolish, merge; or whose
boundaries can be altered based on standards again established by both the
Constitution and the Legislature.80[36] A local government unit’s corporate
existence begins upon the election and qualification of its chief executive
and a majority of the members of its Sanggunian.81[37]

As a political subdivision, a local government unit is an


“instrumentality of the state in carrying out the functions of
government.”82[38] As a corporate entity with a distinct and separate juridical
personality from the State, it exercises special functions for the sole benefit
of its constituents. It acts as “an agency of the community in the
78 [34]
A plebiscite was a conditio sine qua non in the creation of municipal corporations including, but not limited to, the
following: 1) the City of Angeles, R.A. 3700; 2) the Municipality of Pio Duran in the Province of Albay, R.A. 3817; 3)
the Provinces of Northern Samar, Eastern Samar and Western Samar, R.A. 4221; 4) the Provinces of Agusan del Norte
and Agusan del Sur, R.A. 4979. The prior approval of a majority of the qualified voters of certain sitios of the
Municipality of Anilao was also required before the transfer of the same sitios to the Municipality of Banate under R.A.
4614 took effect.
79 [35]
Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc., G.R. No. 135962, March 27, 2000, 328 SCRA 836.
80 [36]
CONSTITUTION, Article X, Secs. 3 and 10; Aquilino Pimentel, Jr., The Local Government Code of 1991: The Key to National Development, p.
5.
81 [37]
Sec. 14, Local Government Code.
82 [38]
Lidasan v. Commission on Elections, G.R. No. L-28089 October 25, 1967, 21 SCRA 496.
60

administration of local affairs”83[39] and the mediums through which the


people act in their corporate capacity on local concerns. 84[40] In light of these
roles, the Constitution saw it fit to expressly secure the consent of the people
affected by the creation, division, merger, abolition or alteration of
boundaries of local government units through a plebiscite.

These considerations clearly show the distinctions between a


legislative apportionment or reapportionment and the division of a local
government unit. Historically and by its intrinsic nature, a legislative
apportionment does not mean, and does not even imply, a division of a local
government unit where the apportionment takes place. Thus, the plebiscite
requirement that applies to the division of a province, city, municipality or
barangay under the Local Government Code should not apply to and be a
requisite for the validity of a legislative apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment
legislation passed in accordance with the authority granted to Congress
under Article VI, Section 5(4) of the Constitution. Its core provision –
Section 1 – provides:

SECTION 1. Legislative Districts. — The lone


legislative district of the City of Cagayan de Oro is hereby
apportioned to commence in the next national elections after the
effectivity of this Act. Henceforth, barangays Bonbon, Bayabas,
Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San
Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan,
Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall
comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig, Indahag,
Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto,
Bugo and Balubal and all urban barangays from Barangay 1 to
Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a


political and corporate entity takes place or is mandated. Cagayan de Oro
City politically remains a single unit and its administration is not divided
along territorial lines. Its territory remains completely whole and intact;
there is only the addition of another legislative district and the delineation of
the city into two districts for purposes of representation in the House of
Representatives. Thus, Article X, Section 10 of the Constitution does not
come into play and no plebiscite is necessary to validly apportion Cagayan
de Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the


creation of another congressional district in the city by providing, as
reflected in COMELEC Resolution No. 7837, for additional Sangguniang
Panglunsod seats to be voted for along the lines of the congressional
apportionment made. The effect on the Sangguniang Panglunsod, however,

83 [39]
Ibid.
84 [40]
Section 15 of the Local Government Code provides: Political and Corporate Nature of Local Government Units. - Every local
government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity
with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the
inhabitants of its territory.
61

is not directly traceable to R.A. No. 9371 but to another law – R.A. No.
663685[41] – whose Section 3 provides:

SECTION 3. Other Cities. — The provision of any law to the


contrary notwithstanding the City of Cebu, City of Davao, and
any other city with more than one representative district shall
have eight (8) councilors for each district who shall be residents
thereof to be elected by the qualified voters therein, provided
that the cities of Cagayan de Oro, Zamboanga, Bacolod, Iloilo
and other cities comprising a representative district shall have
twelve (12) councilors each and all other cities shall have ten
(10) councilors each to be elected at large by the qualified voters
of the said cities: Provided, That in no case shall the present
number of councilors according to their charters be reduced.

However, neither does this law have the effect of dividing the City of
Cagayan de Oro into two political and corporate units and territories. Rather
than divide the city either territorially or as a corporate entity, the effect is
merely to enhance voter representation by giving each city voter more and
greater say, both in Congress and in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro


had only one congressman and 12 city council members citywide for its
population of approximately 500,000.86[42] By having two legislative
districts, each of them with one congressman, Cagayan de Oro now
effectively has two congressmen, each one representing 250,000 of the city’s
population. In terms of services for city residents, this easily means better
access to their congressman since each one now services only 250,000
constituents as against the 500,000 he used to represent. The same goes true
for the Sangguniang Panglungsod with its ranks increased from 12 to 16
since each legislative district now has 8 councilors. In representation terms,
the fewer constituents represented translate to a greater voice for each
individual city resident in Congress and in the Sanggunian; each
congressman and each councilor represents both a smaller area and fewer
constituents whose fewer numbers are now concentrated in each
representative. The City, for its part, now has twice the number of
congressmen speaking for it and voting in the halls of Congress. Since the
total number of congressmen in the country has not increased to the point of
doubling its numbers, the presence of two congressman (instead of one)
from the same city cannot but be a quantitative and proportional
improvement in the representation of Cagayan de Oro City in Congress.

Equality of representation.

The petitioner argues that the distribution of the legislative districts is


unequal. District 1 has only 93,719 registered voters while District 2 has
127,071. District 1 is composed mostly of rural barangays while District 2
is composed mostly of urban barangays.87[43] Thus, R.A. No. 9371 violates
the principle of equality of representation.

A clarification must be made. The law clearly provides that the basis for
districting shall be the number of the inhabitants of a city or a province, not
85 [41]
Enacted into law on November 6, 1987.
86 [42]
As provided by COMELEC Res. No. 7801 that COMELEC Res. No. 7837 superseded.

87 [43]
Rollo, p. 71.
62

the number of registered voters therein. We settled this very same question
in Herrera v. COMELEC88[44] when we interpreted a provision in R.A. No.
7166 and COMELEC Resolution No. 2313 that applied to the Province of
Guimaras. We categorically ruled that the basis for districting is the number
of inhabitants of the Province of Guimaras by municipality based on the
official 1995 Census of Population as certified to by Tomas P. Africa,
Administrator of the National Statistics Office.

The petitioner, unfortunately, did not provide information about the actual
population of Cagayan de Oro City. However, we take judicial notice of the
August 2007 census of the National Statistics Office which shows that
barangays comprising Cagayan de Oro’s first district have a total population
of 254,644, while the second district has 299,322 residents. Undeniably,
these figures show a disparity in the population sizes of the districts. 89[45] The
Constitution, however, does not require mathematical exactitude or rigid
equality as a standard in gauging equality of representation. 90[46] In fact, for
cities, all it asks is that “each city with a population of at least two hundred
fifty thousand shall have one representative,” while ensuring representation
for every province regardless of the size of its population. To ensure quality
representation through commonality of interests and ease of access by the
representative to the constituents, all that the Constitution requires is that
every legislative district should comprise, as far as practicable, contiguous,
compact, and adjacent territory. Thus, the Constitution leaves the local
government units as they are found and does not require their division,
merger or transfer to satisfy the numerical standard it imposes. Its
requirements are satisfied despite some numerical disparity if the units are
contiguous, compact and adjacent as far as practicable.

The petitioner’s contention that there is a resulting inequality in the


division of Cagayan de Oro City into two districts because the barangays in
the first district are mostly rural barangays while the second district is
mostly urban, is largely unsubstantiated. But even if backed up by proper
proof, we cannot question the division on the basis of the difference in the
barangays’ levels of development or developmental focus as these are not
part of the constitutional standards for legislative apportionment or
reapportionment. What the components of the two districts of Cagayan de
Oro would be is a matter for the lawmakers to determine as a matter of
policy. In the absence of any grave abuse of discretion or violation of the
established legal parameters, this Court cannot intrude into the wisdom of
these policies.91[47]
Creation of legislative district of Malolos City,
Bulacan; not valid if the 250,000 population is
not met

VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO,


JULIO G. MORADA, and MINERVA
88 [44]
G.R. No. 131499, November 17, 1999, 318 SCRA 337.
89 [45]
Total Population by Province, City, Municipality and Barangay: as of August 1, 2007
<http://www.census.gov.ph/data/sectordata/2007/region%2010.pdf>, last accessed November 5, 2008.
90 [46]
Harlan, dissenting opinion in Baker v. Carr, 369 U. S. 186 citing Allied Stores of Ohio v. Bowers, 358 U.S. 522 and
McGowan v. Maryland, 366 U.S. 420, in which the Supreme Court ruled that the Equal Protection Clause does not
demand of legislation “finicky or exact conformity to abstract correlation xxx. The Constitution is satisfied if a
legislature responds to the practical living facts with which it deals. Through what precise points in a field of many
competing pressures a legislature might most suitably have drawn its lines is not a question for judicial re-examination.
It is enough to satisfy the Constitution that in drawing them the principle of reason has not been disregarded. And what
degree of uniformity reason demands of a statute is, of course, a function of the complexity of the needs which the
statute seeks to accommodate.”
91 [47]
Tobias v. Abalos, G.R. No. L-114783, December 8, 1994, 239 SCRA 106.
63

ALDABA MORADA VS. COMELEC, G.R No. 188078,


January 25, 2010

CARPIO, J.:

This is an original action for Prohibition to declare


unconstitutional Republic Act No. 9591 (RA 9591), creating a
legislative district for the city of Malolos, Bulacan, for violating the
minimum population requirement for the creation of a legislative
district in a city.

Before 1 May 2009, the province of Bulacan was represented


in Congress through four legislative districts. The First Legislative
District comprised of the city of Malolos and the municipalities of
Hagonoy, Calumpit, Pulilan, Bulacan, and Paombong. On 1 May
2009, RA 9591 lapsed into law, amending Malolos’ City Charter, by
creating a separate legislative district for the city. At the time the
legislative bills for RA 9591 were filed in Congress in 2007,
namely, House Bill No. 3162 (later converted to House Bill No.
3693) and Senate Bill No. 1986, the population of Malolos City was
223,069. The population of Malolos City on 1 May 2009 is a
contested fact but there is no dispute that House Bill No. 3693
relied on an undated certification issued by a Regional Director of
the National Statistics Office (NSO) that “the projected population
of the Municipality of Malolos will be 254,030 by the year 2010
using the population growth rate of 3.78 between 1995 to 2000.

Petitioners, taxpayers, registered voters and residents of


Malolos City, filed this petition contending that RA 9591 is
unconstitutional for failing to meet the minimum population
threshold of 250,000 for a city to merit representation in Congress
as provided under Section 5(3), Article VI of the 1987 Constitution
and Section 3 of the Ordinance appended to the 1987 Constitution.

In its Comment to the petition, the Office of the Solicitor


General (OSG) contended that Congress’ use of projected
population is non-justiciable as it involves a determination on the
“wisdom of the standard adopted by the legislature to determine
compliance with [a constitutional requirement”.

HELD:

We grant the petition and declare RA 9591 unconstitutional


for being violative of Section 5(3), Article VI of the 1987
Constitution and Section 3 of the Ordinance appended to the 1987
Constitution

The 1987 Constitution requires that for a city to have a


legislative district, the city must have “a population of at least two
hundred fifty thousand.”92[5] The only issue here is whether the
City of Malolos has a population of at least 250,000, whether actual
or projected, for the purpose of creating a legislative district for the
City of Malolos in time for the 10 May 2010 elections. If not, then
RA 9591 creating a legislative district in the City of Malolos is
unconstitutional.
92 [5]
Section 5(3), Article VI of the 1987 Constitution provides: “Each legislative district shall comprise, as far as
practicable, contiguous, compact and adjacent territory. Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative.” (Emphasis supplied)

Moreover, Section 3 of the Ordinance appended to the 1987 Constitution provides: “Any province that may be
created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled
in the immediately following election to at least one Member or such number of members as it may be entitled to on the
basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. xxx.” (Emphasis supplied)
64

House Bill No. 3693 cites the undated Certification of


Regional Director Alberto N. Miranda of Region III of the
National Statistics Office (NSO) as authority that the population of
the City of Malolos “will be 254,030 by the year 2010.” The
Certification states that the population of “Malolos, Bulacan as of
May 1, 2000 is 175,291.” The Certification further states that it was
“issued upon the request of Mayor Danilo A. Domingo of the City
of Malolos in connection with the proposed creation of Malolos
City as a lone congressional district of the Province of Bulacan .

The Certification of Regional Director Miranda, which is


based on demographic projections, is without legal effect because
Regional Director Miranda has no basis and no authority to issue
the Certification. The Certification is also void on its face because
based on its own growth rate assumption, the population of Malolos
will be less than 250,000 in the year 2010. In addition, intercensal
demographic projections cannot be made for the entire year. In
any event, a city whose population has increased to 250,000 is
entitled to have a legislative district only in the “immediately
following election” after the attainment of the 250,000 population.

First, certifications on demographic projections can be


issued only if such projections are declared official by the
National Statistics Coordination Board (NSCB). Second,
certifications based on demographic projections can be issued only
by the NSO Administrator or his designated certifying officer.
Third, intercensal population projections must be as of the middle
of every year.

Section 6 of Executive Order No. 135 dated 6 November


1993 issued by President Fidel V. Ramos provides:

SECTION 6. Guidelines on the Issuance of Certification of


Population sizes Pursuant to Section 7, 386, 442, 450, 452, and 461
of the New Local Government Code.

(a) The National Statistics Office shall issue certification on data


that it has collected and processed as well as on statistics that it has
estimated.

(b) For census years, certification on population size will be


based on actual population census counts; while for the intercensal
years, the certification will be made on the basis of a set of
demographic projections or estimates declared official by the
National Statistical Coordination Board (NSCB).

(c) Certification of population census counts will be made as of


the census reference date, such as May 1, 1990, while those of
intercensal population estimates will be as of middle of every
year.

(d) Certification of population size based on projections may


specify the range within which the true count is deemed likely to
fall. The range will correspond to the official low and high
population projections.

(e) The smallest geographic area for which a certification on


population size may be issued will be the barangay for census
population counts, and the city or municipality for intercensal
estimates. If an LGU wants to conduct its own population census,
during off–census years, approval must be sought from the NSCB
65

and the conduct must be under the technical supervision of NSO


from planning to data processing.

(f) Certifications of population size based on published census


results shall be issued by the Provincial Census Officers or by the
Regional Census Officers. Certifications based on projections or
estimates, however, will be issued by the NSO Administrator or
his designated certifying officer. (Emphasis supplied)

The Certification of Regional Director Miranda does not


state that the demographic projections he certified have been
declared official by the NSCB. The records of this case do not also
show that the Certification of Regional Director Miranda is based
on demographic projections declared official by the NSCB. The
Certification, which states that the population of Malolos “will be
254,030 by the year 2010,” violates the requirement that intercensal
demographic projections shall be “as of the middle of every year.”
In addition, there is no showing that Regional Director Miranda has
been designated by the NSO Administrator as a certifying officer
for demographic projections in Region III. In the absence of such
official designation, only the certification of the NSO Administrator
can be given credence by this Court.

Moreover, the Certification states that “the total population


of Malolos, Bulacan as of May 1, 2000 is 175,291.” The
Certification also states that the population growth rate of Malolos
is 3.78% per year between 1995 and 2000. Based on a growth rate
of 3.78% per year, the population of Malolos of 175,291 in 2000
will grow to only 241,550 in 2010.

Also, the 2007 Census places the population of Malolos at


223,069 as of 1 August 2007.93[9] Based on a growth rate of 3.78%,
the population of Malolos will grow to only 248,365 as of 1 August
2010. Even if the growth rate is compounded yearly, the
population of Malolos of 223,069 as of 1 August 2007 will grow
to only 249,333 as of 1 August 2010.

All these conflict with what the Certification states that the
population of Malolos “will be 254,030 by the year 2010.” Based
on the Certification’s own growth rate assumption, the population
of Malolos will be less than 250,000 before the 10 May 2010
elections. Incidentally, the NSO has no published population
projections for individual municipalities or cities but only for entire
regions and provinces.

A city that has attained a population of 250,000 is entitled to


a legislative district only in the “immediately following election.”
In short, a city must first attain the 250,000 population, and
thereafter, in the immediately following election, such city shall
have a district representative. There is no showing in the present
case that the City of Malolos has attained or will attain a
population of 250,000, whether actual or projected, before the 10
May 2010 elections.

Clearly, there is no official record that the population of


the City of Malolos will be at least 250,000, actual or projected,
prior to the 10 May 2010 elections, the immediately following
election after the supposed attainment of such population. Thus, the
City of Malolos is not qualified to have a legislative district of its
own under Section 5(3), Article VI of the 1987 Constitution and
Section 3 of the Ordinance appended to the 1987 Constitution.

93[9]
Annex “F” of Petition, which is a copy of the 2007 Census from the National Statistics Office.
66

WHEREFORE, we GRANT the petition. We DECLARE


Republic Act No. 9591 UNCONSTITUTIONAL for being
violative of Section 5(3), Article VI of the 1987 Constitution and
Section 3 of the Ordinance appended to the 1987 Constitution.

Creation of a legislative district in


Camarines Sur with less than 250,000
population, valid

SEN. BENIGNO AQUINO III & MAYOR JESSE ROBREDO


VS. COMELEC, G.R. No. 189793, April 7, 2010

PEREZ, J.:

In this original action, petitioners Senator Benigno Simeon


C. Aquino III and Mayor Jesse Robredo, as public officers,
taxpayers and citizens, seek the nullification as unconstitutional of
Republic Act No. 9716, entitled “An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts
in the Province of Camarines Sur and Thereby Creating a New
Legislative District From Such Reapportionment.” Petitioners
consequently pray that the respondent Commission on Elections be
restrained from making any issuances and from taking any steps
relative to the implementation of Republic Act No. 9716.

Republic Act No. 9716 originated from House Bill No. 4264,
and was signed into law by President Gloria Macapagal Arroyo on
12 October 2009. It took effect on 31 October 2009, or fifteen (15)
days following its publication in the Manila Standard, a newspaper
of general circulation. In substance, the said law created an
additional legislative district for the Province of Camarines Sur by
reconfiguring the existing first and second legislative districts of the
province.

Prior to Republic Act No. 9716, the Province of Camarines


Sur was estimated to have a population of 1,693,821, distributed
among four (4) legislative districts in this wise:

District Municipalities/Cities Population

Del Gallego Libmanan

Ragay Minalabac

1st District Lupi Pamplona 417,304

Sipocot Pasacao

Cabusao San Fernando

Gainza Canaman

2nd District Milaor Camaligan 474,899

Naga Magarao

Pili Bombon

Calabanga
67

Ocampo

Caramoan Sangay

Garchitorena San Jose

3rd District Goa Tigaon 372,548

Lagonoy Tinamba

Presentacion Siruma

Iriga Buhi

4th District Baao Bula

Balatan Nabua 429,070

Bato

Following the enactment of Republic Act No. 9716, the first


and second districts of Camarines Sur were reconfigured in order to
create an additional legislative district for the province. Hence, the
first district municipalities of Libmanan, Minalabac, Pamplona,
Pasacao, and San Fernando were combined with the second district
municipalities of Milaor and Gainza to form a new second
legislative district. The following table illustrates the reapportionment
made by Republic Act No. 9716:

District Municipalities/Cities Population

Del Gallego

Ragay

1st District Lupi 176,383

Sipocot

Cabusao

Libmanan San Fernando

2nd District Minalabac Gainza 276,777

Pamplona Milaor

Pasacao
68

Naga Camaligan

Pili Magarao

3rd District Ocampo Bombon 439,043


(formerly 2nd
District) Canaman Calabanga

Caramoan Sangay

Garchitorena San Jose

4th District Goa Tigaon 372,548


(formerly 3rd
District) Lagonoy Tinamba

Presentacion Siruma

Iriga Buhi

5th District Baao Bula


(formerly 4th
District) Balatan Nabua 429,070

Bato

Petitioner Aquino III was one of two senators who voted


against the approval of the Bill by the Senate. His co-petitioner,
Robredo, is the Mayor of Naga City, which was a part of the former
second district from which the municipalities of Gainza and Milaor
were taken for inclusion in the new second district. No other local
executive joined the two; neither did the representatives of the
former third and fourth districts of the province.

Petitioners contend that the reapportionment introduced by


Republic Act No. 9716, runs afoul of the explicit constitutional
standard that requires a minimum population of two hundred fifty
thousand (250,000) for the creation of a legislative district. The
petitioners claim that the reconfiguration by Republic Act No. 9716
of the first and second districts of Camarines Sur is
unconstitutional, because the proposed first district will end up with
a population of less than 250,000 or only 176,383.

Petitioners rely on Section 5(3), Article VI of the 1987


Constitution as basis for the cited 250,000 minimum population
standard. The provision reads:

Article VI

Section 5. (1) x x x x
69

(3) Each legislative district shall comprise, as far as practicable,


contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.

The petitioners posit that the 250,000 figure appearing in the


above-cited provision is the minimum population requirement for
the creation of a legislative district. The petitioners theorize that,
save in the case of a newly created province, each legislative district
created by Congress must be supported by a minimum population
of at least 250,000 in order to be valid. Under this view, existing
legislative districts may be reapportioned and severed to form new
districts, provided each resulting district will represent a population
of at least 250,000. On the other hand, if the reapportionment
would result in the creation of a legislative seat representing a
populace of less than 250,000 inhabitants, the reapportionment must
be stricken down as invalid for non-compliance with the minimum
population requirement.

In support of their theory, the petitioners point to what they


claim is the intent of the framers of the 1987 Constitution to adopt a
population minimum of 250,000 in the creation of additional
legislative seats. The petitioners argue that when the Constitutional
Commission fixed the original number of district seats in the House
of Representatives to two hundred (200), they took into account the
projected national population of fifty five million (55,000,000) for
the year 1986. According to the petitioners, 55 million people
represented by 200 district representatives translates to roughly
250,000 people for every one (1) representative. Thus, the 250,000
population requirement found in Section 5(3), Article VI of the
1987 Constitution is actually based on the population constant used
by the Constitutional Commission in distributing the initial 200
legislative seats.

By way of summary, the petitioners claim that:

1. Republic Act 9716 is unconstitutional because the newly


apportioned first district of Camarines Sur failed to meet the
population requirement for the creation of the legislative district as
explicitly provided in Article VI, Section 5, Paragraphs (1) and (3)
of the Constitution and Section 3 of the Ordinance appended
thereto; and

2. Republic Act 9716 violates the principle of proportional


representation as provided in Article VI, Section 5 paragraphs (1),
(3) and (4) of the Constitution.

The provision subject of this case states:

Article VI

Section 5. (1) The House of Representatives shall be


composed of not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities and the
Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional
and sectoral parties or organizations.

(2) x x x x
70

(3) Each legislative district shall comprise, as far as


practicable, contiguous, compact, and adjacent territory. Each city
with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative.

(4) Within three years following the return of every census,


the Congress shall make a reapportionment of legislative districts
based on the standards provided in this section.

On the other hand, the respondents, through the Office


of the Solicitor General, call attention to an apparent distinction
between cities and provinces drawn by Section 5(3), Article VI of
the 1987 Constitution. The respondents concede the existence of a
250,000 population condition, but argue that a plain and simple
reading of the questioned provision will show that the same has no
application with respect to the creation of legislative districts in
provinces. Rather, the 250,000 minimum population is only a
requirement for the creation of a legislative district in a city.

HELD:

On the procedural aspect, the respondents assert that by


choosing to avail themselves of the remedies of Certiorari and
Prohibition, the petitioners have committed a fatal procedural
lapse. No evidence that they will be injured by the implementation
of the law.

The Supreme Court has, on more than one occasion,


tempered the application of procedural rules, as well as relaxed the
requirement of locus standi whenever confronted with an important
issue of overreaching significance to society.

Hence, in Del Mar v. Philippine Amusement and Gaming


Corporation (PAGCOR) and Jaworski v. PAGCOR, this Court
sanctioned momentary deviation from the principle of the hierarchy
of courts, and took original cognizance of cases raising issues of
paramount public importance. The Jaworski case ratiocinates:

Granting arguendo that the present action cannot be properly


treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that we
set aside the technical defects and take primary jurisdiction
over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral
well being of this nation, specially the youth; hence, their proper
and just determination is an imperative need. This is in accordance
with the well-entrenched principle that rules of procedure are
not inflexible tools designed to hinder or delay, but to facilitate
and promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always
be eschewed. (Emphasis supplied)

Anent the locus standi requirement, this Court has already


uniformly ruled in Kilosbayan v. Guingona, Tatad v. Executive
Secretary, Chavez v. Public Estates Authority and Bagong
Alyansang Makabayan v. Zamora, just to name a few, that absence
of direct injury on the part of the party seeking judicial review may
be excused when the latter is able to craft an issue of transcendental
importance. In Lim v. Executive Secretary, this Court held that in
cases of transcendental importance, the cases must be settled
promptly and definitely, and so, the standing requirements may be
relaxed. This liberal stance has been echoed in the more recent
decision on Chavez v. Gonzales.
71

We go directly to the determination of whether or not a


population of 250,000 is an indispensable constitutional
requirement for the creation of a new legislative district in a
province.

There is no specific provision in the Constitution that fixes a


250,000 minimum population that must compose a legislative
district.

As already mentioned, the petitioners rely on the second


sentence of Section 5(3), Article VI of the 1987 Constitution,
coupled with what they perceive to be the intent of the framers of
the Constitution to adopt a minimum population of 250,000 for each
legislative district.

The second sentence of Section 5(3), Article VI of the


Constitution, succinctly provides: “Each city with a population of
at least two hundred fifty thousand, or each province, shall have at
least one representative.”

The provision draws a plain and clear distinction between the


entitlement of a city to a district on one hand, and the entitlement of
a province to a district on the other. For while a province is entitled
to at least a representative, with nothing mentioned about
population, a city must first meet a population minimum of 250,000
in order to be similarly entitled.

The use by the subject provision of a comma to separate the


phrase “each city with a population of at least two hundred fifty
thousand” from the phrase “or each province” point to no other
conclusion than that the 250,000 minimum population is only
required for a city, but not for a province.

Plainly read, Section 5(3) of the Constitution requires a


250,000 minimum population only for a city to be entitled to a
representative, but not so for a province.

The 250,000 minimum population requirement for legislative


districts in cities was, in turn, the subject of interpretation by this
Court in Mariano, Jr. v. COMELEC.

In Mariano, the issue presented was the constitutionality of


Republic Act No. 7854, which was the law that converted the
Municipality of Makati into a Highly Urbanized City. As it
happened, Republic Act No. 7854 created an additional legislative
district for Makati, which at that time was a lone district. The
petitioners in that case argued that the creation of an additional
district would violate Section 5(3), Article VI of the Constitution,
because the resulting districts would be supported by a population
of less than 250,000, considering that Makati had a total population
of only 450,000. The Supreme Court sustained the constitutionality
of the law and the validity of the newly created district, explaining
the operation of the Constitutional phrase “each city with a
population of at least two hundred fifty thousand,” to wit:

Petitioners cannot insist that the addition of another


legislative district in Makati is not in accord with section 5(3),
Article VI of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty
thousand (450,000). Said section provides, inter alia, that a city
with a population of at least two hundred fifty thousand (250,000)
shall have at least one representative. Even granting that the
population of Makati as of the 1990 census stood at four
hundred fifty thousand (450,000), its legislative district may still
72

be increased since it has met the minimum population


requirement of two hundred fifty thousand (250,000). In fact,
Section 3 of the Ordinance appended to the Constitution
provides that a city whose population has increased to more
than two hundred fifty thousand (250,000) shall be entitled to at
least one congressional representative. (Emphasis supplied)

The Mariano case limited the application of the 250,000


minimum population requirement for cities only to its initial
legislative district. In other words, while Section 5(3), Article VI of
the Constitution requires a city to have a minimum population of
250,000 to be entitled to a representative, it does not have to
increase its population by another 250,000 to be entitled to an
additional district.

There is no reason why the Mariano case, which involves the


creation of an additional district within a city, should not be applied
to additional districts in provinces. Indeed, if an additional
legislative district created within a city is not required to represent a
population of at least 250,000 in order to be valid, neither should
such be needed for an additional district in a province, considering
moreover that a province is entitled to an initial seat by the mere
fact of its creation and regardless of its population.

Consistent with Mariano and with the framer deliberations


on district apportionment, we stated in Bagabuyo v. COMELEC
that

x x x Undeniably, these figures show a disparity in the population


sizes of the districts. The Constitution, however, does not require
mathematical exactitude or rigid equality as a standard in
gauging equality of representation. x x x. To ensure quality
representation through commonality of interests and ease of access
by the representative to the constituents, all that the Constitution
requires is that every legislative district should comprise, as far as
practicable, contiguous, compact and adjacent territory. (Emphasis
supplied).

WHEREFORE, the petition is hereby DISMISSED.


Republic Act No. 9716 entitled “An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts
in the Province of Camarines Sur and Thereby Creating a New
Legislative District From Such Reapportionment” is a VALID
LAW.

DISSENTING OPINION

CARPIO, J.:

The majority opinion wreaks havoc on the bedrock principle


of our “democratic and republican State” that all votes are equal.
Instead, the majority opinion introduces the Orwellian concept that
some votes are more equal than others. The majority opinion
allows, for the first time under the 1987 Constitution, voters in a
legislative district created by Congress to send one representative to
Congress even if the district has a population of only 176,383. In
sharp contrast, all other legislative districts created by Congress
send one representative each because they all meet the minimum
population requirement of 250,000.
73

The assailed Republic Act No. 9716 (RA 9716) is


unconstitutional for being utterly repugnant to the clear and precise
“standards” prescribed in Section 5, Article VI of the 1987
Constitution for the creation of legislative districts. Section 5(4) of
Article VI mandates that “Congress shall make a
reapportionment of legislative districts based on the standards”
fixed in Section 5. These constitutional standards, as far as
population is concerned, are: (1) proportional representation; (2)
minimum population of 250,000 per legislative district; (3)
progressive ratio in the increase of legislative districts as the
population base increases; and (4) uniformity in apportionment
of legislative districts “in provinces, cities, and the Metropolitan
Manila area.” The assailed RA 9716 grossly violates these
constitutional standards.

There was never any debate in the design of our government


that the members of the House of Representatives, just like the
members of the Senate, represent people – not provinces, cities,
or any other political unit. The only difference is that the members
of the Senate represent the people at large while the members of the
House represent the people in legislative districts. Thus,
population – or the number of inhabitants in a district – is the
essential measure of representation in the House of
Representatives. Section 5(1), Article VI of the 1987 Constitution,
just like in the previous Constitutions, could not be any clearer:

The House of Representatives shall be composed of x x x


members, x x x, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x x
x. (Emphasis supplied)

Section 5(1), Article VI of the 1987 Constitution is even


more precise by providing that the Members of the House “shall be
elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a
uniform and progressive ratio x x x.” The phrase “as nearly as
may be according to the number of their respective inhabitants” in
the 1935 Constitution has been changed in the 1987 Constitution to
the more precise “in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x
x x.” The addition of the phrase “on the basis of a uniform and
progressive ratio” was meant to stress that the rule on proportional
representation shall apply uniformly in the apportionment of every
legislative district.

The phrase “in accordance with the number of their


respective inhabitants,” which precedes the phrase “provinces,
cities and the Metropolitan Manila area,” means that legislative
districts in provinces, cities and the Metropolitan Manila area shall
be apportioned according to proportional representation or equal
representation for equal numbers of people. Thus, there shall be
one legislative district for every given number of people, whether
inhabiting in provinces, cities or the Metropolitan Manila area.

The phrase “on the basis of a uniform x x x ratio” means


that the ratio of one legislative district for every given number of
people shall be applied uniformly in all apportionments, whether in
provinces, cities or the Metropolitan Manila area. Section 5(3) of
Article VI mandates that “[e]ach city with a population of at least
74

two hundred fifty thousand x x x shall have at least one


representative.” Consequently, a population of 250,000 serves as
the default minimum population applicable to every legislative
district following the rule on uniformity in the apportionment of
legislative districts, whether in provinces, cities or in the
Metropolitan Manila area.

The phrase “progressive ratio” means that the number of


legislative districts shall increase as the number of the population
increases, whether in provinces, cities or the Metropolitan Manila
area. Thus, a province shall have one legislative district if it has a
population of 250,000, and two legislative districts if it has
500,000. This insures that proportional representation is maintained
if there are increases in the population of a province, city, or the
Metropolitan Manila area. This is what is meant by a “progressive
ratio” in the apportionment of legislative districts, a ratio that must
also be uniformly applied.

The Constitution itself provides the “standards” against


which reapportionment laws like RA 9716 will be tested, following
its command that “Congress shall make a reapportionment of
legislative districts based on the standards provided in this
section,” referring to Section 5, Article VI. These standards
relate to first, population, and second, territory. Section 5
admits of no other standards.

On population, the standards of the 1987 Constitution have


four elements. First is the rule on proportional representation,
which is the universal standard in direct representation in
legislatures. Second is the rule on a minimum population of
250,000 per legislative district, which was not present in our
previous Constitutions. Third is the rule on progressive ratio, which
means that the number of legislative districts shall increase as the
number of the population increases in accordance with the rule on
proportional representation. Fourth is the rule on uniformity,
which requires that the first three rules shall apply uniformly in
all apportionments in provinces, cities and the Metropolitan
Manila area.

The Constitution and the Ordinance appended to the 1987


Constitution fixes the minimum population of a legislative district
at 250,000. Although textually relating to cities, this minimum
population requirement applies equally to legislative districts
apportioned in provinces and the Metropolitan Manila area because
of the constitutional command that “legislative districts [shall be]
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio.”
To reiterate, the Constitution commands that this rule on
uniformity shall apply to legislative districts in “provinces,
cities, and the Metropolitan Manila area.” Otherwise, districts
apportioned in provinces, if freed from the minimum population
requirement, will have constituencies two, four, ten times lower
than in districts apportioned in cities, violating the constitutional
command that apportionment shall be based on a uniform ratio in
“provinces, cities, and the Metropolitan Manila area.”

In short, the constitutional “standards” in the


apportionment of legislative districts under Section 5 of Article
VI, as far as population is concerned, are: (1) proportional
representation; (2) a minimum “population of at least two
hundred fifty thousand” per legislative district; (3) progressive
ratio in the increase of legislative districts as the population
base increases; and (4) uniformity in the apportionment of
75

legislative districts in “provinces, cities, and the Metropolitan


Manila area.”

RA 9716 grossly malapportions Camarines Sur’s proposed


five legislative districts by flouting the standards of proportional
representation among legislative districts and the minimum
population per legislative district.

Based on the 2007 census, the proposed First District


under RA 9716 will have a population of only 176,383, which is
29% below the constitutional minimum population of 250,000
per legislative district. In contrast, the remaining four proposed
districts have populations way above the minimum with the highest
at 439,043 (proposed Third District), lowest at 276,777 (proposed
Second District) and an average of 379,359. Indeed, the disparity is
so high that three of the proposed districts (Third, Fourth, and Fifth
Districts) have populations more than double that of the proposed
First District. This results in wide variances among the districts’
populations. Still using the 2007 census, the ideal per district
population for Camarines Sur is 338,764. The populations of the
proposed districts swing from this ideal by a high of positive
29.6% (Third District) to a low of negative 47.9% (First
District). This means that the smallest proposed district (First
District) is underpopulated by nearly 50% of the ideal and the
biggest proposed district (Third District) is overpopulated by
nearly 30% of the ideal.

The resulting vote undervaluation (for voters in the


disfavored districts) and vote overvaluation (for voters in the First
District) fails even the most liberal application of the constitutional
standards. Votes in the proposed First District are overvalued by
more than 200% compared to votes from the Third, Fourth, and
Fifth Districts and by more than 60% compared to votes in the
Second District. Conversely, votes from the Third, Fourth, and Fifth
Districts are undervalued by more than 200% compared to votes in
the First District while those in the Second District suffer more than
60% undervaluation. Proportional representation in redistricting
does not mean exact numbers of population, to the last digit, for
every legislative district. However, under the assailed RA 9716,
the variances swing from negative 47.9% to positive 29.6%. Under
any redistricting yardstick, such variances are grossly anomalous
and destructive of the concept of proportional representation. In
the United States, the Supreme Court there ruled that a variance of
even less than 1% is unconstitutional in the absence of proof of a
good faith effort to achieve a mathematically exact apportionment.

Equally important, RA 9716 violates the minimum


population requirement of 250,000 in creating the proposed First
District, which will have a population of only 176,383. The
minimum population of 250,000 per legislative district admits of no
variance and must be complied with to the last digit. The
Constitution mandates a population of “at least two hundred fifty
thousand” for a legislative district in a city, and under the principle
of “uniform and progressive ratio,” for every legislative district in
provinces and in the Metropolitan Manila area.

The directive in Section 5(3) of Article VI that “each


province, shall have at least one representative” means only that
when a province is created, a legislative district must also be
created with it. Can this district have a population below 250,000?
To answer in the affirmative is to ignore the constitutional mandate
that districts in provinces be apportioned “in accordance with the
number of their respective inhabitants, and on the basis of a uniform
and progressive ratio.” That the Constitution never meant to
76

exclude provinces from the requirement of proportional


representation is evident in the opening provision of Section 5(1),
which states:

The House of Representatives shall be composed of x x x


members, x x x, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio x x
x.” (Boldfacing and underscoring supplied)

In short, the Constitution clearly mandates that the creation


of legislative districts in provinces, cities and the Metropolitan
Manila area must comply with proportional representation, on the
basis of a uniform and progressive ratio.

In contrast, Congress enacted RA 9716 in the exercise of its


legislative powers under the 1987 Constitution and subject to the
reapportionment standards in Section 5, Article VI of the
Constitution. Congress is strictly bound by the reapportionment
standards in Section 5, unlike the Constitutional Commission which
could create one-time exceptions subject to ratification by the
sovereign people. Until it enacted RA 9716, Congress never
deviated from the minimum population requirement of 250,000 in
creating a legislative district. Thus, in Republic Act No. 7854 (RA
7854) which doubled the legislative districts in Makati City, the
Court in Mariano v. COMELEC took note of the certification by the
National Statistics Office that at the time of the enactment of RA
7854, the population of Makati City was 508,174, entitling it to
two representatives.

Similarly, in Republic Act No. 9371 (RA 9371) which also


doubled the legislative districts in Cagayan de Oro City, the two
districts created complied with the minimum population of
250,000 (254,644 and 299,322, respectively), as the Court noted in
Bagabuyo v. COMELEC. Contrary to the assertion of the majority
opinion, neither Mariano v. COMELEC nor Bagabuyo v.
COMELEC supports the claim that Congress can create a legislative
district with a population of less than 250,000. On the contrary,
these cases confirm that every legislative district must have a
minimum population of 250,000. Only very recently, this Court in
Aldaba v. COMELEC struck down a law creating a legislative
district in the City of Malolos, which has a population just short of
the 250,000 minimum requirement.

Whether the group of gays, lesbians, etc., are


considered marginalized groups and may be
allowed as a party list group.

ANG LADLAD LGBT PARTY VS. COMELEC, G.R. No. 190582,


April 8, 2010

DEL CASTILLO, J.:

This is a Petition for Certiorari under Rule 65 of the Rules of


Court, with an application for a writ of preliminary mandatory injunction,
filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions
of the Commission on Elections (COMELEC) dated November 11, 2009
(the First Assailed Resolution) and December 16, 2009 (the Second
Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC’s refusal to
77

accredit Ang Ladlad as a party-list organization under Republic Act (RA)


No. 7941, otherwise known as the Party-List System Act.

Ang Ladlad is an organization composed of men and women who


identify themselves as lesbians, gays, bisexuals, or trans-gendered
individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang Ladlad again
filed a Petition for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT


community is a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad
complied with the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections . Ang
Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of
governance.

On November 11, 2009, after admitting the petitioner’s evidence,


the COMELEC (Second Division) dismissed the Petition on moral
grounds, stating that:

x x x This Petition is dismissible on moral grounds.


Petitioner defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and gender
identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and


sexual attraction to, and intimate and sexual relations with, individuals of
a different gender, of the same gender, or more than one gender.”

This definition of the LGBT sector makes it crystal clear that


petitioner tolerates immorality which offends religious beliefs.

The ANG LADLAD apparently advocates sexual immorality


as indicated in the Petition’s par. 6F: ‘Consensual partnerships or
relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007,
Men Having Sex with Men or MSMs in the Philippines were estimated
as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit,


license, relationship, or accreditation. Hence, pertinent provisions of the
Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.

ANG LADLAD collides with Article 695 of the Civil Code


which defines nuisance as ‘Any act, omission, establishment, business,
condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The


contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not contrary
to law, morals, good customs, public order or public policy. Art 1409 of
78

the Civil Code provides that ‘Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or public policy’ are
inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community,


the Revised Penal Code, as amended, penalizes ‘Immoral doctrines,
obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and


exhibitions, and indecent shows. — The penalty of prision mayor or a
fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines


openly contrary to public morals;

When Ang Ladlad sought reconsideration to the COMELEC EN


BANC, three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento,
and Armando Velasco), while three commissioners voted to deny Ang
Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in his Separate
Opinion, upheld the First Assailed Resolution, stating that:

Ladlad is applying for accreditation as a sectoral party in the


party-list system. Even assuming that it has properly proven its under-
representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the


purpose of the party-list system of electing congressional representatives
is to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the


ability of an organization to represent its constituencies, then all
representative organizations would have found themselves into the party-
list race. But that is not the intention of the framers of the law. The party-
list system is not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the party-list
system is a tool for the realization of aspirations of marginalized
individuals whose interests are also the nation’s – only that their
interests have not been brought to the attention of the nation because of
their under representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation
under the party-list system will remain just that.

Thus, even if society’s understanding, tolerance, and


acceptance of LGBT’s is elevated, there can be no denying that Ladlad
constituencies are still males and females, and they will remain either
male or female protected by the same Bill of Rights that applies to all
citizens alike.

The COMELEC likewise used the Holy Bible and the Koran in
denying Ladlad’s application.

On January 4, 2010, Ang Ladlad filed this Petition, praying that


the Court annul the Assailed Resolutions and direct the COMELEC to
grant Ang Ladlad’s application for accreditation. Ang Ladlad also
79

sought the issuance ex parte of a preliminary mandatory injunction


against the COMELEC, which had previously announced that it would
begin printing the final ballots for the May 2010 elections by January 25,
2010.

On January 6, 2010, the Office of the Solicitor General (OSG


was ordered to file its Comment on behalf of COMELEC not later than
12:00 noon of January 11, 2010. Instead of filing a Comment, however,
the OSG filed a Motion for Extension, requesting that it be given until
January 16, 2010 to Comment. Somewhat surprisingly, the OSG later
filed a Comment in support of petitioner’s application. Thus, in order to
give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment. The COMELEC, through its Law
Department, filed its Comment on February 2, 2010.

In the meantime, due to the urgency of the petition, a temporary


restraining order was issued on January 12, 2010, effective immediately
and continuing until further orders from this Court, directing the
COMELEC to cease and desist from implementing the Assailed
Resolutions.

Also, on January 13, 2010, the Commission on Human Rights


(CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,
attaching thereto its Comment-in-Intervention. The CHR opined that the
denial of Ang Ladlad’s petition on moral grounds violated the standards
and principles of the Constitution, the Universal Declaration of Human
Rights (UDHR), and the International Covenant on Civil and Political
Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to
intervene.

HELD:

We grant the petition.

Compliance with the Requirements of the Constitution and Republic


Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration


on the ground that the LGBT sector is neither enumerated in the
Constitution and RA 7941, nor is it associated with or related to any of
the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong


Bayani stands for the proposition that only those sectors specifically
enumerated in the law or related to said sectors (labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission
on Elections, “the enumeration of marginalized and under-
represented sectors is not exclusive”. The crucial element is not
whether a sector is specifically enumerated, but whether a particular
organization complies with the requirements of the Constitution and RA
7941.

A cursory perusal of Ang Ladlad’s initial petition shows that it


never claimed to exist in each province of the Philippines. Rather,
petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100
affiliates and members around the country, and 4,044 members in its
electronic discussion group. Ang Ladlad also represented itself to be “a
national LGBT umbrella organization with affiliates around the
Philippines composed of the following LGBT networks:”
80

 Abra Gay Association


 Aklan Butterfly Brigade (ABB) – Aklan
 Albay Gay Association
 Arts Center of Cabanatuan City – Nueva Ecija
 Boys Legion – Metro Manila
 Cagayan de Oro People Like Us (CDO PLUS)
 Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
 Cebu Pride – Cebu City
 Circle of Friends
 Dipolog Gay Association – Zamboanga del Norte
 Gay, Bisexual, & Transgender Youth Association (GABAY)
 Gay and Lesbian Activists Network for Gender Equality (GALANG) –
Metro Manila
 Gay Men’s Support Group (GMSG) – Metro Manila
 Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
 Iloilo City Gay Association – Iloilo City
 Kabulig Writer’s Group – Camarines Sur
 Lesbian Advocates Philippines, Inc. (LEAP)
 LUMINA – Baguio City
 Marikina Gay Association – Metro Manila
 Metropolitan Community Church (MCC) – Metro Manila
 Naga City Gay Association – Naga City
 ONE BACARDI
 Order of St. Aelred (OSAe) – Metro Manila
 PUP LAKAN
 RADAR PRIDEWEAR
 Rainbow Rights Project (R-Rights), Inc. – Metro Manila
 San Jose del Monte Gay Association – Bulacan
 Sining Kayumanggi Royal Family – Rizal
 Society of Transexual Women of the Philippines (STRAP) – Metro
Manila
 Soul Jive – Antipolo, Rizal
 The Link – Davao City
 Tayabas Gay Association – Quezon
 Women’s Bisexual Network – Metro Manila
 Zamboanga Gay Association – Zamboanga City

Against this backdrop, we find that Ang Ladlad has sufficiently


demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELEC’s moral objection and the
belated allegation of non-existence, nowhere in the records has the
respondent ever found/ruled that Ang Ladlad is not qualified to register
as a party-list organization under any of the requisites under RA 7941 or
the guidelines in Ang Bagong Bayani. The difference, COMELEC
claims, lies in Ang Ladlad’s morality, or lack thereof.

Our Constitution provides in Article III, Section 5 that “[n]o


law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof.” At bottom, what our non-
establishment clause calls for is “government neutrality in religious
matters.” Clearly, “governmental reliance on religious justification
is inconsistent with this policy of neutrality.” We thus find that it was
grave violation of the non-establishment clause for the COMELEC to
utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the


Assailed Resolutions should depend, instead, on whether the COMELEC
is able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated, government must act
for secular purposes and in ways that have primarily secular effects. As
we held in Estrada v. Escritor:
81

x x x The morality referred to in the law is public and


necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. "Religious teachings as expressed in public debate may influence
the civil public order but public moral disputes may be resolved only on
grounds articulable in secular terms." Otherwise, if government relies
upon religious beliefs in formulating public policies and morals, the
resulting policies and morals would require conformity to what some
might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a "compelled religion," anathema to religious
freedom. Likewise, if government based its actions upon religious
beliefs, it would tacitly approve or endorse that belief and thereby also
tacitly disapprove contrary religious or non-religious views that would
not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens.

We are not blind to the fact that, through the years, homosexual
conduct, and perhaps homosexuals themselves, have borne the brunt of
societal disapproval. It is not difficult to imagine the reasons behind this
censure – religious beliefs, convictions about the preservation of
marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the
Philippines has not seen fit to criminalize homosexual conduct.
Evidently, therefore, these “generally accepted public morals” have not
been convincingly transplanted into the realm of law.

The Assailed Resolutions have not identified any specific overt


immoral act performed by Ang Ladlad. Even the OSG agrees that “there
should have been a finding by the COMELEC that the group’s members
have committed or are committing immoral acts.” The OSG argues:

x x x A person may be sexually attracted to a person of the


same gender, of a different gender, or more than one gender, but mere
attraction does not translate to immoral acts. There is a great divide
between thought and action. Reduction ad absurdum. If immoral
thoughts could be penalized, COMELEC would have its hands full of
disqualification cases against both the “straights” and the gays.”
Certainly this is not the intendment of the law.

Respondent has failed to explain what societal ills are sought to be


prevented, or why special protection is required for the youth. Neither
has the COMELEC condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as to irreparably
damage the moral fabric of society. We, of course, do not suggest that
the state is wholly without authority to regulate matters concerning
morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered
detrimental to society. Nonetheless, we cannot countenance advocates
who, undoubtedly with the loftiest of intentions, situate morality on one
end of an argument or another, without bothering to go through the rigors
of legal reasoning and explanation. In this, the notion of morality is
robbed of all value. Clearly then, the bare invocation of morality will not
remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations


of our penal and civil laws flimsy, at best; disingenuous, at worst. Article
694 of the Civil Code defines a nuisance as “any act, omission,
establishment, condition of property, or anything else which shocks,
defies, or disregards decency or morality,” the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil
action, or abatement without judicial proceedings. A violation of Article
201 of the Revised Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly needs to be
82

emphasized that mere allegation of violation of laws is not proof, and a


mere blanket invocation of public morals cannot replace the institution of
civil or criminal proceedings and a judicial determination of liability or
culpability.

As such, we hold that moral disapproval, without more, is not a


sufficient governmental interest to justify exclusion of homosexuals from
participation in the party-list system. The denial of Ang Ladlad’s
registration on purely moral grounds amounts more to a statement of
dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest. Respondent’s blanket justifications give rise
to the inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally reprehensible
act. It is this selective targeting that implicates our equal protection
clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our


Constitution, which provides “nor shall any person be denied equal
protection of the laws,” courts have never interpreted the provision as an
absolute prohibition on classification. “Equality,” said Aristotle,
“consists in the same treatment of similar persons.” The equal protection
clause guarantees that no person or class of persons shall be deprived of
the same protection of laws which is enjoyed by other persons or other
classes in the same place and in like circumstances.

Recent jurisprudence has affirmed that if a law neither


burdens a fundamental right nor targets a suspect class, we will
uphold the classification as long as it bears a rational relationship to
some legitimate government end. In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, we declared that
“[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled with
a deferential attitude to legislative classifications and a reluctance to
invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution.”

The COMELEC posits that the majority of the Philippine


population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine
electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that
public opinion is as the COMELEC describes it, the asserted state
interest here – that is, moral disapproval of an unpopular minority –
is not a legitimate state interest that is sufficient to satisfy rational
basis review under the equal protection clause. The COMELEC’s
differentiation, and its unsubstantiated claim that Ang Ladlad
cannot contribute to the formulation of legislation that would
benefit the nation, furthers no legitimate state interest other than
disapproval of or dislike for a disfavored group.
It bears stressing that our finding that COMELEC’s act of
differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the
purposes of the equal protection clause. We are not prepared to
single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence
to this effect, and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that it be recognized
83

under the same basis as all other groups similarly situated, and that
the COMELEC made “an unwarranted and impermissible
classification not justified by the circumstances of the case.”

Freedom of Expression and Association

Freedom of expression constitutes one of the essential foundations


of a democratic society, and this freedom applies not only to those that
are favorably received but also to those that offend, shock, or disturb.
Any restriction imposed in this sphere must be proportionate to the
legitimate aim pursued. Absent any compelling state interest, it is not for
the COMELEC or this Court to impose its views on the populace.
Otherwise stated, the COMELEC is certainly not free to interfere with
speech for no better reason than promoting an approved message or
discouraging a disfavored one.

This position gains even more force if one considers that


homosexual conduct is not illegal in this country. It follows that both
expressions concerning one’s homosexuality and the activity of forming
a political association that supports LGBT individuals are protected as
well.

Other jurisdictions have gone so far as to categorically rule


that even overwhelming public perception that homosexual conduct
violates public morality does not justify criminalizing same-sex
conduct. European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and equality
grounds, citing general privacy and equal protection provisions in
foreign and international texts. To the extent that there is much to
learn from other jurisdictions that have reflected on the issues we
face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts,
may nevertheless have persuasive influence on the Court’s
analysis.

In the area of freedom of expression, for instance, United


States courts have ruled that existing free speech doctrines protect
gay and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by “something more than
a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.”

With respect to freedom of association for the advancement


of ideas and beliefs, in Europe, with its vibrant human rights
tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a change in
the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with
democratic principles. The ECHR has emphasized that political
ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity
of expression through the exercise of the right of association, even
if such ideas may seem shocking or unacceptable to the authorities
or the majority of the population. A political group should not be
hindered solely because it seeks to publicly debate controversial
political issues in order to find solutions capable of satisfying
everyone concerned. Only if a political party incites violence or
puts forward policies that are incompatible with democracy does it
fall outside the protection of the freedom of association guarantee.
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They
are entitled to hold and express that view. On the other hand,
LGBTs and their supporters, in all likelihood, believe with equal
84

fervor that relationships between individuals of the same sex are


morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court
is concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration
the values of other members of the community.

Of course, none of this suggests the impending arrival of a


golden age for gay rights litigants. It well may be that this Decision will
only serve to highlight the discrepancy between the rigid constitutional
analysis of this Court and the more complex moral sentiments of
Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we
neither attempt nor expect to affect individual perceptions of
homosexuality through this Decision.

WHEREFORE, the Petition is hereby GRANTED.

Formula in determining the party-list


representatives Is the 20% ceiling mandatory?
(Veterans vs. COMELEC Formula abandoned)

BARANGAY ASSOCIATION FOR NATIONAL


ADVANCEMENT AND TRANSPARENCY (BANAT)
- versus -COMMISSION ON ELECTIONS ,
G.R. No. 179271, May 2009

CARPIO, J.:
The Case

Petitioner in G.R. No. 179271 — Barangay Association for National


Advancement and Transparency (BANAT) — in a petition for certiorari and
mandamus,94[1] assails the Resolution95[2] promulgated on 3 August 2007 by
the Commission on Elections (COMELEC) in NBC No. 07-041 (PL). The
COMELEC’s resolution in NBC No. 07-041 (PL) approved the
recommendation of Atty. Alioden D. Dalaig, Head of the National Board of
Canvassers (NBC) Legal Group, to deny the petition of BANAT for being
moot. BANAT filed before the COMELEC En Banc, acting as NBC, a
Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and
Science Professionals (ABS), Aangat Tayo (AT), and Coalition of
Associations of Senior Citizens in the Philippines, Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy


for Teacher Empowerment Through Action, Cooperation and Harmony
Towards Educational Reforms (A Teacher) — in a petition for certiorari with
mandamus and prohibition,96[3] assails NBC Resolution No. 07-60 97[4]
promulgated on 9 July 2007. NBC No. 07-60 made a partial proclamation
of parties, organizations and coalitions that obtained at least two percent of
the total votes cast under the Party-List System. The COMELEC announced
94
95
96
97
85

that, upon completion of the canvass of the party-list results, it would


determine the total number of seats of each winning party, organization, or
coalition in accordance with Veterans Federation Party v. COMELEC 98[5]
(Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of


the Veterans Freedom Party, filed a motion to intervene in both G.R. Nos.
179271 and 179295.

The Facts

The 14 May 2007 elections included the elections for the party-list
representatives. The COMELEC counted 15,950,900 votes cast for 93
parties under the Party-List System.99[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full
Number of Party-List Representatives Provided by the Constitution,
docketed as NBC No. 07-041 (PL) before the NBC. BANAT filed its
petition because “[t]he Chairman and the Members of the [COMELEC]
have recently been quoted in the national papers that the [COMELEC] is
duty bound to and shall implement the Veterans ruling, that is, would apply
the Panganiban formula in allocating party-list seats.” 100[7] There were no
intervenors in BANAT’s petition before the NBC. BANAT filed a
memorandum on 19 July 2007.

On 9 July 2007, the COMELEC, sitting as the NBC, promulgated


NBC Resolution No. 07-60. NBC Resolution No. 07-60 proclaimed thirteen
(13) parties as winners in the party-list elections, namely: Buhay Hayaan
Yumabong (BUHAY), Bayan Muna, Citizens’ Battle Against Corruption
(CIBAC), Gabriela’s Women Party (Gabriela), Association of Philippine
Electric Cooperatives (APEC), A Teacher, Akbayan! Citizen’s Action Party
(AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco
Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns
(ARC), and Abono. We quote NBC Resolution No. 07-60 in its entirety
below:

WHEREAS, the Commission on Elections sitting en banc


as National Board of Canvassers, thru its Sub-Committee for
Party-List, as of 03 July 2007, had officially canvassed, in open
and public proceedings, a total of fifteen million two hundred
eighty three thousand six hundred fifty-nine (15,283,659)
votes under the Party-List System of Representation, in
connection with the National and Local Elections conducted last
14 May 2007;

WHEREAS, the study conducted by the Legal and


Tabulation Groups of the National Board of Canvassers reveals
that the projected/maximum total party-list votes cannot go any
higher than sixteen million seven hundred twenty three
thousand one hundred twenty-one (16,723,121) votes given
the following statistical data:

Projected/Maximum Party-List Votes for May 2007


Elections
98
99
100
86

i. Total party-list votes already 15,283,659


canvassed/tabulated
ii. Total party-list votes remaining
uncanvassed/ untabulated (i.e. canvass 1,337,032
deferred)
iii. Maximum party-list votes (based on
100% outcome) from areas not yet
submitted for canvass (Bogo, Cebu; Bais
City; Pantar, Lanao del Norte; and 102,430
Pagalungan, Maguindanao)
Maximum Total Party-List Votes 16,723,121

WHEREAS, Section 11 of Republic Act No.


7941 (Party-List System Act) provides in part:

The parties, organizations, and coalitions


receiving at least two percent (2%) of the
total votes cast for the party-list system
shall be entitled to one seat each:
provided, that those garnering more than
two percent (2%) of the votes shall be
entitled to additional seats in proportion to
their total number of votes: provided,
finally, that each party, organization, or
coalition shall be entitled to not more than
three (3) seats.

WHEREAS, for the 2007 Elections, based on


the above projected total of party-list votes, the
presumptive two percent (2%) threshold can be
pegged at three hundred thirty four thousand four
hundred sixty-two (334,462) votes;

WHEREAS, the Supreme Court, in Citizen’s


Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans
Federation Party versus COMELEC adopting a
formula for the additional seats of each party,
organization or coalition receving more than the
required two percent (2%) votes, stating that the
same shall be determined only after all party-list
ballots have been completely canvassed;

WHEREAS, the parties, organizations, and


coalitions that have thus far garnered at least three
hundred thirty four thousand four hundred sixty-
two (334,462) votes are as follows:

RANK PARTY/ORGANIZATION/ VOTES


COALITION RECEIVED
1 BUHAY 1,16
3,218
87

2 BAYAN MUNA 97
2,730
3 CIBAC 76
0,260
4 GABRIELA 61
0,451
5 APEC 53
8,971
6 A TEACHER 47
6,036
7 AKBAYAN 47
0,872
8 ALAGAD 42
3,076
9 BUTIL 40
5,052
10 COOP-NATCO 39
0,029
11 BATAS 38
6,361
12 ANAK PAWIS 37
6,036
13 ARC 33
8,194
14 ABONO 33
7,046

WHEREAS, except for Bagong Alyansang


Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS), against which an URGENT PETITION
FOR CANCELLATION/REMOVAL OF
REGISTRATION AND DISQUALIFICATION OF
PARTY-LIST NOMINEE (With Prayer for the
Issuance of Restraining Order) has been filed before
the Commission, docketed as SPC No. 07-250, all
the parties, organizations and coalitions included in
the aforementioned list are therefore entitled to at
least one seat under the party-list system of
representation in the meantime.

NOW, THEREFORE, by virtue of the powers


vested in it by the Constitution, the Omnibus
Election Code, Executive Order No. 144, Republic
Act Nos. 6646, 7166, 7941, and other election laws,
the Commission on Elections, sitting en banc as the
National Board of Canvassers, hereby RESOLVES to
PARTIALLY PROCLAIM, subject to certain
conditions set forth below, the following parties,
organizations and coalitions participating under the
Party-List System:
88

1 Buhay Hayaan Yumabong BUHAY


2 Bayan Muna BAYAN
MUNA
3 Citizens Battle Against Corruption CIBAC
4 Gabriela Women’s Party GABRIELA
5 Association of Philippine Electric APEC
Cooperatives
6 Advocacy for Teacher A TEACHER
Empowerment Through Action,
Cooperation and Harmony
Towards Educational Reforms,
Inc.
7 Akbayan! Citizen’s Action Party AKBAYAN
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
10 Cooperative-Natco Network Party COOP-
NATCCO
11 Anak Pawis ANAKPAWIS
12 Alliance of Rural Concerns ARC
13 Abono ABONO

This is without prejudice to the proclamation of


other parties, organizations, or coalitions which may
later on be established to have obtained at least two
percent (2%) of the total actual votes cast under the
Party-List System.

The total number of seats of each winning


party, organization or coalition shall be determined
pursuant to Veterans Federation Party versus
COMELEC formula upon completion of the canvass
of the party-list results.

The proclamation of Bagong Alyansang


Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS) is hereby deferred until final resolution of
SPC No. 07-250, in order not to render the
proceedings therein moot and academic.

Finally, all proclamation of the nominees of


concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance
until final resolution of their respective cases.

Let the Clerk of the Commission implement


this Resolution, furnishing a copy thereof to the
Speaker of the House of Representatives of the
Philippines.

SO ORDERED.101[8] (Emphasis in the original)


101
89

Pursuant to NBC Resolution No. 07-60, the COMELEC,


acting as NBC, promulgated NBC Resolution No. 07-72, which
declared the additional seats allocated to the appropriate parties.
We quote from the COMELEC’s interpretation of the Veterans
formula as found in NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission


on Elections sitting en banc as the National Board of
Canvassers proclaimed thirteen (13) qualified parties,
organization[s] and coalitions based on the
presumptive two percent (2%) threshold of 334,462
votes from the projected maximum total number of
party-list votes of 16,723,121, and were thus given
one (1) guaranteed party-list seat each;

WHEREAS, per Report of the Tabulation


Group and Supervisory Committee of the National
Board of Canvassers, the projected maximum total
party-list votes, as of July 11, 2007, based on the
votes actually canvassed, votes canvassed but not
included in Report No. 29, votes received but
uncanvassed, and maximum votes expected for
Pantar, Lanao del Norte, is 16,261,369; and that the
projected maximum total votes for the thirteen (13)
qualified parties, organizations and coalition[s] are as
follows:

Party-List Projected total number of


votes
1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964
4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL 409,298
10 COOP-NATCO 412,920
11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151

WHEREAS, based on the above Report, Buhay


Hayaan Yumabong (Buhay) obtained the highest
number of votes among the thirteen (13) qualified
parties, organizations and coalitions, making it the
“first party” in accordance with Veterans Federation
Party versus COMELEC, reiterated in Citizen’s
Battle Against Corruption (CIBAC) versus
90

COMELEC;

WHEREAS, qualified parties, organizations


and coalitions participating under the party-list
system of representation that have obtained one
guaranteed (1) seat may be entitled to an additional
seat or seats based on the formula prescribed by the
Supreme Court in Veterans;

WHEREAS, in determining the additional seats


for the “first party”, the correct formula as expressed
in Veterans, is:

Number of votes of first party


Proportion of votes of first
--------------------- = party
relative to total votes for
Total votes for party-list system party-list
system

wherein the proportion of votes received by the first


party (without rounding off) shall entitle it to
additional seats:

Proportion of votes Additional


received seats
by the first party
Equal to or at least 6% Two (2)
additional
seats
Equal to or greater than 4% One (1)
but less than 6% additional
seat
Less than 4% No additional
seat

WHEREAS, applying the above formula,


Buhay obtained the following percentage:

1,178,747
-------- = 0.07248 or 7.2%
16,261,369

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats


for the other qualified parties, organizations and
coalitions, the correct formula as expressed in
Veterans and reiterated in CIBAC is, as follows:

No. of votes of
concerned party
No. of additional
Additional seats for = ------------------- x
91

seats allocated to
a concerned party No. of votes of
first party
first party

WHEREAS, applying the above formula, the


results are as follows:

Party List Percentage Additional


Seat
BAYAN 1.65 1
MUNA
CIBAC 1.28 1
GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0
ALAGAD 0.71 0
BUTIL 0.69 0
COOP- 0.69 0
NATCO
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0

NOW THEREFORE, by virtue of the powers


vested in it by the Constitution, Omnibus Election
Code, Executive Order No. 144, Republic Act Nos.
6646, 7166, 7941 and other elections laws, the
Commission on Elections en banc sitting as the
National Board of Canvassers, hereby RESOLVED,
as it hereby RESOLVES, to proclaim the following
parties, organizations or coalitions as entitled to
additional seats, to wit:

Party List Additional Seats


BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1

This is without prejudice to the proclamation of


other parties, organizations or coalitions which may
later on be established to have obtained at least two
per cent (2%) of the total votes cast under the party-
list system to entitle them to one (1) guaranteed seat,
92

or to the appropriate percentage of votes to entitle


them to one (1) additional seat.

Finally, all proclamation of the nominees of


concerned parties, organizations and coalitions with
pending disputes shall likewise be held in abeyance
until final resolution of their respective cases.

Let the National Board of Canvassers


Secretariat implement this Resolution, furnishing a
copy hereof to the Speaker of the House of
Representatives of the Philippines.

SO ORDERED.102[9]

Acting on BANAT’s petition, the NBC promulgated NBC


Resolution No. 07-88 on 3 August 2007, which reads as follows:

This pertains to the Petition to Proclaim the


Full Number of Party-List Representatives Provided
by the Constitution filed by the Barangay Association
for National Advancement and Transparency
(BANAT).

Acting on the foregoing Petition of the


Barangay Association for National Advancement and
Transparency (BANAT) party-list, Atty. Alioden D.
Dalaig, Head, National Board of Canvassers Legal
Group submitted his comments/observations and
recommendation thereon [NBC 07-041 (PL)], which
reads:

COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for


National Advancement and Transparency
(BANAT), in its Petition to Proclaim the
Full Number of Party-List
Representatives Provided by the
Constitution prayed for the following
reliefs, to wit:

1. That the full number -- twenty


percent (20%) -- of Party-List
representatives as mandated by Section 5,
Article VI of the Constitution shall be
proclaimed.

2. Paragraph (b), Section 11 of RA


7941 which prescribes the 2% threshold
votes, should be harmonized with Section
5, Article VI of the Constitution and with
Section 12 of the same RA 7941 in that it
102
93

should be applicable only to the first


party-list representative seats to be
allotted on the basis of their initial/first
ranking.

3. The 3-seat limit prescribed by RA


7941 shall be applied; and

4. Initially, all party-list groups shall


be given the number of seats
corresponding to every 2% of the votes
they received and the additional seats
shall be allocated in accordance with
Section 12 of RA 7941, that is, in
proportion to the percentage of votes
obtained by each party-list group in
relation to the total nationwide votes cast
in the party-list election, after deducting
the corresponding votes of those which
were allotted seats under the 2% threshold
rule. In fine, the formula/procedure
prescribed in the “ALLOCATION OF
PARTY-LIST SEATS, ANNEX “A” of
COMELEC RESOLUTION 2847 dated
25 June 1996, shall be used for [the]
purpose of determining how many seats
shall be proclaimed, which party-list
groups are entitled to representative seats
and how many of their nominees shall
seat [sic].

5. In the alternative, to declare as


unconstitutional Section 11 of Republic
Act No. 7941 and that the procedure in
allocating seats for party-list
representative prescribed by Section 12 of
RA 7941 shall be followed.

RECOMMENDATION:

The petition of BANAT is now moot and


academic.

The Commission En Banc in NBC


Resolution No. 07-60 promulgated
July 9, 2007 re “In the Matter of the
Canvass of Votes and Partial
Proclamation of the Parties, Organizations
and Coalitions Participating Under the
Party-List System During the May 14,
2007 National and Local Elections”
resolved among others that the total
number of seats of each winning party,
organization or coalition shall be
determined pursuant to the Veterans
94

Federation Party versus COMELEC


formula upon completion of the canvass
of the party-list results.”

WHEREFORE, premises considered, the


National Board of Canvassers RESOLVED, as it
hereby RESOLVES, to approve and adopt the
recommendation of Atty. Alioden D. Dalaig, Head,
NBC Legal Group, to DENY the herein petition of
BANAT for being moot and academic.

Let the Supervisory Committee implement this


resolution.

SO ORDERED.103[10]

BANAT filed a petition for certiorari and mandamus


assailing the ruling in NBC Resolution No. 07-88. BANAT did
not file a motion for reconsideration of NBC Resolution No. 07-
88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked


the COMELEC, acting as NBC, to reconsider its decision to use
the Veterans formula as stated in its NBC Resolution No. 07-60
because the Veterans formula is violative of the Constitution and
of Republic Act No. 7941 (R.A. No. 7941). On the same day,
the COMELEC denied reconsideration during the proceedings of
the NBC.104[11]

Aside from the thirteen party-list organizations proclaimed


on 9 July 2007, the COMELEC proclaimed three other party-list
organizations as qualified parties entitled to one guaranteed seat
under the Party-List System: Agricultural Sector Alliance of the
Philippines, Inc. (AGAP),105[12] Anak Mindanao (AMIN),106[13]
and An Waray.107[14] Per the certification108[15] by COMELEC, the
following party-list organizations have been proclaimed as of 19
May 2008:

Party-List No. of
Seat(s)
1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
1.5 APEC 2
1.6 A Teacher 1
1.7 Akbayan 1
103
104
105
106
107
108
95

1.8 Alagad 1
1.9 Butil 1
1.10 Coop-Natco [sic] 1
1.11 Anak Pawis 1
1.12 ARC 1
1.13 Abono 1
1.14 AGAP 1
1.15 AMIN 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng


Adhikaing Sambayanan (BATAS), against which an Urgent
Petition for Cancellation/Removal of Registration and
Disqualification of Party-list Nominee (with Prayer for the
Issuance of Restraining Order) has been filed before the
COMELEC, was deferred pending final resolution of SPC
No. 07-250.

Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list


representatives provided in Section 5(2), Article VI
of the Constitution mandatory or is it merely a
ceiling?

2. Is the three-seat limit provided in Section 11(b)


of RA 7941 constitutional?

3. Is the two percent threshold and “qualifier”


votes prescribed by the same Section 11(b) of
RA 7941 constitutional?

4. How shall the party-list representatives be


allocated?109[16]

Bayan Muna, A Teacher, and Abono, on the other hand,


raised the following issues in their petition:

I. Respondent Commission on Elections, acting


as National Board of Canvassers, committed grave
abuse of discretion amounting to lack or excess of
jurisdiction when it promulgated NBC Resolution
No. 07-60 to implement the First-Party Rule in
the allocation of seats to qualified party-list
organizations as said rule:

A. Violates the constitutional principle of


proportional representation.

B. Violates the provisions of RA 7941


particularly:
109
96

1. The 2-4-6 Formula used by the First


Party Rule in allocating additional
seats for the “First Party” violates the
principle of proportional representation
under RA 7941.

2. The use of two formulas in the


allocation of additional seats, one for
the “First Party” and another for the
qualifying parties, violates Section
11(b) of RA 7941.

3. The proportional relationships


under the First Party Rule are different
from those required under RA 7941;

C. Violates the “Four Inviolable Parameters”


of the Philippine party-list system as provided
for under the same case of Veterans
Federation Party, et al. v. COMELEC.

II. Presuming that the Commission on Elections


did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction when it
implemented the First-Party Rule in the allocation of
seats to qualified party-list organizations, the same
being merely in consonance with the ruling in
Veterans Federations Party, et al. v. COMELEC,
the instant Petition is a justiciable case as the issues
involved herein are constitutional in nature,
involving the correct interpretation and
implementation of RA 7941, and are of
transcendental importance to our nation.110[17]

Considering the allegations in the petitions and the


comments of the parties in these cases, we defined the following
issues in our advisory for the oral arguments set on 22 April
2008:

1. Is the twenty percent allocation for party-list


representatives in Section 5(2), Article VI of the
Constitution mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA


7941 constitutional?

3. Is the two percent threshold prescribed in


Section 11(b) of RA 7941 to qualify for one seat
constitutional?

4. How shall the party-list representative seats be


allocated?

110
97

5. Does the Constitution prohibit the major


political parties from participating in the party-list
elections? If not, can the major political parties be
barred from participating in the party-list
elections?111[18]

The Ruling of the Court

The petitions have partial merit. We maintain that a


Philippine-style party-list election has at least four inviolable
parameters as clearly stated in Veterans. For easy reference,
these are:

First, the twenty percent allocation — the


combined number of all party-list congressmen shall
not exceed twenty percent of the total membership of
the House of Representatives, including those elected
under the party list;

Second, the two percent threshold — only those


parties garnering a minimum of two percent of the
total valid votes cast for the party-list system are
“qualified” to have a seat in the House of
Representatives;

Third, the three-seat limit — each qualified


party, regardless of the number of votes it actually
obtained, is entitled to a maximum of three seats; that
is, one “qualifying” and two additional seats;

Fourth, proportional representation— the


additional seats which a qualified party is entitled to
shall be computed “in proportion to their total
number of votes.”112[19]

However, because the formula in Veterans has flaws in its


mathematical interpretation of the term “proportional
representation,” this Court is compelled to revisit the formula for
the allocation of additional seats to party-list organizations.

Number of Party-List Representatives:


The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

Section 5. (1) The House of Representatives


shall be composed of not more than two hundred and
fifty members, unless otherwise fixed by law, who
shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan

111
112
98

Manila area in accordance with the number of their


respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by
law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.

(2) The party-list representatives shall


constitute twenty per centum of the total number of
representatives including those under the party-list.
For three consecutive terms after the ratification of
this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided
by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors
as may be provided by law, except the religious
sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List


Representatives. — The party-list representatives
shall constitute twenty per centum (20%) of the total
number of the members of the House of
Representatives including those under the party-list.
xxx

Section 5(1), Article VI of the Constitution states that the


“House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law.”
The House of Representatives shall be composed of district
representatives and party-list representatives. The Constitution
allows the legislature to modify the number of the members of
the House of Representatives.

Section 5(2), Article VI of the Constitution, on the other


hand, states the ratio of party-list representatives to the total
number of representatives. We compute the number of seats
available to party-list representatives from the number of
legislative districts. On this point, we do not deviate from the
first formula in Veterans, thus:

Number of Number of seats


seats available x. available to
to legislative 20 party-list
districts = representatives
.80

This formula allows for the corresponding increase in the


number of seats available for party-list representatives whenever
a legislative district is created by law. Since the 14 th Congress of
the Philippines has 220 district representatives, there are 55 seats
available to party-list representatives.
99

220 x. 55
20
=
.80

After prescribing the ratio of the number of party-list


representatives to the total number of representatives, the
Constitution left the manner of allocating the seats available
to party-list representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives:


The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum


number of seats reserved under the Party-List System, as well as
on the formula to determine the guaranteed seats to party-list
candidates garnering at least two-percent of the total party-list
votes. However, there are numerous interpretations of the
provisions of R.A. No. 7941 on the allocation of “additional
seats” under the Party-List System. Veterans produced the First
Party Rule,113[20] and Justice Vicente V. Mendoza’s dissent in
Veterans presented Germany’s Niemeyer formula 114[21] as an
alternative.

The Constitution left to Congress the determination of the


manner of allocating the seats for party-list representatives.
Congress enacted R.A. No. 7941, paragraphs (a) and (b) of
Section 11 and Section 12 of which provide:

Section 11. Number of Party-List


Representatives. — x x x

In determining the allocation of seats for the


second vote,115[22] the following procedure shall be
observed:

(a) The parties, organizations, and coalitions shall


be ranked from the highest to the lowest based on the
number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions


receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one
seat each: Provided, That those garnering more
than two percent (2%) of the votes shall be
entitled to additional seats in proportion to their
total number of votes: Provided, finally, That each
party, organization, or coalition shall be entitled to
not more than three (3) seats.
113
114
115
100

Section 12. Procedure in Allocating Seats for


Party-List Representatives. — The COMELEC shall
tally all the votes for the parties, organizations, or
coalitions on a nationwide basis, rank them according
to the number of votes received and allocate party-
list representatives proportionately according to the
percentage of votes obtained by each party,
organization, or coalition as against the total
nationwide votes cast for the party-list system.
(Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations


through three formulas to allocate party-list representative seats.

The first interpretation allegedly harmonizes the provisions


of Section 11(b) on the 2% requirement with Section 12 of R.A.
No. 7941. BANAT described this procedure as follows:

(a) The party-list representatives shall constitute


twenty percent (20%) of the total Members of the
House of Representatives including those from the
party-list groups as prescribed by Section 5, Article
VI of the Constitution, Section 11 (1 st par.) of RA
7941 and Comelec Resolution No. 2847 dated 25
June 1996. Since there are 220 District
Representatives in the 14th Congress, there shall be
55 Party-List Representatives. All seats shall have to
be proclaimed.

(b) All party-list groups shall initially be allotted


one (1) seat for every two per centum (2%) of the
total party-list votes they obtained; provided, that no
party-list groups shall have more than three (3) seats
(Section 11, RA 7941).

(c) The remaining seats shall, after deducting the


seats obtained by the party-list groups under the
immediately preceding paragraph and after deducting
from their total the votes corresponding to those
seats, the remaining seats shall be allotted
proportionately to all the party-list groups which
have not secured the maximum three (3) seats under
the 2% threshold rule, in accordance with Section 12
of RA 7941.116[23]

Forty-four (44) party-list seats will be awarded under BANAT’s


first interpretation.

The second interpretation presented by BANAT assumes


that the 2% vote requirement is declared unconstitutional, and
apportions the seats for party-list representatives by following
Section 12 of R.A. No. 7941. BANAT states that the
116
101

COMELEC:

(a) shall tally all the votes for the parties,


organizations, or coalitions on a nationwide basis;
(b) rank them according to the number of votes
received; and,
(c) allocate party-list representatives
proportionately according to the percentage of
votes obtained by each party, organization or
coalition as against the total nationwide votes
cast for the party-list system.117[24]

BANAT used two formulas to obtain the same results: one is


based on the proportional percentage of the votes received by
each party as against the total nationwide party-list votes, and the
other is “by making the votes of a party-list with a median
percentage of votes as the divisor in computing the allocation of
seats.”118[25] Thirty-four (34) party-list seats will be awarded
under BANAT’s second interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher


criticize both the COMELEC’s original 2-4-6 formula and the
Veterans formula for systematically preventing all the party-list
seats from being filled up. They claim that both formulas do not
factor in the total number of seats alloted for the entire Party-List
System. Bayan Muna, Abono, and A Teacher reject the three-
seat cap, but accept the 2% threshold. After determining the
qualified parties, a second percentage is generated by dividing
the votes of a qualified party by the total votes of all qualified
parties only. The number of seats allocated to a qualified party is
computed by multiplying the total party-list seats available with
the second percentage. There will be a first round of seat
allocation, limited to using the whole integers as the equivalent
of the number of seats allocated to the concerned party-list.
After all the qualified parties are given their seats, a second
round of seat allocation is conducted. The fractions, or
remainders, from the whole integers are ranked from highest to
lowest and the remaining seats on the basis of this ranking are
allocated until all the seats are filled up.119[26]

We examine what R.A. No. 7941 prescribes to allocate


seats for party-list representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of


the participating parties from the highest to the lowest based on
the number of votes they garnered during the elections.

Table 1. Ranking of the participating parties from the highest to the


lowest based on the number of votes garnered during the elections. 120
[27]

117
118
119
120
102

Votes Votes
Rank Party Rank Party
Garnered Garnered
1 BUHAY 1,169,234 48 KALAHI 88,868
2 BAYAN 979,039 49 APOI 79,386
MUNA
3 CIBAC 755,686 50 BP 78,541
4 GABRIELA 621,171 51 AHONBAYAN 78,424
5 APEC 619,657 52 BIGKIS 77,327
6 A TEACHER 490,379 53 PMAP 75,200
7 AKBAYAN 466,112 54 AKAPIN 74,686
8 ALAGAD 423,149 55 PBA 71,544
9 COOP- 409,883 56 GRECON 62,220
NATCCO
10 BUTIL 409,160 57 BTM 60,993
11 BATAS 385,810 58 A SMILE 58,717
12 ARC 374,288 59 NELFFI 57,872
13 ANAKPAWIS 370,261 60 AKSA 57,012
14 ABONO 339,990 61 BAGO 55,846
15 AMIN 338,185 62 BANDILA 54,751
16 AGAP 328,724 63 AHON 54,522
17 AN WARAY 321,503 64 ASAHAN MO 51,722
18 YACAP 310,889 65 AGBIAG! 50,837
19 FPJPM 300,923 66 SPI 50,478
20 UNI-MAD 245,382 67 BAHANDI 46,612
21 ABS 235,086 68 ADD 45,624
22 KAKUSA 228,999 69 AMANG 43,062
23 KABATAAN 228,637 70 ABAY PARAK 42,282
24 ABA-AKO 218,818 71 BABAE KA 36,512
25 ALIF 217,822 72 SB 34,835
26 SENIOR 213,058 73 ASAP 34,098
CITIZENS
27 AT 197,872 74 PEP 33,938
28 VFP 196,266 75 ABA 33,903
ILONGGO
29 ANAD 188,521 76 VENDORS 33,691
30 BANAT 177,028 77 ADD-TRIBAL 32,896
31 ANG 170,531 78 ALMANA 32,255
KASANGGA
32 BANTAY 169,801 79 AANGAT KA 29,130
PILIPINO
33 ABAKADA 166,747 80 AAPS 26,271
34 1-UTAK 164,980 81 HAPI 25,781
35 TUCP 162,647 82 AAWAS 22,946
103

36 COCOFED 155,920 83 SM 20,744


37 AGHAM 146,032 84 AG 16,916
38 ANAK 141,817 85 AGING 16,729
PINOY
39 ABANSE! 130,356 86 APO 16,421
PINAY
40 PM 119,054 87 BIYAYANG 16,241
BUKID
41 AVE 110,769 88 ATS 14,161
42 SUARA 110,732 89 UMDJ 9,445
43 ASSALAM 110,440 90 BUKLOD 8,915
FILIPINA
44 DIWA 107,021 91 LYPAD 8,471
45 ANC 99,636 92 AA- 8,406
KASOSYO
46 SANLAKAS 97,375 93 KASAPI 6,221
47 ABC 90,058 TOTAL 15,950,900

The first clause of Section 11(b) of R.A. No. 7941 states that “parties,
organizations, and coalitions receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one seat each.” This clause
guarantees a seat to the two-percenters. In Table 2 below, we use the first 20
party-list candidates for illustration purposes. The percentage of votes garnered
by each party is arrived at by dividing the number of votes garnered by each party
by 15,950,900, the total number of votes cast for all party-list candidates.

Table 2. The first 20 party-list candidates and their respective


percentage of votes garnered over the total votes for the party-list. 121[28]

Votes
Garnered
Votes over Total Guaranteed
Rank Party
Garnered Votes for Seat
Party-List,
in %
1 BUHAY 1,169,234 7.33% 1
2 BAYAN 979,039 6.14% 1
MUNA
3 CIBAC 755,686 4.74% 1
4 GABRIELA 621,171 3.89% 1
5 APEC 619,657 3.88% 1
6 A TEACHER 490,379 3.07% 1
7 AKBAYAN 466,112 2.92% 1
8 ALAGAD 423,149 2.65% 1
9 COOP- 409,883 2.57% 1
NATCCO
121
104

10 BUTIL 409,160 2.57% 1


11 BATAS122[29] 385,810 2.42% 1
12 ARC 374,288 2.35% 1
13 ANAKPAWIS 370,261 2.32% 1
14 ABONO 339,990 2.13% 1
15 AMIN 338,185 2.12% 1
16 AGAP 328,724 2.06% 1
17 AN WARAY 321,503 2.02% 1
Total 17
18 YACAP 310,889 1.95% 0
19 FPJPM 300,923 1.89% 0
20 UNI-MAD 245,382 1.54% 0

From Table 2 above, we see that only 17 party-list


candidates received at least 2% from the total number of votes
cast for party-list candidates. The 17 qualified party-list
candidates, or the two-percenters, are the party-list candidates
that are “entitled to one seat each,” or the guaranteed seat. In
this first round of seat allocation, we distributed 17 guaranteed
seats.
The second clause of Section 11(b) of R.A. No. 7941
provides that “those garnering more than two percent (2%) of the
votes shall be entitled to additional seats in proportion to their
total number of votes.” This is where petitioners’ and
intervenors’ problem with the formula in Veterans lies.
Veterans interprets the clause “in proportion to their total number
of votes” to be in proportion to the votes of the first party.
This interpretation is contrary to the express language of R.A.
No. 7941.

We rule that, in computing the allocation of additional


seats, the continued operation of the two percent threshold for
the distribution of the additional seats as found in the second
clause of Section 11(b) of R.A. No. 7941 is unconstitutional.
This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of
available party list seats when the number of available party list
seats exceeds 50. The continued operation of the two percent
threshold in the distribution of the additional seats frustrates the
attainment of the permissive ceiling that 20% of the members of
the House of Representatives shall consist of party-list
representatives.

To illustrate: There are 55 available party-list seats.


Suppose there are 50 million votes cast for the 100 participants
in the party list elections. A party that has two percent of the
votes cast, or one million votes, gets a guaranteed seat. Let us
further assume that the first 50 parties all get one million votes.
Only 50 parties get a seat despite the availability of 55 seats.

122
105

Because of the operation of the two percent threshold, this


situation will repeat itself even if we increase the available party-
list seats to 60 seats and even if we increase the votes cast to 100
million. Thus, even if the maximum number of parties get two
percent of the votes for every party, it is always impossible for
the number of occupied party-list seats to exceed 50 seats as long
as the two percent threshold is present.

We therefore strike down the two percent threshold only in


relation to the distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941. The two
percent threshold presents an unwarranted obstacle to the full
implementation of Section 5(2), Article VI of the Constitution
and prevents the attainment of “the broadest possible
representation of party, sectoral or group interests in the House
of Representatives.”123[30]

In determining the allocation of seats for party-list


representatives under Section 11 of R.A. No. 7941, the following
procedure shall be observed:

- The parties, organizations, and coalitions shall be ranked


from the highest to the lowest based on the number of votes they
garnered during the elections.

- The parties, organizations, and coalitions receiving at least


two percent (2%) of the total votes cast for the party-list system
shall be entitled to one guaranteed seat each.

- Those garnering sufficient number of votes, according to


the ranking in paragraph 1, shall be entitled to additional seats in
proportion to their total number of votes until all the additional
seats are allocated.

- Each party, organization, or coalition shall be entitled to


not more than three (3) seats.

In computing the additional seats, the guaranteed seats


shall no longer be included because they have already been
allocated, at one seat each, to every two-percenter. Thus, the
remaining available seats for allocation as “additional seats” are
the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence
of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.

In declaring the two percent threshold unconstitutional, we


do not limit our allocation of additional seats in Table 3 below to
the two-percenters. The percentage of votes garnered by each
party-list candidate is arrived at by dividing the number of votes
garnered by each party by 15,950,900, the total number of votes
cast for party-list candidates. There are two steps in the second
round of seat allocation. First, the percentage is multiplied by the
remaining available seats, 38, which is the difference between
123
106

the 55 maximum seats reserved under the Party-List System and


the 17 guaranteed seats of the two-percenters. The whole integer
of the product of the percentage and of the remaining available
seats corresponds to a party’s share in the remaining available
seats. Second, we assign one party-list seat to each of the parties
next in rank until all available seats are completely distributed.
We distributed all of the remaining 38 seats in the second round
of seat allocation. Finally, we apply the three-seat cap to
determine the number of seats each qualified party-list candidate
is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Votes Guaranteed Additional (B) plus


Applying
Garnered Seat Seats (C), in
the three
over whole
seat cap
Total integers
Votes for
Votes
Rank Party Party List,
Garnered
in %
(First (Second
Round) Round)
(E)
(A) (B) (C) (D)
1 BUHAY 1,169,234 7.33% 1 2.79 3 N.A.
2 BAYAN 979,039 6.14% 1 2.33 3 N.A.
MUNA
3 CIBAC 755,686 4.74% 1 1.80 2 N.A.
4 GABRIELA 621,171 3.89% 1 1.48 2 N.A.
5 APEC 619,657 3.88% 1 1.48 2 N.A.
6 A Teacher 490,379 3.07% 1 1.17 2 N.A.
7 AKBAYAN 466,112 2.92% 1 1.11 2 N.A.
8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.
9124[31] COOP- 409,883 2.57% 1 1 2 N.A.
NATCCO
10 BUTIL 409,160 2.57% 1 1 2 N.A.
11 BATAS 385,810 2.42% 1 1 2 N.A.
12 ARC 374,288 2.35% 1 1 2 N.A.
13 ANAKPAWIS 370,261 2.32% 1 1 2 N.A.
14 ABONO 339,990 2.13% 1 1 2 N.A.
15 AMIN 338,185 2.12% 1 1 2 N.A.
16 AGAP 328,724 2.06% 1 1 2 N.A.
17 AN WARAY 321,503 2.02% 1 1 2 N.A.
18 YACAP 310,889 1.95% 0 1 1 N.A.
19 FPJPM 300,923 1.89% 0 1 1 N.A.
20 UNI-MAD 245,382 1.54% 0 1 1 N.A.
21 ABS 235,086 1.47% 0 1 1 N.A.
22 KAKUSA 228,999 1.44% 0 1 1 N.A.
23 KABATAAN 228,637 1.43% 0 1 1 N.A.
124
107

24 ABA-AKO 218,818 1.37% 0 1 1 N.A.


25 ALIF 217,822 1.37% 0 1 1 N.A.
26 SENIOR 213,058 1.34% 0 1 1 N.A.
CITIZENS
27 AT 197,872 1.24% 0 1 1 N.A.
28 VFP 196,266 1.23% 0 1 1 N.A.
29 ANAD 188,521 1.18% 0 1 1 N.A.
30 BANAT 177,028 1.11% 0 1 1 N.A.
31 ANG 170,531 1.07% 0 1 1 N.A.
KASANGGA
32 BANTAY 169,801 1.06% 0 1 1 N.A.
33 ABAKADA 166,747 1.05% 0 1 1 N.A.
34 1-UTAK 164,980 1.03% 0 1 1 N.A.
35 TUCP 162,647 1.02% 0 1 1 N.A.
36 COCOFED 155,920 0.98% 0 1 1 N.A.
Total 17 55

Applying the procedure of seat allocation as illustrated in


Table 3 above, there are 55 party-list representatives from the 36
winning party-list organizations. All 55 available party-list seats
are filled. The additional seats allocated to the parties with
sufficient number of votes for one whole seat, in no case to
exceed a total of three seats for each party, are shown in column
(D).

Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party


system that allowed all political parties to participate in the
party-list elections. The deliberations of the Constitutional
Commission clearly bear this out, thus:

MR. MONSOD. Madam President, I just want


to say that we suggested or proposed the party list
system because we wanted to open up the political
system to a pluralistic society through a multiparty
system. x x x We are for opening up the system,
and we would like very much for the sectors to be
there. That is why one of the ways to do that is to
put a ceiling on the number of representatives
from any single party that can sit within the 50
allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the


candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify
for example Christian Democrats and Social
Democrats as political parties? Can they run under
the party list concept or must they be under the
108

district legislation side of it only?

MR. VILLACORTA. In reply to that query, I


think these parties that the Commissioner mentioned
can field candidates for the Senate as well as for the
House of Representatives. Likewise, they can also
field sectoral candidates for the 20 percent or 30
percent, whichever is adopted, of the seats that we
are allocating under the party list system.

MR. MONSOD. In other words, the Christian


Democrats can field district candidates and can also
participate in the party list system?

MR. VILLACORTA. Why not? When they


come to the party list system, they will be fielding
only sectoral candidates.

MR. MONSOD. May I be clarified on that?


Can UNIDO participate in the party list system?

MR. VILLACORTA. Yes, why not? For as


long as they field candidates who come from the
different marginalized sectors that we shall
designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada


wants to run under BAYAN group and says that he
represents the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada


would not qualify.

MR. MONSOD. But UNIDO can field


candidates under the party list system and say Juan
dela Cruz is a farmer. Who would pass on whether
he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod,


gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not
prohibited to participate in the party list election
if they can prove that they are also organized
along sectoral lines.

MR. MONSOD. What the Commissioner is


saying is that all political parties can participate
because it is precisely the contention of political
parties that they represent the broad base of citizens
and that all sectors are represented in them. Would
the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag


pinayagan mo ang UNIDO na isang political party, it
will dominate the party list at mawawalang saysay
109

din yung sector. Lalamunin mismo ng political


parties ang party list system. Gusto ko lamang
bigyan ng diin ang “reserve.” Hindi ito reserve seat
sa marginalized sectors. Kung titingnan natin itong
198 seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi


anybody can run there. But my question to
Commissioner Villacorta and probably also to
Commissioner Tadeo is that under this system, would
UNIDO be banned from running under the party list
system?

MR. VILLACORTA. No, as I said, UNIDO


may field sectoral candidates. On that condition
alone, UNIDO may be allowed to register for the
party list system.

MR. MONSOD. May I inquire from


Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang


UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will


also create the stimulus for political parties and mass
organizations to seek common ground. For example,
we have the PDP-Laban and the UNIDO. I see no
reason why they should not be able to make common
goals with mass organizations so that the very
leadership of these parties can be transformed
through the participation of mass organizations. And
if this is true of the administration parties, this will be
true of others like the Partido ng Bayan which is now
being formed. There is no question that they will be
attractive to many mass organizations. In the
opposition parties to which we belong, there will be a
stimulus for us to contact mass organizations so that
with their participation, the policies of such parties
can be radically transformed because this amendment
will create conditions that will challenge both the
mass organizations and the political parties to come
together. And the party list system is certainly
available, although it is open to all the parties. It is
understood that the parties will enter in the roll of the
COMELEC the names of representatives of mass
organizations affiliated with them. So that we may,
in time, develop this excellent system that they have
in Europe where labor organizations and
cooperatives, for example, distribute themselves
either in the Social Democratic Party and the
110

Christian Democratic Party in Germany, and their


very presence there has a transforming effect upon
the philosophies and the leadership of those parties.

It is also a fact well known to all that in the


United States, the AFL-CIO always vote with the
Democratic Party. But the businessmen, most of
them, always vote with the Republican Party,
meaning that there is no reason at all why political
parties and mass organizations should not combine,
reenforce, influence and interact with each other so
that the very objectives that we set in this
Constitution for sectoral representation are achieved
in a wider, more lasting, and more institutionalized
way. Therefore, I support this [Monsod-Villacorta]
amendment. It installs sectoral representation as a
constitutional gift, but at the same time, it challenges
the sector to rise to the majesty of being elected
representatives later on through a party list system;
and even beyond that, to become actual political
parties capable of contesting political power in the
wider constitutional arena for major political parties.

x x x 125[32] (Emphasis supplied)


R.A. No. 7941 provided the details for the concepts put
forward by the Constitutional Commission. Section 3 of R.A.
No. 7941 reads:

Definition of Terms. (a) The party-list system is


a mechanism of proportional representation in the
election of representatives to the House of
Representatives from national, regional and sectoral
parties or organizations or coalitions thereof
registered with the Commission on Elections
(COMELEC). Component parties or organizations of
a coalition may participate independently provided
the coalition of which they form part does not
participate in the party-list system.

(b) A party means either a political party or a


sectoral party or a coalition of parties.

(c) A political party refers to an organized


group of citizens advocating an ideology or platform,
principles and policies for the general conduct of
government and which, as the most immediate means
of securing their adoption, regularly nominates and
supports certain of its leaders and members as
candidates for public office.

It is a national party when its constituency is


spread over the geographical territory of at least a
majority of the regions. It is a regional party when its
constituency is spread over the geographical territory
125
111

of at least a majority of the cities and provinces


comprising the region.

(d) A sectoral party refers to an organized


group of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal
advocacy pertains to the special interests and
concerns of their sector,

(e) A sectoral organization refers to a group of


citizens or a coalition of groups of citizens who share
similar physical attributes or characteristics,
employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly


registered national, regional, sectoral parties or
organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to


prevent any party from dominating the party-list elections.

Neither the Constitution nor R.A. No. 7941 prohibits major


political parties from participating in the party-list system. On
the contrary, the framers of the Constitution clearly intended the
major political parties to participate in party-list elections
through their sectoral wings. In fact, the members of the
Constitutional Commission voted down, 19-22, any permanent
sectoral seats, and in the alternative the reservation of the party-
list system to the sectoral groups. 126[33] In defining a “party” that
participates in party-list elections as either “a political party or a
sectoral party,” R.A. No. 7941 also clearly intended that major
political parties will participate in the party-list elections.
Excluding the major political parties in party-list elections is
manifestly against the Constitution, the intent of the
Constitutional Commission, and R.A. No. 7941. This Court
cannot engage in socio-political engineering and judicially
legislate the exclusion of major political parties from the party-
list elections in patent violation of the Constitution and the law.

Read together, R.A. No. 7941 and the deliberations of the


Constitutional Commission state that major political parties are
allowed to establish, or form coalitions with, sectoral
organizations for electoral or political purposes. There should
not be a problem if, for example, the Liberal Party participates in
the party-list election through the Kabataang Liberal ng Pilipinas
(KALIPI), its sectoral youth wing. The other major political
parties can thus organize, or affiliate with, their chosen sector or
sectors. To further illustrate, the Nacionalista Party can establish
a fisherfolk wing to participate in the party-list election, and this
fisherfolk wing can field its fisherfolk nominees. Kabalikat ng
Malayang Pilipino (KAMPI) can do the same for the urban poor.

The qualifications of party-list nominees are prescribed in


Section 9 of R.A. No. 7941:
126
112

Qualifications of Party-List Nominees. — No


person shall be nominated as party-list representative
unless he is a natural born citizen of the Philippines,
a registered voter, a resident of the Philippines for a
period of not less than one (1) year immediately
preceding the day of the elections, able to read and
write, bona fide member of the party or organization
which he seeks to represent for at least ninety (90)
days preceding the day of the election, and is at least
twenty-five (25) years of age on the day of the
election.

In case of a nominee of the youth sector, he


must at least be twenty-five (25) but not more than
thirty (30) years of age on the day of the election.
Any youth sectoral representative who attains the age
of thirty (30) during his term shall be allowed to
continue until the expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the


party-list organization’s nominee “wallow in poverty, destitution
and infirmity”127[34] as there is no financial status required in the
law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and
underrepresented sectors,128[35] that is, if the nominee represents
the fisherfolk, he or she must be a fisherfolk, or if the nominee
represents the senior citizens, he or she must be a senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the


filling-up of the entire 20% allocation of party-list
representatives found in the Constitution. The Constitution, in
paragraph 1, Section 5 of Article VI, left the determination of the
number of the members of the House of Representatives to
Congress: “The House of Representatives shall be composed of
not more than two hundred and fifty members, unless otherwise
fixed by law, x x x.” The 20% allocation of party-list
representatives is merely a ceiling; party-list representatives
cannot be more than 20% of the members of the House of
Representatives. However, we cannot allow the continued
existence of a provision in the law which will systematically
prevent the constitutionally allocated 20% party-list
representatives from being filled. The three-seat cap, as a
limitation to the number of seats that a qualified party-list
organization may occupy, remains a valid statutory device that
prevents any party from dominating the party-list elections.
Seats for party-list representatives shall thus be allocated in
accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue


the ruling in Veterans disallowing major political parties from
participating in the party-list elections, directly or indirectly.
Those who voted to continue disallowing major political parties

127
128
113

from the party-list elections joined Chief Justice Reynato S.


Puno in his separate opinion. On the formula to allocate party-
list seats, the Court is unanimous in concurring with this
ponencia.

WHEREFORE, we PARTIALLY GRANT the petition.


We SET ASIDE the Resolution of the COMELEC dated 3
August 2007 in NBC No. 07-041 (PL) as well as the Resolution
dated 9 July 2007 in NBC No. 07-60. We declare
unconstitutional the two percent threshold in the distribution of
additional party-list seats. The allocation of additional seats
under the Party-List System shall be in accordance with the
procedure used in Table 3 of this Decision. Major political
parties are disallowed from participating in party-list elections.
This Decision is immediately executory. No pronouncement as
to costs.

POWER OF THE COMELEC TO


RESOLVE LEADERSHIP DISPUTES OF
PARTY-LIST

DR. HANS CHRISTIAN M. SENERIS VS.


COMELEC, G.R. No. 178678, April 16, 2009

VELASCO, JR., J.:

The Undisputed Facts

In 1999, private respondent Robles was elected president and


chairperson of BUHAY, a party-list group duly registered with
COMELEC.129[3] The constitution of BUHAY provides for a three-year
term for all its party officers, without re-election. 130[4] BUHAY
participated in the 2001 and 2004 elections, with Robles as its
president. All the required Manifestations of Desire to Participate in
the said electoral exercises, including the Certificates of Nomination
of representatives, carried the signature of Robles as president of
BUHAY.131[5] On January 26, 2007, in connection with the May 2007
elections, BUHAY again filed a Manifestation of its Desire to
Participate in the Party-List System of Representation. 132[6] As in the
past two elections, the manifestation to participate bore the signature
of Robles as BUHAY president.

On March 29, 2007, Robles signed and filed a Certificate of


Nomination of BUHAY’s nominees for the 2007 elections containing
the following names: (i) Rene M. Velarde, (ii) Ma. Carissa
Coscolluela, (iii) William Irwin C. Tieng, (iv) Melchor R. Monsod,
and (v) Teresita B. Villarama. Earlier, however, or on March 27, 2007,
petitioner Hans Christian Señeres, holding himself up as acting
president and secretary-general of BUHAY, also filed a Certificate of
Nomination with the COMELEC, nominating: (i) himself, (ii)

129
130
131
132
114

Hermenegildo C. Dumlao, (iii) Antonio R. Bautista, (iv) Victor Pablo


C. Trinidad, and (v) Eduardo C. Solangon, Jr.133[7]

Consequently, on April 17, 2007, Señeres filed with the


COMELEC a Petition to Deny Due Course to Certificates of
Nomination.134[8] In it, petitioner Señeres alleged that he was the acting
president and secretary-general of BUHAY, having assumed that
position since August 17, 2004 when Robles vacated the position.
Pushing the point, Señeres would claim that the nominations made by
Robles were, for lack of authority, null and void owing to the
expiration of the latter’s term as party president. Furthermore, Señeres
asserted that Robles was, under the Constitution, 135[9] disqualified from
being an officer of any political party, the latter being the Acting
Administrator of the Light Railway Transport Authority (LRTA), a
government-controlled corporation. Robles, so Señeres would charge,
was into a partisan political activity which civil service members, like
the former, were enjoined from engaging in.

On May 10, 2007, the National Council of BUHAY adopted a


resolution136[10] expelling Señeres as party member for his act of
submitting a Certificate of Nomination for the party. The resolution
reads in part:

WHEREAS, Hans Christian M. Señeres, without authority


from the National Council, caused the filing of his
Certificate of Nomination with the Comelec last 27 March
2007.

WHEREAS, Hans Christian M. Señeres, again without


authority from the National Council, listed in his
Certificate of Nomination names of persons who are not
even members of the Buhay party.

WHEREAS, Hans Christian M. Señeres, knowing fully


well that the National Council had previously approved the
following as its official nominees, to wit x x x to the 2007
Party-List elections; and that Mr. Melquiades A. Robles
was authorized to sign and submit the party’s Certificate of
Nomination with the Comelec; and, with evident
premeditation to put the party to public ridicule and with
scheming intention to create confusion, still proceeded
with the filing of his unauthorized certificate of nomination
even nomination persons who are not members of Buhay.

WHEREAS, Hans Christian M. Señeres, in view of the


foregoing, underwent Party Discipline process pursuant to
Article VII of the Constitution and By-Laws of the Party.

xxxx

WHEREAS, after a careful examination of the [evidence]


on his case, the National Council found Hans Christian M.
133
134
135
136
115

Señeres to have committed acts in violation of the


constitution and by-laws of the party and decided to expel
him as a member of the party.

NOW THEREFORE, be it RESOLVED as it is hereby


RESOLVED that the National Council has decided to
expel Hans M. Señeres as a member of the party effective
close of business hour of 10 May 2007.

BE IT RESOLVED FURTHER, that all rights and


privileges pertaining to the membership of Hans M.
Señeres with the party are consequently cancelled.

BE IT RESOLVED FURTHER, that the President and


Chairman of the National Council of Buhay, Mr.
Melquiades A. Robles, is hereby authorized to cause the
necessary filing of whatever documents/letters before the
House of Representatives and/or to any other
entity/agency/person to remove/drop Mr. Señeres’ name in
the roll of members in the said lower house. 137[11]

Later developments saw Robles filing a petition praying for the


recognition of Jose D. Villanueva as the new representative of
BUHAY in the House of Representatives for the remaining term until
June 30, 2007.138[12] Attached to the petition was a copy of the
expelling resolution adverted to. Additionally, Robles also filed on the
same day an “Urgent Motion to Declare Null and Void the Certificate
of Nomination and Certificates of Acceptance filed by Hans Christian
M. Señeres, Hermenegildo Dumlao, Antonio R. Bautista, Victor Pablo
Trinidad and Eduardo Solangon, Jr.”139[13]

On July 9 and July 18, 2007, respectively, the COMELEC issued


two resolutions proclaiming BUHAY as a winning party-list
organization for the May 2007 elections entitled to three (3) House
seats.140[14]

This was followed by the issuance on July 19, 2007 by the en


banc COMELEC of Resolution E.M. No. 07-043 recognizing and
declaring Robles as the president of BUHAY and, as such, was the one
“duly authorized to sign documents in behalf of the party particularly
the Manifestation to participate in the party-list system of
representation and the Certification of Nomination of its
nominees.”141[15] Explaining its action, COMELEC stated that since no
party election was held to replace Robles as party president, then he
was holding the position in a hold-over capacity. 142[16]

The COMELEC disposed of the partisan political activity issue


with the terse observation that Señeres’ arguments on the applicability
to Robles of the prohibition on partisan political activity were

137
138
139
140
141
142
116

unconvincing.143[17] The dispositive portion of the COMELEC


Resolution reads:

WHEREFORE, premises considered, this


Commission (En Banc) hereby recognizes Melquiades A.
Robles as the duly authorized representative of Buhay
Hayaan Yumabong (Buhay) and to act for and in its behalf
pursuant to its Constitution and By-Laws.

SO ORDERED.144[18]

On July 20, 2007, the first three (3) listed nominees of BUHAY
for the May 2007 elections, as per the Certificate of Nomination filed
by Robles, namely Rene M. Velarde, Ma. Carissa Coscolluela, and
William Irwin C. Tieng, took their oaths of office as BUHAY party-list
representatives in the current Congress. 145[19] Accordingly, on
September 3, 2007, the COMELEC, sitting as National Board of
Canvassers, issued a Certificate of Proclamation to BUHAY and its
nominees as representatives to the House of Representatives. 146[20]

Aggrieved, petitioner filed the instant petition.

The Issue

Whether or not the COMELEC acted without or in excess


of jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction in issuing its challenged
Resolution dated June 19, 2007, which declared respondent
Robles as the duly authorized representative of BUHAY,
and there is no appeal or any other plain, speedy or
adequate remedy in the ordinary course of law except the
instant petition.

HELD:

The petition should be dismissed for lack of merit.

Petition for Certiorari Is an Improper Remedy

A crucial matter in this recourse is whether the petition for


certiorari filed by Señeres is the proper remedy.

A special civil action for certiorari may be availed of when the


tribunal, board, or officer exercising judicial or quasi-judicial
functions has acted without or in excess of jurisdiction and there is no
appeal or any plain, speedy, and adequate remedy in the ordinary
course of law for the purpose of annulling the proceeding. 147[21] It is
the “proper remedy to question any final order, ruling and decision of
the COMELEC rendered in the exercise of its adjudicatory or quasi-
judicial powers.”148[22] For certiorari to prosper, however, there must be
a showing that the COMELEC acted with grave abuse of discretion
143
144
145
146
147
148
117

and that there is no appeal or any plain, speedy and adequate remedy
in the ordinary course of law.

In the present case, a plain, speedy and adequate remedy in the


ordinary course of law was available to Señeres. The 1987
Constitution cannot be more explicit in this regard. Its Article VI,
Section 17 states:

Sec. 17. The Senate and the House of


Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the
election, returns and qualifications of their respective
Members. x x x

This constitutional provision is reiterated in Rule 14 of the 1991


Revised Rules of the Electoral Tribunal of the House of
Representatives, to wit:
RULE 14. Jurisdiction.—The Tribunal shall be the
sole judge of all contests relating to the election, returns
and qualifications of the Members of the House of
Representatives.

In Lazatin v. House Electoral Tribunal, the Court elucidated on


the import of the word “sole” in Art. VI, Sec. 17 of the Constitution,
thus:

The use of the word ‘sole’ emphasizes the exclusive


character of the jurisdiction conferred. The exercise of the
power by the Electoral Commission under the 1935
Constitution has been described as ‘intended to be as
complete and unimpaired as if it had remained originally in
the legislature.’ Earlier, this grant of power to the
legislature was characterized by Justice Malcolm as ‘full,
clear and complete.’ 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. The same may be said with regard
to the jurisdiction of the Electoral Tribunals under the 1987
Constitution.”149[23]

Then came Rasul v. COMELEC and Aquino-Oreta, in which the


Court again stressed that “the word ‘sole’ in Sec. 17, Art. VI of the
1987 Constitution and Sec. 250 of the Omnibus Election Code
underscore the exclusivity of the Tribunal’s jurisdiction over election
contests relating to its members.”150[24]

The House of Representatives Electoral Tribunal’s (HRET’s)


sole and exclusive jurisdiction over contests relative to the election,
returns and qualifications of the members of the House of
Representatives “begins only after a candidate has become a member
of the House of Representatives.” 151[25] Thus, once a winning candidate
has been proclaimed, taken his oath, and assumed office as a Member
149
150
151
118

of the House of Representatives, COMELEC’s jurisdiction over


elections relating to the election, returns, and qualifications ends, and
the HRET’s own jurisdiction begins.152[26]

It is undisputed that the COMELEC, sitting as National Board of


Canvassers, proclaimed BUHAY as a winning party-list organization
for the May 14, 2007 elections, entitled to three (3) seats in the House
of Representatives.153[27] The proclamation came in the form of two
Resolutions dated July 9, 2007 and July 18, 2007, 154[28] respectively.
Said resolutions are official proclamations of COMELEC considering
it is BUHAY that ran for election as party-list organization and not the
BUHAY nominees.

The following day, on July 19, 2007, the COMELEC issued the
assailed resolution declaring “Melquiades A. Robles as the duly
authorized representative of Buhay Hayaan Yumabong (Buhay) and to
act in its behalf pursuant to its Constitution and By-Laws.”
COMELEC affirmed that his Certificate of Nomination was a valid
one as it ruled that “Robles is the President of Buhay Party-List and
therefore duly authorized to sign documents in behalf of the party
particularly the Manifestation to participate in the pary-list system of
representation and the Certificate of Nomination of its
nominees.”155[29] The September 3, 2007 proclamation merely
confirmed the challenged July 19, 2007 Resolution. The July 19, 2007
Resolution coupled with the July 9, 2007 and July 18, 2007
proclamations vested the Robles nominees the right to represent
BUHAY as its sectoral representatives.

Consequently, the first three (3) nominees in the Certificate of


Nomination submitted by Robles then took their oaths of office before
the Chief Justice on July 20, 2007 and have since then exercised their
duties and functions as BUHAY Party-List representatives in the
current Congress.

Without a doubt, at the time Señeres filed this petition before this
Court on July 23, 2007, the right of the nominees as party-list
representatives had been recognized and declared in the July 19, 2007
Resolution and the nominees had taken their oath and already assumed
their offices in the House of Representatives. As such, the proper
recourse would have been to file a petition for quo warranto before the
HRET within ten (10) days from receipt of the July 19, 2007
Resolution and not a petition for certiorari before this Court. 156[30]

Since Señeres failed to file a petition for quo warranto before the
HRET within 10 days from receipt of the July 19, 2007 Resolution
declaring the validity of Robles’ Certificate of Nomination, said
Resolution of the COMELEC has already become final and executory.
Thus, this petition has now become moot and can be dismissed
outright. And even if we entertain the instant special civil action, still,
petitioner’s postulations are bereft of merit.

152
153
154
155
156
119

Act of Nominating Is Not Partisan Political Activity

Petitioner Señeres contends that Robles, acting as BUHAY


President and nominating officer, as well as being the Administrator of
the LRTA, was engaging in electioneering or partisan political
campaign. He bases his argument on the Constitution, which prohibits
any officer or employee in the civil service from engaging, directly or
indirectly, in any electioneering or partisan political campaign. 157[31] He
also cites Sec. 4 of the Civil Service Law which provides that “no
officer or employee in the Civil Service x x x shall engage in any
partisan political activity.” Lastly, he mentions Sec. 26(i) of the
Omnibus Election Code which makes it “an election offense for any
officer in the civil service to directly or indirectly x x x engage in any
partisan political activity.”

This contention lacks basis and is far from being persuasive. The
terms “electioneering” and “partisan political activity” have well-
established meanings in the Omnibus Election Code, to wit:

Section 79. x x x
(b) The term ‘election campaign’ or ‘partisan
political activity’ refers to an act designed to promote the
election or defeat of a particular candidate or candidates to
a public office which shall include:

(1) Forming organizations, associations, clubs,


committees, or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or
against a candidate;
(2) Holding political caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for
the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or


commentaries, or holding interviews for or against the
election of any candidate for public office;

(4) Publishing or distributing campaign literature or


materials designed to support or oppose the election of any
candidate; or

(5) Directly or indirectly soliciting votes, pledges or


support for or against a candidate.

The foregoing enumerated acts if performed for


the purpose of enhancing the chances of aspirants for
nominations for candidacy to a public office by a
political party, agreement, or coalition of parties shall
not be considered as election campaign or partisan
election activity.

Public expression of opinions or discussions of


probable issues in a forthcoming election or on attributes
157
120

of or criticisms against probable candidates proposed to be


nominated in a forth coming political party convention
shall not be construed as part of any election campaign or
partisan political activity contemplated under this Article.
(Emphasis supplied.)

Guided by the above perspective, Robles’ act of submitting a


nomination list for BUHAY cannot, without more, be considered
electioneering or partisan political activity within the context of the
Election Code. First of all, petitioner did not aver that Robles
committed any of the five (5) acts defined in the aforequoted Sec.
79(b) of the Code, let alone adduce proof to show the fact of
commission.

Second, even if Robles performed any of the previously


mentioned acts, Sec. 79 of the Code is nonetheless unequivocal that if
the same is done only for the “purpose of enhancing the chances of
aspirants for nominations for candidacy to a public office by a political
party, agreement, or coalition of parties,” it is not considered as a
prohibited electioneering or partisan election activity.
From this provision, one can conclude that as long as the acts
embraced under Sec. 79 pertain to or are in connection with the
nomination of a candidate by a party or organization, then such are
treated as internal matters and cannot be considered as electioneering
or partisan political activity. The twin acts of signing and filing a
Certificate of Nomination are purely internal processes of the party or
organization and are not designed to enable or ensure the victory of the
candidate in the elections. The act of Robles of submitting the
certificate nominating Velarde and others was merely in compliance
with the COMELEC requirements for nomination of party-list
representatives and, hence, cannot be treated as electioneering or
partisan political activity proscribed under by Sec. 2(4) of Art. IX(B)
of the Constitution for civil servants.

Moreover, despite the fact that Robles is a nominating officer, as


well as Chief of the LRTA, petitioner was unable to cite any legal
provision that prohibits his concurrent positions of LRTA President
and acting president of a party-list organization or that bars him from
nominating.

Last but not least, the nomination of Velarde, Coscolluela, Tieng,


Monsod, and Villarama to the 2007 party-list elections was, in the final
analysis, an act of the National Council of BUHAY. Robles’ role in
the nominating process was limited to signing, on behalf of BUHAY,
and submitting the party’s Certificate of Nomination to the
COMELEC.158[32] The act of nominating BUHAY’s representatives
was veritably a direct and official act of the National Council of
BUHAY and not Robles’. Be that as it may, it is irrelevant who among
BUHAY’s officials signs the Certificate of Nomination, as long as the
signatory was so authorized by BUHAY. The alleged disqualification
of Robles as nominating officer is indeed a non-issue and does not
affect the act of the National Council of nominating Velarde and
others. Hence, the Certificate of Nomination, albeit signed by Robles,
is still the product of a valid and legal act of the National Council of
158
121

BUHAY. Robles’ connection with LRTA could not really be


considered as a factor invalidating the nomination process.

“Hold-Over” Principle Applies

Petitioner Señeres further maintains that at the time the


Certificate of Nomination was submitted, Robles’ term as President of
BUHAY had already expired, thus effectively nullifying the Certificate
of Nomination and the nomination process.

Again, petitioner’s contention is untenable. As a general rule,


officers and directors of a corporation hold over after the expiration of
their terms until such time as their successors are elected or
appointed.159[33] Sec. 23 of the Corporation Code contains a provision
to this effect, thus:
Section 23. The board of directors or trustees.—Unless
otherwise provided in this Code, the corporate powers of
all corporations formed under this Code shall be exercised,
all business conducted and all property of such
corporations controlled and held by the board of directors
or trustees to be elected from among the holders of stocks,
or where there is no stock, from among the members of the
corporation, who shall hold office for one (1) year until
their successors are elected and qualified.

The holdover doctrine has, to be sure, a purpose which is at


once legal as it is practical. It accords validity to what would otherwise
be deemed as dubious corporate acts and gives continuity to a
corporate enterprise in its relation to outsiders. 160[34] This is the
analogical situation obtaining in the present case. The voting members
of BUHAY duly elected Robles as party President in October 1999.
And although his regular term as such President expired in October
2002,161[35] no election was held to replace him and the other original
set of officers.162[36] Further, the constitution and by-laws of BUHAY
do not expressly or impliedly prohibit a hold-over situation. As such,
since no successor was ever elected or qualified, Robles remained the
President of BUHAY in a “hold-over” capacity.

Authorities are almost unanimous that one who continues with


the discharge of the functions of an office after the expiration of his or
her legal term––no successor having, in the meantime, been appointed
or chosen––is commonly regarded as a de facto officer, even where no
provision is made by law for his holding over and there is nothing to
indicate the contrary.163[37] By fiction of law, the acts of such de facto
officer are considered valid and effective. 164[38]

So it must be for the acts of Robles while serving as a hold-over


Buhay President. Among these acts was the submission of the
nomination certificate for the May 14, 2007 elections.

159
160
161
162
163
164
122

As a final consideration, it bears to state that petitioner is


estopped from questioning the authority of Robles as President of
BUHAY. As a principle of equity rooted on natural justice, the bar of
estoppel precludes a person from going back on his own acts and
representations to the prejudice of another whom he has led to rely
upon them.165[39]

Again, it cannot be denied that Robles, as BUHAY President,


signed all manifestations of the party’s desire to participate in the 2001
and 2004 elections, as well as all Certificates of Nomination. 166[40] In
fact, the corresponding certificate for the 2004 elections included
petitioner as one of the nominees. During this time, Robles’ term as
President had already expired, and yet, petitioner never questioned
Robles’ authority to sign the Certificate of Nomination. As a matter of
fact, petitioner even benefited from the nomination, because he earned
a seat in the House of Representatives as a result of the party’s
success.167[41] Clearly, petitioner cannot now be heard to argue that
Robles’ term as president of BUHAY has long since expired, and that
his act of submitting the Certificate of Nomination and the
manifestation to participate in the 2007 elections is null and void. He
is already precluded from doing so.

WHEREFORE, the petition is DISMISSED. Resolution E.M.


No. 07-043 of the COMELEC dated July 19, 2007 is AFFIRMED.
No costs.

Section 6. No person shall be a member of


the House of Representatives unless he is a
natural born citizen of the Philippines and,
on the day of the election, is at least 25 years
of age, able to read and write, and except the
party-list representatives, a registered voter
in the district in which he shall be elected,
and a resident thereof for a period of not less
than 1 year immediately preceding the day
of the election.

Read:

Residence requirement for members of the


House of Representatives.

REP. DANILO RAMON FERNANDEZ VS. HOUSE OF


REPRESENTATIVES ELECTORAL TRIBUNAL and JESUS
VICENTE, G.R. No. 187478, December 21, 2009

Petitioner filed for candidacy as Representative of the First


Legislative District of the Province of Laguna in the May 14, 2007
elections. In his Certificate of Candidacy (COC), he indicated his
complete/exact address as “No. 13 Maharlika St., Villa Toledo
Subdivision, Barangay Balibago, Sta. Rosa City, Laguna” (alleged
Sta. Rosa residence).

165
166
167
123

Private respondent Jesus L. Vicente (private respondent) filed


a “Petition to Deny Due Course to and/or Cancel Certificate of
Candidacy and Petition for Disqualification” before the Office of
the Provincial Election Supervisor of Laguna. This was forwarded
to the Commission on Elections (COMELEC) and docketed therein
as SPA No. 07-046 (PES). Private respondent sought the
cancellation of petitioner’s COC and the latter’s disqualification as
a candidate on the ground of an alleged material misrepresentation
in his COC regarding his place of residence, because during past
elections, he had declared Pagsanjan, Laguna as his address, and
Pagsanjan was located in the Fourth Legislative District of the
Province of Laguna. Private respondent likewise claimed that
petitioner maintained another house in Cabuyao, Laguna, which
was also outside the First District. The COMELEC (First Division)
dismissed said petition for lack of merit.

Petitioner was proclaimed as the duly elected Representative


of the First District of Laguna on June 27, 2007, having garnered a
total of 95,927 votes, winning by a margin of 35,000 votes over
the nearest candidate.

On July 5, 2007, private respondent filed a petition for quo


warranto before the HRET, docketed as HRET CASE No. 07-034,
praying that petitioner be declared ineligible to hold office as a
Member of the House of Representatives representing the First
Legislative District of the Province of Laguna, and that petitioner’s
election and proclamation be annulled and declared null and void.

Private respondent’s main ground for the quo warranto


petition was that petitioner lacked the required one-year residency
requirement provided under Article VI, Section 6 of the 1987
Constitution. In support of his petition, private respondent argued
that petitioner falsely declared under oath: (1) his alleged Sta. Rosa
residence; (2) the period of his residence in the legislative district
before May 14, 2007, which he indicated as one year and two
months; and (3) his eligibility for the office where he was seeking to
be elected. Private respondent presented the testimony of a certain
Atty. Noel T. Tiampong, who stated that petitioner is not from the
alleged Sta. Rosa residence but a resident of Barangay Pulo,
Cabuyao, Laguna; as well as the respective testimonies of
Barangay Balibago Health Workers who attested that they rarely, if
ever, saw respondent in the leased premises at the alleged Sta. Rosa
residence; and other witnesses who testified that contrary to the
misrepresentations of petitioner, he is not a resident of the alleged
Sta. Rosa residence. A witness testified that petitioner attempted to
coerce some of the other witnesses to recant their declarations and
change their affidavits. Finally, private respondent presented as
witness the lawyer who notarized the Contract of Lease dated
March 8, 2007 between petitioner as lessee and Bienvenido G.
Asuncion as lessor.

Petitioner, as respondent in HRET Case No. 07-034,


presented as his witnesses residents of Villa de Toledo who testified
that they had seen respondent and his family residing in their
locality, as well as Bienvenido G. Asuncion who testified that
petitioner is the lessee in Unit No. 13 Block 1 Lot I, Maharlika St.,
Villa de Toledo Subdivision, Brgy. Balibago, Sta. Rosa City,
Laguna. Petitioner likewise presented Mr. Joseph Wade, President
of South Point Homeowner’s Association of Cabuyao, Laguna, as
well as Engr. Larry E. Castro (Castro), who testified that since
February 2006 up to the present, petitioner had no longer been
residing in his property located at Block 28, Lot 18, South Point
Subdivision, Cabuyao, Laguna, and that said property was being
offered for sale and temporarily being used by Castro, together with
124

some security men of petitioner and employees of Rafters Music


Lounge owned by petitioner. Petitioner testified that he had been a
resident of Sta. Rosa even before February 2006; that he owned
property in another Sta. Rosa subdivision (Bel-Air); that he and his
wife had put up a business therein, the “RAFTERS” restaurant/ bar;
and that he had prior residence in another place also at Sta. Rosa as
early as 2001.

Since the HRET ruled in favor of private respondent, this


petition was filed before us.

In petitioner’s assignment of errors, he alleges that the HRET


grievously erred and committed grave abuse of discretion:

1. In not placing on the quo warranto petitioner Jesus L. Vicente the


burden of proving that then respondent (now petitioner) Fernandez
is not a qualified candidate for Representative of the First District of
the Province of Laguna;
2. When it disregarded the ruling of a co-equal tribunal in SPA No.
07-046;
3. When it added a property qualification to a Member of Congress;
4. When it determined that the petitioner failed to comply with the
one (1) year residency requirement based on the contract of lease;

On the first assignment of error, petitioner questions the


following pronouncement of the HRET in its decision:

In the case before us, petitioner has clearly asserted, and


respondent does not deny, that his domicile of origin is Pagsanjan in
the Fourth District of Laguna. Hence, the burden is now on
respondent to prove that he has abandoned his domicile of origin, or
since his birth, where he formerly ran for provincial Board Member
of Laguna in 1998, for Vice-Governor of Laguna in 2001 and for
Governor of Laguna in 2004. In all his Certificates of Candidacy
when he ran for these positions, he indicated under oath that his
domicile or permanent residence was in Pagsanjan in the Fourth
District of Laguna, not in the First District where he later ran in the
last elections.

Petitioner avers that private respondent failed to establish his


claim and to adduce evidence sufficient to overcome petitioner’s
eligibility to be a candidate for Representative of the First District
of Laguna.

On the second assignment of error, petitioner submits that the


HRET should have been “guided and/or cautioned” by the
COMELEC’s dispositions in SPA No. 07-046, wherein he was
adjudged as qualified to run for the position of Congressman of the
First District of Laguna by an agency tasked by law and the
Constitution to ascertain the qualifications of candidates before
election. Petitioner claims that the HRET should have respected the
findings of the COMELEC and should have discreetly denied the
petition.

On the third assignment of error, petitioner argues that under


Article V, Section 1, of the 1987 Constitution, any citizen of the
Philippines who is a qualified voter may likewise, if so qualified
under the appertaining law and the constitution, be able to run and
be voted for as a candidate for public office.

Petitioner alleges that in the questioned Decision, the HRET


added a new qualification requirement for candidates seeking
125

election to the position of Member of the House of Representatives,


and that is, they must be real property owners in the legislative
district where they seek election.

On the fourth assignment of error, petitioner addresses private


respondent’s arguments against the contract of lease that he
presented as part of the proof of his compliance with the residency
requirement. Petitioner asserts that the nomenclature used by
contracting parties to describe a contract does not determine its
nature, but the decisive factor is the intention of the parties to a
contract – as shown by their conduct, words, actions, and deeds –
prior to, during and after executing the agreement. Petitioner
claims that he has presented ample proof of his residency in terms
of evidence more numerous and bearing more weight and
credibility than those of private respondent. He proceeds to
highlight some of the evidence he offered in the quo warranto case
that allegedly prove that his transfer of residence and intention to
reside in Sta. Rosa were proven by his stay in Villa de Toledo, to
wit: (1) even earlier than 2006, he had purchased a house and lot in
Bel-Air Subdivision in Sta. Rosa which he rented out because he
was not yet staying there at that time; (2) he sent his children to
schools in Sta. Rosa as early as 2002; and (3) he and his wife
established a restaurant business there in 2003. Petitioner contends
that when he and his family moved to Sta. Rosa by initially renting
a townhouse in Villa de Toledo, it cannot be said that he did this
only in order to run for election in the First Legislative District.

As regards the alleged infirmities characterizing the execution


of the contract of lease and the renewal of said contract of lease,
petitioner contends that these are not material since the lessor,
Bienvenido Asuncion, affirmed his stay in his townhouse; the
neighbors and other barangay personalities confirmed his and his
family’s stay in their area; and petitioner has continued actual
residence in Sta. Rosa from early 2006 to the present. Petitioner
claims that all these prove that he had effectively changed his
residence and could therefore likewise transfer his voter’s
registration from Pagsanjan to Sta. Rosa under Sec. 12 of R.A. No.
8189. Petitioner also alleges that he had become qualified to seek
elective office in his new place of residence and registration as a
voter.

To further prove that he has made Sta. Rosa his domicile of


choice from early 2006 to the present, petitioner points out that he
and his wife had purchased a lot in the same area, Villa de Toledo,
on April 21, 2007, built a house thereon, and moved in said house
with their family.

Regarding the non-notarization of the contract of lease raised


by private respondent, petitioner avers that this “does not
necessarily nullify nor render the parties’ transaction void ab
initio.”

HELD:

The issues for determination are: (1) whether the HRET had
jurisdiction over the case; and (2) whether petitioner sufficiently
complied with the one-year residency requirement to be a Member
of the House of Representatives, as provided in the 1987
Constitution.

The first issue is procedural and involves the jurisdiction of


the HRET vis-à-vis that of the COMELEC in cases involving the
qualification of Members of the House of Representatives.
Petitioner suggests that the matters raised in HRET Case No. 07-
126

034 were already passed upon by the COMELEC in SPA No. 07-
046 (PES), thus the HRET should have dismissed the case for
forum-shopping.

We do not agree. The 1987 Constitution explicitly provides


under Article VI, Section 17 thereof that the 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. 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,
which is conferred upon the HRET and the SET after elections and
the proclamation of the winning candidates. A candidate who has
not been proclaimed and who has not taken his oath of office cannot
be said to be a member of the House of Representatives.

Thus, private respondent correctly pointed out that a petition


for quo warranto is within the exclusive jurisdiction of the HRET,
and cannot be considered forum shopping even if, as in this case,
the COMELEC had already passed upon in administrative or quasi-
judicial proceedings the issue of the qualification of the Member of
the House of Representatives while the latter was still a candidate.

Anent the second issue pertaining to petitioner’s compliance


with the residency requirement for Members of the House of
Representatives, after studying the evidence submitted by the
parties, we find for petitioner, taking into account our ruling in
Frivaldo v. COMELEC, which reads in part:

This Court has time and again liberally and equitably construed
the electoral laws of our country to give fullest effect to the
manifest will of our people, for in case of doubt, political laws must
be interpreted to give life and spirit to the popular mandate freely
expressed through the ballot. Otherwise stated, legal niceties and
technicalities cannot stand in the way of the sovereign will. xxx
(Emphasis supplied)

For the foregoing reason, the Court must exercise utmost


caution before disqualifying a winning candidate, shown to be the
clear choice of the constituents that he wishes to represent in
Congress.

The qualifications of a member of the House of


Representatives are found in Article VI, Section 6 of the
Constitution, which provides:

Section 6. No person shall be a Member of the House of


Representatives unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least twenty-five years of age,
able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a
resident thereof for a period of not less than one year
immediately preceding the day of the election. (Emphasis
supplied)

We find the interpretation of the HRET of the residency


requirement under the Constitution to be overly restrictive and
unwarranted under the factual circumstances of this case.

The evidence presented by private respondent before the


HRET hardly suffices to prove that petitioner failed to comply with
the one-year residency requirement under the Constitution. Private
respondent’s documentary evidence to disqualify petitioner mainly
consisted of (a) petitioner’s certificates of candidacy (COCs) for
127

various positions in 1998, 2001 and 2004, which all indicated his
residence as Pagsanjan, Laguna within the Fourth District of said
province; (b) his application for a driver’s license in August 2005
that indicated Pagsanjan, Laguna as his residence; and (c) the
statement in his COCs including his 2007 COC for Congressman
for the First District of Laguna that his place of birth was
Pagsanjan, Laguna.

The only thing these pieces of documentary evidence prove is


that petitioner’s domicile of origin was Pagsanjan, Laguna and it
remained his domicile up to 2005, at the latest. On the other hand,
what petitioner asserted in his 2007 COC is that he had been a
resident of Sta. Rosa, Laguna in the First District of Laguna as of
February 2006 and respondent’s evidence failed contradict that
claim.

If it is true that petitioner and his family had been living in


Sta. Rosa, Laguna as of February 2006 with the intent to reside
therein permanently, that would more than fulfill the requirement
that petitioner be a resident of the district where he was a candidate
for at least one year before election day, which in this case was May
14, 2007.

In order to buttress his claim that he and his family actually


resided in Sta. Rosa, Laguna beginning at least in February 2006,
petitioner’s evidence included, among others: (a) original and
extended lease contracts for a townhouse in Villa de Toledo,
Barangay Balibago, Sta. Rosa, Laguna; (b) certification issued by
the President of the Villa de Toledo Homeowners Association, Inc,
that petitioner has been a resident of said Subdivision since
February 2006; (c) affidavits of petitioner’s neighbors in Villa de
Toledo attesting that petitioner has been a resident of said
subdivision since February 2006; (d) certification of the barangay
chairman of Barangay Balibago, Sta. Rosa, Laguna that petitioner is
a resident of Villa de Toledo within the said barangay; (e)
certificates of attendance of petitioner’s children in schools located
in Sta. Rosa, Laguna since 2005; and (f) DTI certificates of business
issued in the name of petitioner and his wife to show that they own
and operate businesses in Sta. Rosa, Laguna since 2003.

The fact that a few barangay health workers attested that they
had failed to see petitioner whenever they allegedly made the
rounds in Villa de Toledo is of no moment, especially considering
that there were witnesses (including petitioner’s neighbors in Villa
de Toledo) that were in turn presented by petitioner to prove that he
was actually a resident of Villa de Toledo, in the address he stated in
his COC. The law does not require a person to be in his home
twenty-four (24) hours a day, seven days a week, in order to fulfill
the residency requirement. It may be that whenever these health
workers do their rounds petitioner was out of the house to attend to
his own employment or business. It is not amiss to note that even
these barangay health workers, with the exception of one, confirm
seeing petitioner’s wife at the address stated in petitioner’s 2007
COC. Indeed, these health workers’ testimonies do not
conclusively prove that petitioner did not in fact reside in Villa de
Toledo for at least the year before election day.

Neither do we find anything wrong if petitioner sometimes


transacted business or received visitors in his Cabuyao house,
instead of the alleged Sta. Rosa residence, as there is nothing in the
residency requirement for candidates that prohibits them from
owning property and exercising their rights of ownership thereto in
other places aside from the address they had indicated as their place
of residence in their COC.
128

As regards the weight to be given the contract of lease vis-à-


vis petitioner’s previous COCs, we find Perez v. COMELEC to be
instructive in this case, and quote the pertinent portions of the
decision below:

In the case at bar, the COMELEC found that private respondent


changed his residence from Gattaran to Tuguegarao, the capital of
Cagayan, in July 1990 on the basis of the following: (1) the
affidavit of Engineer Alfredo Ablaza, the owner of the residential
apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where
private respondent had lived in 1990; (2) the contract of lease
between private respondent, as lessee, and Tomas T. Decena, as
lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao,
Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the
marriage certificate, dated January 18, 1998, between private
respondent and Lerma Dumaguit; (4) the certificate of live birth of
private respondent's second daughter; and (5) various letters
addressed to private respondent and his family, which all show that
private respondent was a resident of Tuguegarao, Cagayan for at
least one (1) year immediately preceding the elections on May 11,
1998.

There is thus substantial evidence supporting the finding that


private respondent had been a resident of the Third District of
Cagayan and there is nothing in the record to detract from the merit
of this factual finding.

Petitioner contends that the fact that private respondent was a


resident of Gattaran, at least until June 22, 1997, is shown by the
following documentary evidence in the record, to wit: (1) his
certificates of candidacy for governor of Cagayan in the 1988, 1992
and 1995 elections; (2) his voter's registration records, the latest of
which was made on June 22, 1997; and (3) the fact that private
respondent voted in Gattaran, Cagayan, in the elections of 1987,
1988, 1992 and 1995.

The contention is without merit. The fact that a person is


registered as a voter in one district is not proof that he is not
domiciled in another district. Thus, in Faypon v. Quirino, this Court
held that the registration of a voter in a place other than his
residence of origin is not sufficient to consider him to have
abandoned or lost his residence.

Nor is it of much importance that in his certificates of


candidacy for provincial governor in the elections of 1988, 1992,
and 1995, private respondent stated that he was a resident of
Gattaran. Under the law, what is required for the election of
governor is residency in the province, not in any district or
municipality, one year before the election.

Moreover, as this Court said in Romualdez-Marcos v.


COMELEC:

It is the fact of residence, not a statement in a certificate of


candidacy, which ought to be decisive in determining whether or
not an individual has satisfied the constitution's residency
qualification requirement. The said statement becomes material
only when there is or appears to be a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render a candidate
ineligible.
129

In this case, although private respondent declared in his


certificates of candidacy prior to the May 11, 1998 elections that he
was a resident of Gattaran, Cagayan, the fact is that he was actually
a resident of the Third District not just for one (1) year prior to the
May 11, 1998 elections but for more than seven (7) years since July
1990. His claim that he had been a resident of Tuguegarao since
July 1990 is credible considering that he was governor from
1988 to 1998 and, therefore, it would be convenient for him to
maintain his residence in Tuguegarao, which is the capital of the
province of Cagayan.

As always, the polestar of adjudication in cases of this nature is


Gallego v. Vera, in which this Court held: "[W]hen the evidence
on the alleged lack of residence qualification is weak or
inconclusive and it clearly appears, as in the instant case, that
the purpose of the law would not be thwarted by upholding the
right to the office, the will of the electorate should be
respected." In this case, considering the purpose of the residency
requirement, i.e., to ensure that the person elected is familiar with
the needs and problems of his constituency, there can be no doubt
that private respondent is qualified, having been governor of the
entire province of Cagayan for ten years immediately before his
election as Representative of that province's Third District.

Thus, in the case above, the Court found that the affidavit of
the lessor and the contract of lease were sufficient proof that private
respondent therein had changed his residence. In the case now
before us, although private respondent raised alleged formal defects
in the contract of lease, the lessor himself testified that as far as he
was concerned, he and petitioner had a valid contract and he
confirmed that petitioner and his family are the occupants of the
leased premises.

Petitioner correctly pointed out that the lack of proper


notarization does not necessarily nullify nor render the parties’
transaction void ab initio. In Mallari v. Alsol, we found a contract
of lease to be valid despite the non-appearance of one of the parties
before a notary public, and ruled in this wise:

Notarization converts a private document into a public


document. However, the non-appearance of the parties before the
notary public who notarized the document does not necessarily
nullify nor render the parties' transaction void ab initio. Thus:
. . . Article 1358 of the New Civil Code on the necessity of a
public document is only for convenience, not for validity or
enforceability. Failure to follow the proper form does not invalidate
a contract. Where a contract is not in the form prescribed by law,
the parties can merely compel each other to observe that form, once
the contract has been perfected. This is consistent with the basic
principle that contracts are obligatory in whatever form they may
have been entered into, provided all essential requisites are present.
Hence, the Lease Contract is valid despite Mayor Perez's
failure to appear before the notary public.

The HRET puts undue emphasis on the fact that petitioner is


only leasing a townhouse in Sta. Rosa while he owns houses in
Pagsanjan and Cabuyao. His ownership of properties in other
places has been taken to mean that petitioner did not intend to make
Sta. Rosa his permanent residence or that he had not abandoned his
domicile of origin.
130

Although it is true that the latest acquired abode is not


necessarily the domicile of choice of a candidate, there is nothing in
the Constitution or our election laws which require a congressional
candidate to sell a previously acquired home in one district and buy
a new one in the place where he seeks to run in order to qualify for
a congressional seat in that other district. Neither do we see the fact
that petitioner was only leasing a residence in Sta. Rosa at the time
of his candidacy as a barrier for him to run in that district.
Certainly, the Constitution does not require a congressional
candidate to be a property owner in the district where he seeks to
run but only that he resides in that district for at least a year prior to
election day. To use ownership of property in the district as the
determinative indicium of permanence of domicile or residence
implies that only the landed can establish compliance with the
residency requirement. This Court would be, in effect, imposing a
property requirement to the right to hold public office, which
property requirement would be unconstitutional.

This case must be distinguished from Aquino v. COMELEC


and Domino v. COMELEC, where the disqualified candidate was
shown to be merely leasing a residence in the place where he sought
to run for office. In Aquino and Domino, there appeared to be no
other material reason for the candidate to lease residential property
in the place where he filed his COC, except to fulfill the residency
requirement under election laws.

In the case at bar, there are real and substantial reasons for
petitioner to establish Sta. Rosa as his domicile of choice and
abandon his domicile of origin and/or any other previous domicile.
To begin with, petitioner and his wife have owned and operated
businesses in Sta. Rosa since 2003. Their children have attended
schools in Sta. Rosa at least since 2005. Although ownership of
property should never be considered a requirement for any
candidacy, petitioner had sufficiently confirmed his intention to
permanently reside in Sta. Rosa by purchasing residential properties
in that city even prior to the May 2007 election, as evidenced by
certificates of title issued in the name of petitioner and his wife.
One of these properties is a residence in Bel-Air, Sta. Rosa which
petitioner acquired even before 2006 but which petitioner had been
leasing out. He claims that he rented out this property because prior
to 2006 he had not decided to permanently reside in Sta. Rosa. This
could explain why in early 2006 petitioner had to rent a townhouse
in Villa de Toledo— his Bel-Air residence was occupied by a
tenant. The relatively short period of the lease was also adequately
explained by petitioner – they rented a townhouse while they were
in the process of building their own house in Sta. Rosa. True
enough, petitioner and his spouse subsequently purchased a lot also
in Villa de Toledo in April 2007, about a month before election day,
where they have constructed a home for their family’s use as a
residence. In all, petitioner had adequately shown that his transfer
of residence to Sta. Rosa was bona fide and was not merely for
complying with the residency requirement under election laws.

It was incumbent upon private respondent to prove his


assertion that petitioner is indeed disqualified from holding his
congressional seat. Private respondent’s burden of proof was not
only to establish that petitioner’s domicile of origin is different from
Sta. Rosa but also that petitioner’s domicile for the one year prior to
election day continued to be Pagsanjan, Laguna which was
petitioner’s domicile of origin or that petitioner had chosen a
domicile other than Sta. Rosa, Laguna for that same period. In
other words, to prove petitioner’s disqualification, the relevant
period is the one year period prior to election day. It would be
absurd to rule that the petitioner in a quo warranto suit only needs
131

to prove that the candidate had some other previous domicile,


regardless of how remote in time from election day that previous
domicile was established, and then the candidate would already
have the burden to prove abandonment of that previous domicile. It
is the burden of the petitioner in a quo warranto case to first prove
the very fact of disqualification before the candidate should even be
called upon to defend himself with countervailing evidence.

In our considered view, private respondent failed to discharge


his burden of proof. Petitioner’s COCs for previous elections and
his 2005 application for a driver’s license only proved that his
domicile of origin was Pagsanjan, Laguna and it remained to be so
up to 2005. Affidavits/testimonies of respondent’s witnesses, at
most, tended to prove that petitioner was on several instances found
in his house in Cabuyao, Laguna, which was not even his domicile
of origin. Cabuyao, Laguna is in the Second District of Laguna
while petitioner’s domicile of origin, Pagsanjan, is in the Fourth
District of Laguna. Based on private respondent’s own
documentary submissions, Cabuyao was never even stated as a
domicile or residence in any of the petitioner’s COCs. Moreover,
owning an abode in Cabuyao where petitioner is occasionally found
did not prove that Cabuyao is petitioner’s real domicile. Indeed,
disregarding Cabuyao as petitioner’s domicile would be consistent
with the established principle that physical presence in a place sans
the intent to permanently reside therein is insufficient to establish
domicile. Neither did private respondent’s submissions refute
petitioner’s evidence that since February 2006 petitioner has chosen
Sta. Rosa as his domicile.

To summarize, private respondent’s own evidence did not


categorically establish where petitioner’s domicile is nor did said
evidence conclusively prove that for the year prior to the May 14,
2007 petitioner had a domicile other than where he actually resided,
i.e. Sta. Rosa, Laguna. To be sure, Gallego v. Vera decreed that:

We might add that the manifest intent of the law in fixing a


residence qualification is to exclude a stranger or newcomer,
unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that
community; and when the evidence on the alleged lack of
residence qualification is weak or inconclusive and it clearly
appears, as in the instant case, that the purpose of the law
would not be thwarted by upholding the right to the office, the
will of the electorate should be respected. xxx xxx xxx
(Emphasis supplied)

Frivaldo likewise prescribed that:

xxx xxx xxx To successfully challenge a winning candidate's


qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and
promote. xxx xxx xxx (Emphasis supplied)

In Torayno, the Court had the occasion to say that:

The Constitution and the law requires residence as a


qualification for seeking and holding elective public office, in order
to give candidates the opportunity to be familiar with the needs,
difficulties, aspirations, potentials for growth and all matters vital to
the welfare of their constituencies; likewise, it enables the electorate
132

to evaluate the office seekers' qualifications and fitness for the job
they aspire for. xxx xxx xxx

Recently, in Japzon v. COMELEC, the Court, citing


Papandayan, Jr. v. COMELEC, said:

In Papandayan, Jr. v. Commission on Elections, the Court


provided a summation of the different principles and concepts in
jurisprudence relating to the residency qualification for elective
local officials. Pertinent portions of the ratio in Papandayan are
reproduced below:

Our decisions have applied certain tests and concepts in


resolving the issue of whether or not a candidate has complied with
the residency requirement for elective positions. The principle of
animus revertendi has been used to determine whether a candidate
has an "intention to return" to the place where he seeks to be
elected. Corollary to this is a determination whether there has been
an "abandonment" of his former residence which signifies an
intention to depart therefrom. In Caasi v. Court of Appeals, this
Court set aside the appealed orders of the COMELEC and the Court
of Appeals and annulled the election of the respondent as Municipal
Mayor of Bolinao, Pangasinan on the ground that respondent's
immigration to the United States in 1984 constituted an
abandonment of his domicile and residence in the Philippines.
Being a green card holder, which was proof that he was a
permanent resident or immigrant of the United States, and in the
absence of any waiver of his status as such before he ran for
election on January 18, 1988, respondent was held to be
disqualified under §68 of the Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives,


respondent Jose Ong, Jr. was proclaimed the duly elected
representative of the 2nd District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election
against claims that he was not a natural born Filipino citizen and a
resident of Laoang, Northern Samar. In sustaining the ruling of the
HRET, this Court, citing Faypon v. Quirino, applied the concept of
animus revertendi or "intent to return", stating that his absence from
his residence in order to pursue studies or practice his profession as
a certified public accountant in Manila or his registration as a voter
other than in the place where he was elected did not constitute loss
of residence. The fact that respondent made periodical journeys to
his home province in Laoag revealed that he always had animus
revertendi.

In Abella v. Commission on Elections and Larrazabal v.


Commission on Elections, it was explained that the determination of
a person's legal residence or domicile largely depends upon the
intention that may be inferred from his acts, activities, and
utterances. In that case, petitioner Adelina Larrazabal, who had
obtained the highest number of votes in the local elections of
February 1, 1988 and who had thus been proclaimed as the duly
elected governor, was disqualified by the COMELEC for lack of
residence and registration qualifications, not being a resident nor a
registered voter of Kananga, Leyte. The COMELEC ruled that the
attempt of petitioner Larrazabal to change her residence one year
before the election by registering at Kananga, Leyte to qualify her
to run for the position of governor of the province of Leyte was
proof that she considered herself a resident of Ormoc City. This
Court affirmed the ruling of the COMELEC and held that petitioner
Larrazabal had established her residence in Ormoc City, not in
Kananga, Leyte, from 1975 up to the time that she ran for the
133

position of Provincial Governor of Leyte on February 1, 1988.


There was no evidence to show that she and her husband
maintained separate residences, i.e., she at Kananga, Leyte and her
husband at Ormoc City. The fact that she occasionally visited
Kananga, Leyte through the years did not signify an intention to
continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that


"domicile" and "residence" are synonymous. The term "residence",
as used in the election law, imports not only an intention to reside in
a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure,
or for like reasons, one intends to return. In that case, petitioner
Philip G. Romualdez established his residence during the early
1980's in Barangay Malbog, Tolosa, Leyte. It was held that the
sudden departure from the country of petitioner, because of the
EDSA People's Power Revolution of 1986, to go into self-exile in
the United States until favorable conditions had been established,
was not voluntary so as to constitute an abandonment of residence.
The Court explained that in order to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the
new locality, (2) an intention to remain there, and (3) an intention to
abandon the old domicile. There must be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is


the fact of residence that is the decisive factor in determining
whether or not an individual has satisfied the residency qualification
requirement.

We do not doubt that the residency requirement is a means to


prevent a stranger or newcomer from holding office on the
assumption that such stranger or newcomer would be insufficiently
acquainted with the needs of his prospective constituents.
However, it is appropriate to point out at this juncture that aside
from petitioner’s actual, physical presence in Sta. Rosa for more
than a year prior to election day, he has demonstrated that he has
substantial ties to Sta. Rosa and the First District of Laguna for an
even longer period than that. Petitioner has business interests in Sta.
Rosa comprised of restaurants and a residential property for lease.
Petitioner has two children studying in Sta. Rosa schools even
before 2006. These circumstances provided petitioner with material
reasons to frequently visit the area and eventually take up residence
in the said district. Significantly, petitioner previously served as
Board Member and Vice-Governor for the Province of Laguna, of
which the First District and Sta. Rosa are a part. It stands to reason
that in his previous elected positions petitioner has acquired
knowledge of the needs and aspirations of the residents of the First
District who were among his constituents.

Simply put, petitioner could not be considered a “stranger” to


the community which he sought to represent and that evil that the
residency requirement was designed to prevent is not present in this
case.

We take this occasion to reiterate our ruling in Sinaca v.


Mula, to wit:

[When] a candidate has received popular mandate,


overwhelmingly and clearly expressed, all possible doubts should
134

be resolved in favor of the candidate's eligibility for to rule


otherwise is to defeat the will of the people. Above and beyond all,
the determination of the true will of the electorate should be
paramount. It is their voice, not ours or of anyone else, that must
prevail. This, in essence, is the democracy we continue to hold
sacred.
WHEREFORE, premises considered, the petition is hereby
GRANTED.

Meaning of “natural born”

ANTONIO BENGSON III VS. HOUSE OF


REPRESENTATIVES ELECTORAL
TRIBUNAL and TEODORO CRUZ, 357
SCRA 545

Rep. Act No. 2630

“Sec. 1. Any person who had lost his


Philippine Citizenship by rendering service to,
or accepting commission in, the Armed Forces
of the United States, or after separation from
the Armed Forces of the United states, acquired
US citizenship, MAY REACQUIRE
PHILIPPINE CITIZENSHIP BY TAKING AN
OATH OF ALLEGIANCE TO THE
REPUBLIC OF THE PHILIPPINES AND
REGISTERING THE SAME WITH THE
LOCAL CIVIL REGISTRY IN THE PLACE
WHERE HE RESIDES OR LAST RESIDED
IN THE PHILIPPINES. The said Oath of
allegiance shall contain a renunciation of any
other citizenship.”

1. Section 2, Article IV, 1987 Philippine


Constitution

“Section 2. Natural born citizens are


those citizens of the Philippines from
birth without having to perform an act to
acquire or perfect their Philippine
citizenship. Those who elect Philippine
Citizenship in accordance with par. 3* ,
Section 1 shall be deemed natural born
citizens.”

OCAMPO VS. HOUSE ELECTORAL


TRIBUNAL and MARIO CRESPO, a.k.a.
MARK JIMENEZ, June 15, 2004

Who takes the place of the winning


candidate as a Member of the
House of Representatives who was

*
“Those born before January 17, 1973, of Filipino mothers who elect Philippine citizenship upon reaching the age of majority.”
135

disqualified after he was


proclaimed as such?

Facts:

The petitioner and Mark Jimenez were candidates for


Congressman of the 6th District of manila for the May 14, 2001
elections. Mark Jimenez won over the petitioner with 32,097 votes as
against petitioner’s 31,329 votes.

Petitioner filed an electoral protest before the HRET based on


the following grounds: 1] misreading of ballots; 2] falsification of
election returns; 3]substitution of election returns; 4] use of marked,
spurious fake and stray ballots; and 5] presence of ballots written by
one or two persons.

On March 6, 2003, the HRET issued its Decision in the case of


ABANTE, ET AL. VS. MARI CRESPO, a.k.a. MARK JIMENEZ, et
al., declaring Mark Jimenez “ ineligible for the Office of
Representative of Sixth District of Manila for lack of residence in the
District. Mark Jimenez filed a Motion for Reconsideration which was
denied.

As a result of said disqualification of Jimenez, the petitioner


claimed that all the votes cast for the former should not be counted and
since he garnered the second highest number of votes, he should be
declared winner in the May 14, 2001 elections and be proclaimed the
duly elected Congressman of the 6th District of manila.

Issues:

1. Are the votes of Mark Jimenez stray votes and should not be
counted?
2. Whether the petitioner as second places should be proclaimed
winner since the winner was disqualified?

Held:

1. There must be a final judgment disqualifying a candidate in


order that the votes of a disqualified candidate can be considered
“stray”. This final judgment must be rendered BEFORE THE
ELECTION. This was the ruling in the case of CODILLA VS.
DE VENECIA. Hence, when a candidate has not been
disqualified by final judgment during the election day he was
voted for, the votes cast in his favor cannot be declared stray. To
do so would amount to disenfranchising the electorate in whom
sovereignty resides. The reason behind this is that the people
voted for him bona fide and in the honest belief that the
candidate was then qualified to be the person to whom they
would entrust the exercise of the powers of government.
2. The subsequent disqualification of a candidate who obtained the
highest number of votes does not entitle the second placer to be
declared the winner. The said principle was laid down as early as
1912 and reiterated in the cases of LABO VS. COMELEC,
ABELLA VS. COMELEC and DOMINO VS. COMELEC.
136

(Note, however, that if the


disqualification became
FINAL before election day
but still, the voters elected
him, said votes are
considered stray votes and
the “second placer” will be
declared the winner)

Section 7. The members of the House of


Representatives shall be elected for a term of
3 years which shall begin, unless otherwise
provided by law, at noon on the 30th day of
June next following their election.

No member of the House of


Representative shall serve for a period of
more than 3 consecutive terms. Voluntary
renunciation of the office for any length of
time shall not be considered as an
interruption in the continuity of his service
for the full term for which he was elected.

Section 8. Unless otherwise provided by law,


the regular election of the Senators and the
Members of the House of Representatives
shall be held on the second Monday of May.

a. On the manner of nomination and appointment of Sectoral


representatives to the Hose of Representatives.

Read: 1. Exec. Order No. 198, June 18, 1987


2.. DELES VS. COMMISSION ON APPOINTMENTS,
September 4, 1989

b. On gerrymandering

Read: CENIZA vs. COMELEC, 95 SCRA 763

Section 9. In case of vacancy in the Senate or


in the House of Representatives, a special
election may be called to fill such vacancy in
the manner prescribed by law, but the Senator
or Member of the House of representatives thus
elected shall serve only the unexpired term.

Read: 1. LOZADA vs. COMELEC, 120 SCRA 337

COMELEC cannot call a special election (for the legislative


districts whose Congressmen resigned or died while in office) without
a law passed by Congress appropriating funds for the said purpose.
137

2. RA 6645-RE: Filling up of Congress Vacancy, December


28, 1987

5. Section 10. The salaries of Senators and


Members of the House of Representatives shall
be determined by law. No increase in said
compensation shall take effect until after the
expiration of the full term of all the members of
the Senate and the House of representatives
approving such increase.

a. How much is the present salary of the members of Congress?


P204,000.00 [P17,000.00 per month] as per Section 17, Art. XVIII of
the Constitution. The President’s salary is P300,000.00 per annum,
while the VP, Speaker, Senate President and Chief Justice is
P240,000.00 per annum. The Chairman of the Constitutional
Commissions salary is P204,000.00 and the members, P180,000.00 per
annum.

b. Read:

1. Section 17, Article 18) (P300,000.00 for the President;


P240,000.00 for VP, Senate President; Speaker; Chief
Justice; P204,000.00 for Senators, Representatives,
Chairmen of CC; P180,000.00 for members of the
Constitutional Commissions)
2. PHILCONSA VS. JIMENEZ, 15 SCRA 479;
3. LIGOT VS. MATHAY, 56 SCRA 823

Section 11. A Senator or Member of the House of


representatives shall, in all offenses punishable by not
more than 6 years imprisonment, be privileged from arrest
while the Congress is in session. No member shall be
questioned nor be held liable in any other place for any
debate in the Congress or in any committee thereof.

a. Privilege from arrest

Read: Martinez vs. Morfe,


b. Freedom of Speech and debate

Read:
1) OSMENA VS. PENDATUN, 109 Phil. 863
2) JIMENEZ VS. CABANGBANG, 17 SCRA 876

Section 12. All members of the Senate and the House of


Representatives shall, upon assumption of office, make a
full disclosure of their financial and business interests.
They shall notify the House concerned of a potential
conflict of interest that may arise from the filing of a
proposed legislation of which they are authors.

Section 13. No Senator or Member of the House of


Representatives may hold any other office or
employment in the government, or any subdivision,
138

agency or instrumentality thereof, including


government-owned and controlled corporations or their
subsidiaries, during his term without forfeiting his seat.
Neither shall he be appointed to any office which may
have been created or the emoluments thereof increased
during the term for which he was elected.

Read:
1) ADAZA vs. PACANA, 135 SCRA 431

After taking his oath as a member of the Batasang


Pambansa (Congress), he is deemed to have resigned his
position as Governor of Misamis Oriental because as a
legislator, he is not allowed to hold any other office in the
government.

2) PUNZALAN vs. MENDOZA, 140 SCRA 153

A provincial governor who took his oath as a member of


the Batasang Pambansa as “appointed member” for being
a member of the Cabinet is allowed to return to his former
position as Governor if he resigns from the Batasan. This
is so because he was just an “appointed” member as
distinguished from the Adaza Case. (Note: It appears that
an appointed member of the Batasan is placed in a better
position than the elected members)

3) Compare with Section 10, Art. VIII of the 1973 Constitution

Section 14. No Senator or Member of the House of


Representatives may personally appear as counsel
before any court of justice or before the Electoral
Tribunals, or quasi-judicial bodies and other
administrative bodies. Neither shall he, directly or
indirectly, be interested financially in any contract with,
or any franchise or special privilege granted by the
Government, or any subdivision, agency or
instrumentality thereof, including any government
owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any
matter before any office of the government for his
pecuniary benefit or where he may be called upon to
act on account of his office.

Read:
1) VILLEGAS vs. LEGASPI, 113 SCRA 39
2) PUYAT vs. DE GUZMAN, 113 SCRA 31

What could not be done directly could not likewise be


done indirectly. So a member of Congress who is a stockholder
of the corporation involved in a case is not allowed to appear
under the guise that he is appearing as such, not as counsel for
the corporation.
139

Sections 15. The Congress shall convene once every year


on the 4th Monday of July for its regular season, unless a
different date is fixed by law, and shall continue to be in
session for such number of days as it may determine until
30 days before the opening of its next regular session,
exclusive of Saturdays, Sundays, and legal holidays. The
President may call a special session at any time.

Section 16. [1] The Senate shall elect its President


and the House of Representatives, its Speaker, by a
majority vote of all its respective members.

Each house shall choose such other officers as it


may deem necessary.

[2] A majority of each house shall constitute a


quorum to do business, but a smaller number may
adjourn from day to day and may compel the
attendance of absent members in such manner, and
under such penalties, as such House may provide.

[3] Each House may determine the rules of its


proceedings, punish its members for disorderly
behavior, and with the concurrence of 2/3 of all its
members, suspend or expel a Member. A penalty of
suspension, when imposed, shall mot exceed sixty days.

NOTE: In the cases of:

1. MIRIAM DEFENSOR SANTIAGO VS.


SANDIGANBAYAN; and
2. REP. CEFERINO PAREDES VS. SANDIGANBAYAN,

-the Supreme Court held that a member of Congress may


also be suspended by the Sandiganbayan in accordance
with Section 13 of RA 3019. This preventive suspension
applies to all public officials, including members of
Congress. Otherwise, the same will be considered class
legislation (there will be violation of the equal protection
clause) if Senators and Congressmen who commit the
same is exempt from the preventive suspension imposed
therein. But the Order of Suspension from the court shall
be given to the Speaker or Senate President for his/her
implementation.

Other than the foregoing, a member of Congress can be


suspended by the Congress itself.

[4] Each House shall keep a journal of its


proceedings, and from time to time publish the same,
excepting such parts as may, in its judgment, affect
national security; and the yeas and nays on any
question shall, at the request of one fifth of the
members present, be entered in the journal.
140

Each House shall also keep a record of its


proceedings.

[Neither House during the sessions of the


Congress, shall without the consent of the other,
adjourn for more than three days, nor to any place than
that which the 2 Houses shall be sitting.

Read:
1) AVELINO vs. CUENCO, 83 Phil. 17, Read also the motion for
reconsideration dated March 14, 1949

2) Disciplinary measures on erring members


Read: OSMENA vs. PENDATUN, 109 Phil. 863

3) Dual purpose for keeping a journal

4) Journal entry and enrolled bill theories;


which is conclusive over the other?

Read:
U.S. vs. PONS, 34 Phil. 729

The journal prevails over extraneous evidence like accounts of


newspaper journalists and reporters as to what the proceedings
all about.

b. MABANAG vs. LOPEZ VITO, 78 Phil. 1


CASCO PHIL. VS. GIMENEZ, 7 SCRA 347

The enrolled bill prevails over the journal. If the enrolled


bill provides that it is urea formaldehyde is the one exempt from
tax, and not urea and formaldehyde which appears in the journal
which was really approved, the former prevails and only
CURATIVE LEGISLATION COULD CHANGE THE SAME,
NOT JUDICIAL LEGISLATION.

d. MORALES vs. SUBIDO, 27 Phil. 131


e. ASTORGA vs. VILLEGAS, 56 SCRA 714

(NOTE: The journal prevails over the enrolled bill on all


matters required to be entered in the journals, like yeas and nays
on the final reading of a bill or on any question at the request of
1/5 of the members present. )

5) Differentiate a "regular" from a "special" session.

11. Section 17. The Senate and the House of


Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
election contests relating to election, returns,
and qualifications of their respective
members. Each Electoral tribunal shall be
composed of 9 members, 3 of whom shall be
141

justices of the Supreme Court to be designated


by the Chief justice, and the remaining six
shall be members of the Senate or House of
Representatives as the case may be, who shall
be chosen on the basis of proportional
representation from the political parties and
the parties or organizations registered under
the party-list system represented therein. The
senior justice in the Electoral tribunal shall be
its Chairman.

The HRET has jurisdiction over


qualifications of party-list groups.

DARYL GRACE ABAYON VS. HOUSE OF


REPRESENTATIVES ELECTORAL TRIBUNAL, ET AL.,
AND JOVITO PALPARAN VS. HRET, ET AL., G.R. NO.
189466, FEBRUARY 11, 2010

These two cases are about the authority of the House of


Representatives Electoral Tribunal (HRET) to pass upon the
eligibilities of the nominees of the party-list groups that won seats
in the lower house of Congress.

The Facts and the Case

In G.R. 189466, petitioner Daryl Grace J. Abayon is the first


nominee of the Aangat Tayo party-list organization that won a seat
in the House of Representatives during the 2007 elections.

Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz,


and Agustin C. Doroga, all registered voters, filed a petition for quo
warranto with respondent HRET against Aangat Tayo and its
nominee, petitioner Abayon, in HRET Case 07-041. They claimed
that Aangat Tayo was not eligible for a party-list seat in the House
of Representatives, since it did not represent the marginalized and
underrepresented sectors.

Respondent Lucaban and the others with him further pointed


out that petitioner Abayon herself was not qualified to sit in the
House as a party-list nominee since she did not belong to the
marginalized and underrepresented sectors, she being the wife of an
incumbent congressional district representative. She moreover lost
her bid as party-list representative of the party-list organization
called An Waray in the immediately preceding elections of May 10,
2004.

Petitioner Abayon countered that the Commission on


Elections (COMELEC) had already confirmed the status of Aangat
Tayo as a national multi-sectoral party-list organization representing
the workers, women, youth, urban poor, and elderly and that she
belonged to the women sector. Abayon also claimed that although
she was the second nominee of An Waray party-list organization
during the 2004 elections, she could not be regarded as having lost a
bid for an elective office.

Finally, petitioner Abayon pointed out that respondent HRET


had no jurisdiction over the petition for quo warranto since
respondent Lucaban and the others with him collaterally attacked
the registration of Aangat Tayo as a party-list organization, a matter
that fell within the jurisdiction of the COMELEC. It was Aangat
142

Tayo that was taking a seat in the House of Representatives, and not
Abayon who was just its nominee. All questions involving her
eligibility as first nominee, said Abayon, were internal concerns of
Aangat Tayo.

On July 16, 2009 respondent HRET issued an order,


dismissing the petition as against Aangat Tayo but upholding its
jurisdiction over the qualifications of petitioner Abayon. The latter
moved for reconsideration but the HRET denied the same on
September 17, 2009, prompting Abayon to file the present petition
for special civil action of certiorari.

In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first


nominee of the Bantay party-list group that won a seat in the 2007
elections for the members of the House of Representatives.
Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M.
Reyes, Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez
are members of some other party-list groups.

Shortly after the elections, respondent Lesaca and the others


with him filed with respondent HRET a petition for quo warranto
against Bantay and its nominee, petitioner Palparan, in HRET Case
07-040. Lesaca and the others alleged that Palparan was ineligible
to sit in the House of Representatives as party-list nominee because
he did not belong to the marginalized and underrepresented sectors
that Bantay represented, namely, the victims of communist rebels,
Civilian Armed Forces Geographical Units (CAFGUs), former
rebels, and security guards. Lesaca and the others said that
Palparan committed gross human rights violations against
marginalized and underrepresented sectors and organizations.

Petitioner Palparan countered that the HRET had no


jurisdiction over his person since it was actually the party-list
Bantay, not he, that was elected to and assumed membership in the
House of Representatives. Palparan claimed that he was just
Bantay’s nominee. Consequently, any question involving his
eligibility as first nominee was an internal concern of Bantay. Such
question must be brought, he said, before that party-list group, not
before the HRET.

On July 23, 2009 respondent HRET issued an order


dismissing the petition against Bantay for the reason that the issue
of the ineligibility or qualification of the party-list group fell within
the jurisdiction of the COMELEC pursuant to the Party-List System
Act. HRET, however, defended its jurisdiction over the question of
petitioner Palparan’s qualifications. Palparan moved for
reconsideration but the HRET denied it by a resolution dated
September 10, 2009, hence, the recourse to this Court through this
petition for special civil action of certiorari and prohibition.

The Issue Presented

The common issue presented in these two cases is:

Whether or not respondent HRET has jurisdiction over the


question of qualifications of petitioners Abayon and Palparan as
nominees of Aangat Tayo and Bantay party-list organizations,
respectively, who took the seats at the House of Representatives that
such organizations won in the 2007 elections.

The Court’s Ruling

Petitioners Abayon and Palparan have a common theory:


Republic Act (R.A.) 7941, the Party-List System Act, vests in the
143

COMELEC the authority to determine which parties or


organizations have the qualifications to seek party-list seats in the
House of Representatives during the elections. Indeed, the HRET
dismissed the petitions for quo warranto filed with it insofar as they
sought the disqualifications of Aangat Tayo and Bantay. Since
petitioners Abayon and Palparan were not elected into office but
were chosen by their respective organizations under their internal
rules, the HRET has no jurisdiction to inquire into and adjudicate
their qualifications as nominees.

But, although it is the party-list organization that is voted for


in the elections, it is not the organization that sits as and becomes a
member of the House of Representatives. Section 5, Article VI of
the Constitution, identifies who the “members” of that House are:

Sec. 5. (1). The House of Representatives shall be


composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and
the Metropolitan Manila area in accordance with the number of
their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national,
regional, and sectoral parties or organizations. (Underscoring
supplied)

Clearly, the members of the House of Representatives are of


two kinds: “members x x x who shall be elected from legislative
districts” and “those who x x x shall be elected through a party-
list system of registered national, regional, and sectoral parties
or organizations.” This means that, from the Constitution’s point
of view, it is the party-list representatives who are “elected” into
office, not their parties or organizations. These representatives are
elected, however, through that peculiar party-list system that the
Constitution authorized and that Congress by law established where
the voters cast their votes for the organizations or parties to which
such party-list representatives belong.

Once elected, both the district representatives and the party-


list representatives are treated in like manner. They have the same
deliberative rights, salaries, and emoluments. They can participate
in the making of laws that will directly benefit their legislative
districts or sectors. They are also subject to the same term
limitation of three years for a maximum of three consecutive terms.

It may not be amiss to point out that the Party-List System


Act itself recognizes party-list nominees as “members of the House
of Representatives,” thus:

Sec. 2. Declaration of Policy. - The State shall promote


proportional representation in the election of representatives to
the House of Representatives through a party-list system of
registered national, regional and sectoral parties or
organizations or coalitions thereof, which will enable Filipino
citizens belonging to the marginalized and underrepresented
sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House
of Representatives. Towards this end, the State shall develop
and guarantee a full, free and open party system in order to
attain the broadest possible representation of party, sectoral or
group interests in the House of Representatives by enhancing
their chances to compete for and win seats in the legislature,
144

and shall provide the simplest scheme possible. (Underscoring


supplied)

As this Court also held in Bantay Republic Act or BA-RA


7941 v. Commission on Elections, a party-list representative is in
every sense “an elected member of the House of Representatives.”
Although the vote cast in a party-list election is a vote for a party,
such vote, in the end, would be a vote for its nominees, who, in
appropriate cases, would eventually sit in the House of
Representatives.

Both the Constitution and the Party-List System Act set the
qualifications and grounds for disqualification of party-list
nominees. Section 9 of R.A. 7941, echoing the Constitution, states:

Sec. 9. Qualification of Party-List Nominees. – No person


shall be nominated as party-list representative unless he is a
natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1)
year immediately preceding the day of the election, able to read
and write, bona fide member of the party or organization which
he seeks to represent for at least ninety (90) days preceding the
day of the election, and is at least twenty-five (25) years of age
on the day of the election.

In case of a nominee of the youth sector, he must at least


be twenty-five (25) but not more than thirty (30) years of age on
the day of the election. Any youth sectoral representative who
attains the age of thirty (30) during his term shall be allowed to
continue until the expiration of his term.

In the cases before the Court, those who challenged the


qualifications of petitioners Abayon and Palparan claim that the two
do not belong to the marginalized and underrepresented sectors that
they ought to represent. The Party-List System Act provides that a
nominee must be a “bona fide member of the party or organization
which he seeks to represent.”

It is for the HRET to interpret the meaning of this particular


qualification of a nominee—the need for him or her to be a bona
fide member or a representative of his party-list organization—in
the context of the facts that characterize petitioners Abayon and
Palparan’s relation to Aangat Tayo and Bantay, respectively, and the
marginalized and underrepresented interests that they presumably
embody.

Petitioners Abayon and Palparan of course point out that the


authority to determine the qualifications of a party-list nominee
belongs to the party or organization that nominated him. This is
true, initially. The right to examine the fitness of aspiring nominees
and, eventually, to choose five from among them after all belongs to
the party or organization that nominates them. But where an
allegation is made that the party or organization had chosen and
allowed a disqualified nominee to become its party-list
representative in the lower House and enjoy the secured tenure that
goes with the position, the resolution of the dispute is taken out of
its hand.

What is inevitable is that Section 17, Article VI of the


Constitution provides that the HRET shall be the sole judge of all
contests relating to, among other things, the qualifications of the
members of the House of Representatives. Since, as pointed out
145

above, party-list nominees are “ elected members” of the House


of Representatives no less than the district representatives are,
the HRET has jurisdiction to hear and pass upon their
qualifications. By analogy with the cases of district
representatives, once the party or organization of the party-list
nominee has been proclaimed and the nominee has taken his oath
and assumed office as member of the House of Representatives, the
COMELEC’s jurisdiction over election contests relating to his
qualifications ends and the HRET’s own jurisdiction begins.

The Court holds that respondent HRET did not gravely abuse
its discretion when it dismissed the petitions for quo warranto
against Aangat Tayo party-list and Bantay party-list but upheld its
jurisdiction over the question of the qualifications of petitioners
Abayon and Palparan.

Jurisdiction of the Electoral Tribunals viz-a-viz the


COMELEC to determine the qualifications of Members of
Congress before and after proclamation.

JOCELYN SY LIMKAICHONG VS. COMELEC, G.R. No.


178831-32, April 1, 2009

Once a winning candidate has been proclaimed, taken his oath, and
assumed office as a Member of the House of Representatives, the
jurisdiction of the House of Representatives Electoral Tribunal begins
over election contests relating to his election, returns, and qualifications, and
mere allegation as to the invalidity of her proclamation does not divest
the Electoral Tribunal of its jurisdiction.

At the core of these contentious consolidated petitions are: (1) the


Joint Resolution168[1] of the Commission on Elections (COMELEC) Second
Division dated May 17, 2007, disqualifying Jocelyn D. Sy Limkaichong
(Limkaichong) from running as a congressional candidate for the First
District of Negros Oriental; (2) the COMELEC En Banc Resolution169[2]
dated June 29, 2007, affirming her disqualification; and (3) the COMELEC
En Banc Resolution170[3] dated August 16, 2007, resolving that all pending
incidents relating to her qualifications should now be determined by the
House of Representatives Electoral Tribunal (HRET).

The facts are uncontroverted. On March 26, 2007, Limkaichong filed


with the COMELEC her Certificate of Candidacy 171[4] (COC) for the position
of Representative of the First District of Negros Oriental.

In the following weeks, two (2) petitions for her disqualification were
instituted before the COMELEC by concerned citizens coming from her
locality. On April 4, 2007, Napoleon Camero, a registered voter of La
Libertad, Negros Oriental, filed the petition for her disqualification on the
ground that she lacked the citizenship requirement of a Member of the
House of Representatives. The petition, which was docketed as SPA No.

168[1]
Rollo (G.R. Nos. 178831-32), pp. 24-36.
169[2]
Id. at 53-66.
170[3]
Id. at 181-183.
171[4]
Id. at 74.
146

(PES) A07-006,172[5] alleged that she is not a natural-born Filipino because


her parents were Chinese citizens at the time of her birth. On April 11,
2007, Renald F. Villando, also a registered voter of the same locality, filed
the second petition on the same ground of citizenship, docketed as SPA
(PES) No. A07-007.173[6] He claimed that when Limkaichong was born, her
parents were still Chinese citizens as the proceedings for the naturalization
of Julio Ong Sy, her father, never attained finality due to procedural and
substantial defects. Both petitions prayed for the cancellation of
Limkaichong's COC and for the COMELEC to strike out her name from the
list of qualified candidates for the Representative of the First District of
Negros Oriental.

In her separate Answers174[7] to the petitions, Limkaichong claimed that


she is a natural-born Filipino since she was born to a naturalized Filipino
father and a natural-born Filipino mother, who had reacquired her status
as such due to her husband's naturalization. Thus, at the time of her birth on
November 9, 1959, nineteen (19) days had already passed after her father
took his Oath of Allegiance on October 21, 1959 and after he was issued a
Certificate of Naturalization on the same day. She contended that the
COMELEC should dismiss the petitions outright for lack of cause of action.
Citing Salcedo II v. Commission on Elections, ] she averred that a petition
filed before an election, questioning the qualification of a candidate, should
be based on Section 78 in relation to Section 74 of the Omnibus Election
Code (OEC and not under Sections 68 and 74 thereof in relation to Section 1
Rule 25 of the COMELEC Rules of Procedure and Section 5 paragraph C
(3.a) of COMELEC Resolution No. 7800. She also contended that the
petitions were dismissible on the ground that they were in the nature of a
collateral attack on her and her father’s citizenships, in contravention of the
well-established rule that attack on one's citizenship may only be made
through a direct action for its nullity.

The COMELEC consolidated the two (2) petitions and re-docketed


them as SPA Nos. 07-247175[17] and 07-248,176[18] entitled IN THE MATTER
OF THE PETITION TO DISQUALIFY JOCELYN SY LIMKAICHONG
FROM HER CANDIDACY AS FIRST DISTRICT REPRESENTATIVE OF
NEGROS ORIENTAL (herein referred to as the disqualification cases),
which remained pending on May 14, 2007, when the National and Local
Elections were conducted.

After the casting, counting and canvassing of votes in the said


elections, Limkaichong emerged as the winner with 65,708 votes177[19] or by
a margin of 7,746 votes over another congressional candidate, Olivia
Paras178[20] (Paras), who obtained 57,962.

On May 15, 2007, Paras filed with the COMELEC a Very Urgent
Motion for Leave to Intervene and to Suspend the Proclamation of
Jocelyn Sy Limkaichong as Winning Candidate of the First District of
Negros Oriental.179[21]

172[5]
Id. at 75-77.
173[6]
Id. at 82-87.
174[7]
Id. at 100-144.
175[17]
Entitled Napoleon Camero, Petitioner, versus Jocelyn S. Limkaichong, Respondent.
176[18]
Entitled Renald F. Villando, Petitioner, versus Jocelyn S. Limkaichong, Respondent.
177[19]
Rollo (G.R. Nos. 178831-32), p. 152.
178[20]
Rollo (G.R. Nos. 179132-33), p. 103.
179[21]
Id. at 135-141.
147

In a Joint Resolution180[22] dated May 17, 2007, the COMELEC Second


Division granted the petitions in the disqualification cases, disqualified
Limkaichong as a candidate for Representative of the First District of
Negros Oriental, directed the Provincial Supervisor of the COMELEC to
strike out her name from the list of eligible candidates, and for the
Provincial Board of Canvassers (PBOC) to suspend her proclamation.
The PBOC received the Joint Resolution of the COMELEC Second
Division on the evening of May 17, 2007, and accordingly suspended the
proclamation of Limkaichong.181[24]
The following day, or on May 18, 2007, the COMELEC En Banc
issued Resolution No. 8062182[25] adopting the policy-guidelines of not
suspending the proclamation of winning candidates with pending
disqualification cases which shall be without prejudice to the continuation
of the hearing and resolution of the involved cases.
On May 20, 2007, Limkaichong filed with the COMELEC a Motion
for Reconsideration of the Joint Resolution of May 17, 2007 and Urgent
Motion to Lift the Order Suspending Proclamation.183[26]
On May 22, 2007, Limkaichong filed another motion for the lifting of
the directive suspending her proclamation, insisting that she should be
proclaimed as the winner in the congressional race pursuant to COMELEC
Resolution No. 8062.184[27] On same date, Villando, one of the petitioners in
the disqualification cases, filed an Urgent Manifestation Clarifying
COMELEC Resolution No. 8062 with Motion,185[28] praying that the
COMELEC should not lift the suspension of Limkaichong’s proclamation.

On May 25, 2007, the PBOC, in compliance with COMELEC


Resolution No. 8062, reconvened and proclaimed Limkaichong as the duly
elected Member of the House of Representatives for the First District of
Negros Oriental.186[29]

Thereafter, or on May 30, 2007, Paras filed with the COMELEC a


Petition to Nullify and/or Annul the Proclamation of Jocelyn Sy-
Limkaichong as First District Representative of Negros Oriental in
relation to the May 17, 2007 Joint Resolution of the COMELEC
Second Division,187[30] stating, among others, that Limkaichong's
proclamation violated the earlier order of the COMELEC Second Division
suspending her proclamation. The petition, docketed as SPC No. 07-211,
was dismissed by the COMELEC First Division, 188[31] ratiocinating that the
disqualification cases were not yet final when Limkaichong was proclaimed.
180[22]
Rollo (G.R. Nos. 178831-32), pp. 24-35. The per curiam Joint Resolution was unanimously signed by Commissioners
Florentino A. Tuason, Jr. (ret.), Rene V. Sarmiento and Nicodemo T. Ferrer.
181[24]
Rollo (G.R. Nos. 179132-33), pp. 168-169, 201.
182[25]
Rollo (G.R. Nos. 178831-32), pp. 145-146. The resolution is entitled “In the Matter of Adopting the Following Policy-
Guidelines on: 1) the Proclamation of Winning Candidates with Pending Disqualification Cases; 2) Suspension of Canvassing and/or
Proclamation; and 3) Transfer of Canvassing Venue,” the pertinent portion of which is quoted as follows:
The Commission, in upholding the sovereign will of the people and in the interest of justice and fair play,
RESOLVED as it hereby RESOLVES, to adopt the following policy-guidelines in connection with the May 14,
2007 National and Local Elections:

1) No suspension of proclamation of winning candidates with pending disqualification cases

There shall be no suspension of proclamation of winning candidates with pending


disqualification cases before or after elections, involving issues of citizenship, non-residency, not
being a registered voter, nuisance candidate, and/or violation of the election laws under Section 68 of
the Omnibus Election Code, Fair Elections Act and other related election laws.

This policy however shall be without prejudice to the continuation of the hearing and
resolution of the involved cases.

183[26]
Rollo (G.R. No. 179132-33), pp. 37-52
184[27]
Id. at 147-149.
185[28]
Rollo (G.R. Nos. 179132-33), pp. 158-162.
186[29]
Rollo (G.R. Nos. 178831-32), p. 152.
187[30]
Rollo (G.R. No. 179132-33), pp. 165-192.
148

Accordingly, her proclamation which was valid or legal, effectively divested


the COMELEC of its jurisdiction over the cases. The COMELEC First
Division explained its ruling in this wise:

The Commission has made its intention in issuing


Resolution No. 8062 very clear in that there shall be no
suspension of proclamation of winning candidates with
pending disqualification cases involving, among others, issues
of citizenship. As the disqualification cases involving
Limkaichong were still pending reconsideration by the en banc,
the underlying policy which gave rise to the issuance of the
Resolution: to respect the will of the Filipino electorate, applies
to the suspension of proclamation of the winning congressional
candidate for the First District of Negros Oriental.

WHEREFORE, the instant petition is dismissed.

SO ORDERED. (Emphasis ours)

Dissatisfied, Paras moved for the reconsideration of the above


Resolution.189[32]
Meanwhile, in a Resolution190[33] dated June 29, 2007, the COMELEC
En Banc, in an equally divided vote of 3:3, denied Limkaichong’s motion
for reconsideration of the Joint Resolution of the COMELEC Second
Division in the disqualification cases.
On July 3, 2007, Limkaichong filed in the disqualification cases
against her a Manifestation and Motion for Clarification and/or To
Declare the Petitions as Dismissed in Accordance with Section 6, Rule
18 of the COMELEC Rules of Procedure.191[35] She contended that, with
her proclamation, her having taken her oath of office and her assumption of
the position, the COMELEC was divested of jurisdiction to hear the
disqualification cases. She further contended that, following Section 6, 192[36]
Rule 18 of the COMELEC Rules of Procedure, the disqualification cases
would have to be reheard, and if on rehearing, no decision would be
reached, the action or proceedings should be dismissed, because the
COMELEC En Banc was equally divided in opinion when it resolved her
motion for reconsideration.

On an even date, Paras wrote the House of Representatives informing


it of the COMELEC En Banc Resolution dated June 29, 2007 upholding the
Joint Resolution of the COMELEC Second Division dated May 17, 2007,
which disqualified Limkaichong as a congressional candidate. 193[37]

In the interim, then Speaker of the House of Representatives Jose de


Venecia, Jr. (De Venecia) allowed Limkaichong to officially assume the
188[31]
Id at 328-334. The Resolution was penned by the late Commissioner Romeo A. Brawner and concurred in by
Commissioner Resurreccion Z. Borra (ret.).
189[32]
Id. at 215-236. The COMELEC First Division denied Paras’ motion on January 28, 2008 through an Omnibus Order. (Rollo
[G.R. Nos. 178831-32], pp. 463-467.)
190[33]
Rollo (G.R. Nos. 178831-32), pp. 53-66. In the per curiam Resolution, then COMELEC Chairman Benjamin A. Abalos, Sr.,
Commissioners Rene V. Sarmiento and Nicodemo T. Ferrer voted for the denial of Limkaichong’s motion. The late Commissioner
Romeo A. Brawner (also a former Presiding Justice of the Court of Appeals) wrote a dissenting opinion, which was concurred with
by retired Commissioners Resurreccion Z. Borra and Florentino A. Tuason, Jr., to the effect that Limkaichong’s motion should be
dismissed by the COMELEC for lack of jurisdiction.
191[35]
Id. at 159-163.
192[36]
Section 6, Rule 18, COMELEC Rules of Procedure provides:
SEC. 6. Procedure if Opinion is Equally Divided. - When the Commission en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall
be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand
affirmed; and in all incidental matters, the petition or motion shall be denied.
193[37]
Rollo (G.R. Nos. 179132-33), pp. 213-214.
149

office as a Member of the House of Representatives on July 23, 2007, as


shown in the Journal of the House of Representatives. 194[38]

Despite Limkaichong’s repeated pleas for the resolution of her


manifestation and motion for clarification, 195[39] the COMELEC did not
resolve the same. Hence, on August 1, 2007, she filed with this Court a
Petition for Certiorari196[40] under Rule 65, in relation to Rule 64 of the
1997 Rules of Civil Procedure docketed as G.R. Nos. 178831-32 praying for
the annulment of the May 17, 2007 Joint Resolution of the COMELEC
Second Division and the June 29, 2007 Resolution of the COMELEC En
Banc in the disqualification cases for having been issued with grave abuse of
discretion amounting to lack of jurisdiction. She averred that since she was
already proclaimed on May 25, 2007 as Representative of the First District
of Negros Oriental, had assumed office on June 30, 2007, and had started to
perform her duties and functions as such, the COMELEC had lost its
jurisdiction and it is now the HRET which has jurisdiction over any issue
involving her qualifications for the said office.

On August 16, 2007, the COMELEC En Banc ruled on Limkaichong’s


manifestation and motion for clarification, 197[41] with the following
disquisition:

In view of the proclamation of Limkaichong and her


subsequent assumption of office on June 30, 2007, this
Commission rules that all pending incidents relating to the
qualifications of Limkaichong should now be determined by
the House of Representatives Electoral Tribunal in
accordance with the above-quoted provision of the Constitution.

WHEREFORE, premises considered, this Commission


resolved, as it hereby resolves, that all pending incidents relating
to the qualifications of Jocelyn S. Limkaichong as Member of
the House of Representatives should now be determined by the
House of Representatives Electoral Tribunal.

SO ORDERED. (Emphasis ours)

On August 24, 2007, Louis Biraogo (Biraogo), as a citizen and a


taxpayer, filed with the Court a Petition for Prohibition and Injunction
with Preliminary Injunction and/or Temporary Restraining Order 198[42]
under Section 2, Rule 65 of the 1997 Rules of Civil Procedure, docketed as
G.R. No. 179120, seeking to enjoin and permanently prohibit: (a) De
Venecia from allowing Limkaichong to sit in the House of Representatives
and participate in all its official activities; and (b) Limkaichong from
holding office as its Member.199[43]

Meanwhile, on August 28, 2007, Paras has instituted before the Court
a Petition for Quo Warranto, Prohibition and Mandamus with Prayer
for the Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction200[44] under Rule 65 of the 1997 Rules of Civil
194[38]
Id. at 238-256.
195[39]
Rollo (G.R. Nos. 178831-32), pp. 166-171. On July 5, 2007, Limkaichong filed an Urgent Motion to Resolve the
Manifestation and Motion for Clarification. On July 11, 2007, she filed a Second Motion to Resolve said manifestation and motion.
196[40]
Id. at 3-20.
197[41]
Id. at 181-183.
198[42]
Rollo (G.R. No. 179120), pp. 3-21.
199[43]
Id. at 19-20.
200[44]
Rollo (G.R. Nos. 179132-33), pp. 3-70.
150

Procedure, docketed as G.R. Nos. 179132-33, seeking, among others, the


ouster of Limkaichong from the House of Representatives on account of her
disqualification and for the holding of special elections to fill the vacancy
created by such.201[45]

On even date, the COMELEC Second Division promulgated a


Resolution202[46] denying Villando's motion to suspend the proclamation of
Limkaichong, which denial was affirmed by the COMELEC En Banc in a
Resolution203[47] dated February 1, 2008.

On September 5, 2008, Villando also filed with this Court a Petition


for Certiorari and Injunction with Preliminary Injunction and
Temporary Restraining Order204[48] under Rule 65 of the 1997 Rules of
Civil Procedure, docketed as G.R. Nos. 179240-41, contending, among
others, that the COMELEC En Banc gravely abused its discretion in issuing
the August 16, 2007 Resolution205[49] because it still acted on Limchaikong’s
manifestation and motion for clarification, notwithstanding that the same
was not set for hearing and considering that its June 29, 2007 Resolution had
already become final and executory.
As the four (4) petitions are interrelated, the Court resolved to
consolidate them in its Resolutions dated September 4 and 11, 2007.

The Court heard the parties in oral argument on August 26, 2008,
during which the following issues were tackled:

1.Whether the proclamation of Limkaichong by the Provincial


Board of Canvassers of Negros Oriental is valid;

2.Whether said proclamation divested the Commission on


Elections of jurisdiction to resolve the issue of Limkaichong's
citizenship;

3.Whether the House of Representatives Electoral Tribunal shall


assume jurisdiction, in lieu of the COMELEC, over the issue
of Limkaichong's citizenship;

4. Whether the COMELEC Second Division and the COMELEC


En Banc correctly ruled that Limkaichong is disqualified from
running as a Member of the House of Representatives on the
ground that she is not a natural-born citizen;

5. Whether the COMELEC disqualification of Limkaichong is


final and executory; and,

6. Whether the Speaker of the House of Representatives may be


compelled to prohibit Limkaichong from assuming her duties
as a Member of the House of Representatives.

On same day, the Court required the parties to simultaneously file


within twenty (20) days their respective memoranda, after which the

201[45]
Id. at 69-70.
202[46]
Rollo (G.R. Nos. 178831-32), pp. 468-470.
203[47]
Id. at 471-481.
204[48]
Rollo (G.R. Nos. 179240-41), pp. 3-28.
205[49]
Supra note 41.
151

petitions shall be deemed submitted for resolution, with or without the


memoranda.

Section 6, Article VI of the 1987 Philippine Constitution provides


for the qualification of a Member of the House of Representatives, thus:

Section 6. No person shall be a Member of the House of


Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-
five years of age, able to read and write, and, except the party-
list representatives, a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the election.

When Limkaichong filed her COC, she stated therein that she is a
natural-born Filipino citizen. It was not true, according to the petitioners in
the disqualification cases, because her father remained a Chinese citizen at
the time of her birth. The COMELEC Second Division has sided with
Camero and Villando, and disqualified Limkaichong to run as a
congressional candidate in the First District of Negros Oriental for having
failed to comply with the citizenship requirement. Accordingly, her
proclamation was ordered suspended notwithstanding that she obtained the
highest number of votes during the elections. Nonetheless, she was
proclaimed by the PBOC pursuant to the policy guidelines of COMELEC
En Banc Resolution No. 8062, and she has since assumed her position and
performed her functions as a Member of the House of Representatives.
I
Whether Limkaichong’s proclamation was valid.

The proclamation of Limkaichong was valid. The COMELEC Second


Division rendered its Joint Resolution dated May 17, 2007. On May 20,
2007, Limkaichong timely filed with the COMELEC En Banc her motion
for reconsideration as well as for the lifting of the incorporated directive
suspending her proclamation. The filing of the motion for
reconsideration effectively suspended the execution of the May 17, 2007
Joint Resolution.206[50] Since the execution of the May 17, 2007 Joint
Resolution was suspended, there was no impediment to the valid
proclamation of Limkaichong as the winner. Section 2, Rule 19 of the
COMELEC Rules of Procedure provides:
Sec. 2. Period for Filing Motions for Reconsideration. – A
motion to reconsider a decision, resolution, order or ruling of a
Division shall be filed within five (5) days from the
promulgation thereof. Such motion, if not pro forma, suspends
the execution for implementation of the decision, resolution,
order and ruling.

In G.R. Nos. 179132-33, Paras, however, maintained that


Limkaichong was a Chinese citizen who was disqualified to run as a
congressional candidate by way of a final judgment of the COMELEC.
With that, her proclamation was questionable and the same was done in
open defiance of the Joint Resolution dated May 17, 2007 of the COMELEC

206[50]
COMELEC Rules of Procedure, Rule 19, Sec. 2.
152

Second Division. She also stressed that Limkaichong's proclamation was


procedurally defective, it appearing that one of the PBOC members was not
present on May 25, 2007, and that it took place in a restaurant and not at the
provincial capitol. Finally, she argued that Limkaichong’s proclamation
was void in accordance with the Court's pronouncement in the case of
Codilla v. De Venecia.207[51]

The Office of the Solicitor General (OSG) filed its Comment on the
petition of Paras, expressing its support for the position taken by the latter.

A perusal of the arguments advanced by Paras and the OSG does not
sway the Court to rule against the validity of Limkaichong’s proclamation.
No less than the COMELEC First Division has sustained the validity of her
proclamation when it dismissed, by way of a Resolution dated June 29,
2007, the petition filed by Paras to nullify the proclamation. Not only that.
The COMELEC First Division has also adopted Limkaichong’s argument
that following her valid proclamation, the COMELEC’s jurisdiction over the
disqualification cases has ceased and that the same should be threshed out in
the proper proceedings filed before the HRET. Notably, the dismissal of
Paras’ petition was affirmed by the COMELEC in its Omnibus Order dated
January 28, 2008.

In addition, the validity of Limkaichong's proclamation is in


accordance with COMELEC En Banc Resolution No. 8062. The
disqualification cases filed against her remained pending as a result of her
timely motion for reconsideration. Villando (in G.R. Nos. 179240-41),
however, maintained that Resolution No. 8062 is invalid; hence, it could not
be used as basis to validate Limkaichong's proclamation. He argued that it
must be published since it is a “policy-guideline” in the exercise of the
COMELEC’s rule-making power. As such, it cannot supersede the Joint
Resolution of the Second Division which was rendered pursuant to the
COMELEC’s quasi-judicial power.
His argument is specious. Resolution No. 8062 is not only a policy-
guideline. It is also an administrative interpretation of the two (2)
provisions of the 1987 Constitution, namely: (i) Section 17, 208[52] Article VI
(ii); Section 2(2),209[53] Article IX-C; Section 6210[54] of R.A. 6646; and

207[51]
442 Phil. 139 (2002).
208[52]
Section 17, Article VI, 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of
all contests relating to the election, returns, and qualifications of their respective members. Each Electoral Tribunal shall be
composed of nine members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under the party-list system represented
therein. The senior justice in the Electoral Tribunal shall be its Chairman.
209[53]
Section 2(2), Article IX-C, 1987 Constitution provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
xxxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective,
regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial
courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final
orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory,
and not appealable.
210[54]
Section 6, RA 6646, otherwise known as “An Act Introducing Additional Reforms in the Electoral System and for other
Purposes,” states:
SEC. 6. Effect of Disqualification Case. - Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.
153

Sections 241211[55] and 243,212[56] Article XX of the OEC. As such, it does


not have to comply with the due process requirement. The term
“administrative” connotes or pertains to “administration, especially
management, as by managing or conducting, directing or superintending, the
execution, application, or conduct of persons or things.” It does not entail
an opportunity to be heard, the production and weighing of evidence, and a
decision or resolution thereon.213[57] This is to be distinguished from
“quasi-judicial function,” a term which applies, among others, to the action
or discretion of public administrative officers or bodies, who are required to
investigate facts, or ascertain the existence of facts, hold hearings, and draw
conclusions from them, as a basis for their official action and to exercise
discretion of a judicial nature.214[58]

Resolution No. 8062 is a valid exercise of the COMELEC’s


constitutionally mandated power to promulgate its own rules of procedure
relative to the conduct of the elections. 215[59] In adopting such policy-
guidelines for the May 14, 2007 National and Local Elections, the
COMELEC had in mind the objective of upholding the sovereign will of the
people and in the interest of justice and fair play. Accordingly, those
candidates whose disqualification cases are still pending at the time of the
elections, should they obtain the highest number of votes from the
electorate, shall be proclaimed but that their proclamation shall be without
prejudice to the continuation of the hearing and resolution of the involved
cases. Whereas, in this case, the COMELEC Second Division having failed
to act on the disqualification cases against Limkaichong until after the
conduct of the elections, with her obtaining the highest number of votes
from the electorate, her proclamation was properly effected by the PBOC
pursuant to Resolution No. 8062.

The Court has held in the case of Planas v. COMELEC,216[60] that at the time
of the proclamation of Defensor, the respondent therein who garnered the
highest number of votes, the Division Resolution invalidating his certificate
of candidacy was not yet final. As such, his proclamation was valid or
legal, as he had at that point in time remained qualified. Limkaichong’s
situation is no different from that of Defensor, the former having been
disqualified by a Division Resolution on the basis of her not being a natural-
born Filipino citizen. When she was proclaimed by the PBOC, she was the
winner during the elections for obtaining the highest number of votes, and at

211[55]
Section 241 of the OEC provides:
SEC. 241. Definition. - A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of
the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before
the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of election returns.
212[56]
Section 243 of the OEC provides:
SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be
raised in pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers.
(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this
Code.
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or
not authentic; and
(d) When the substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate or candidates.
213[57]
Villarosa v. Commission on Elections and Atty. Dan Restor, 377 Phil. 497, 506 (1999), citing the Concurring Opinion of
Justice Antonio in University of Nueva Caceres v. Martinez, 56 SCRA 148 (1974).
214[58]
Id. at 507, citing Midland Insurance Corporation, 143 SCRA 458 (1986).
215[59]
Section 3, Article IX-C, 1987 Constitution provides:
Sec. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and
decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.
216[60]
G.R. No. 167594, March 10, 2006, 484 SCRA 529, 537 .
154

that time, the Division Resolution disqualifying her has not yet became final
as a result of the motion for reconsideration.

II

Whether, upon Limkaichong's proclamation, the HRET, instead of the


COMELEC, should assume jurisdiction over the disqualification cases.

In her petition (G.R. Nos. 178831-32), Limkaichong argued that her


proclamation on May 25, 2007 by the PBOC divested the COMELEC of its
jurisdiction over all issues relating to her qualifications, and that jurisdiction
now lies with the HRET.

Biraogo, on the other hand, believed otherwise. He argued (in G.R.


No. 179120) that the issue concerning Limkaichong’s disqualification is still
within the exclusive jurisdiction of the COMELEC En Banc to resolve
because when Limkaichong was proclaimed on May 25, 2007, the matter
was still pending resolution before the COMELEC En Banc.

We do not agree. The Court has invariably held that once a winning
candidate has been proclaimed, taken his oath, and assumed office as a
Member of the House of Representatives, the COMELEC's jurisdiction
over election contests relating to his election, returns, and qualifications
ends, and the HRET's own jurisdiction begins.217[61] It follows then that
the proclamation of a winning candidate divests the COMELEC of its
jurisdiction over matters pending before it at the time of the proclamation.
The party questioning his qualification should now present his case in a
proper proceeding before the HRET, the constitutionally mandated tribunal
to hear and decide a case involving a Member of the House of
Representatives with respect to the latter's election, returns and
qualifications. The use of the word “sole” in Section 17, Article VI of the
Constitution and in Section 250218[62] of the OEC underscores the exclusivity
of the Electoral Tribunals' jurisdiction over election contests relating to its
members.219[63]

Section 17, Article VI of the 1987 Constitution provides:

Sec. 17. The Senate and the House of Representatives


shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case may be, who
shall be chosen on the basis of proportional representation from
the political parties and the parties or organizations registered
under the party-list system represented therein. The senior
Justice in the Electoral Tribunal shall be its Chairman.
217[61]
Vinzons-Chato v. Commission on Elections, G.R. No. 172131, April 2, 2007, 520 SCRA 166, 179, citing Aggabao v.
Commission on Elections, 449 SCRA 400, 404-405 (2005); Guerrero v. Commission on Elections, 391 Phil. 344, 352 (2000).
218[62]
SEC. 250. Election contests for Batasang Pambansa, regional, provincial and city offices. - A sworn petition contesting the
election of any Member of the Batasang Pambansa or any regional, provincial or city official shall be filed with the Commission by
any candidate who has duly filed a certificate of candidacy and has been voted for the same office, within ten days after the
proclamation of the results of the election.
219[63]
Vinzons-Chato v. Commission on Elections, supra note 61, at 178, citing Rasul v. Commission on Elections, 371 Phil. 760,
766 (1999).
155

Corollary thereto is Rule 14 of the 1998 Rules of the HRET, as


amended, which states:

RULE 14. Jurisdiction. - The Tribunal is the sole judge of


all contests relating to the election, returns, and qualifications
of the Members of the House of Representatives.

The COMELEC En Banc, in its Resolution dated August 16, 2007, had
given paramount consideration to the two (2) aforementioned provisions
when it stated that:

In view of the proclamation of Limkaichong and her


subsequent assumption of office on June 30, 2007, this
Commission rules that all pending incidents relating to the
qualifications of Limkaichong should now be determined by
the House of Representatives Electoral Tribunal in
accordance with the above-quoted provision of the Constitution.
WHEREFORE, premises considered, this Commission
resolved, as it hereby resolves, that all pending incidents relating
to the qualifications of Jocelyn S. Limkaichong as Member of
the House of Representatives should now be determined by the
House of Representatives Electoral Tribunal.

SO ORDERED. (Emphasis supplied)

Worth citing also is the ratiocination of the COMELEC First Division


when it dismissed the petition of Paras seeking the nullity of Limkaichong's
proclamation, thus:

The present situation is similar not to the factual


circumstances of Codilla, which Paras invokes, but rather to that
in Planas which adheres to the general rule giving jurisdiction to
the House of Representatives Electoral Tribunal. As at the time
of Limkaichong's proclamation, her disqualification was not yet
final, her proclamation was valid or legal. This Commission no
longer has jurisdiction over the case. This, notwithstanding the
Second Division's directive suspending Limkaichong's
proclamation.

The Commission has made its intention in issuing


Resolution No. 8062 very clear in that there shall be no
suspension of proclamation of winning candidates with pending
disqualification cases, involving, among others, issues of
citizenship. As the disqualification cases involving
Limkaichong were still pending reconsideration by the En Banc,
the underlying policy which gave rise to the issuance of the
resolution: to respect the will of the Filipino electorate, applies to
156

the suspension of proclamation of the winning Congressional


candidate for the First District of Negros Oriental.

WHEREFORE, the instant petition is DISMISSED.

SO ORDERED.

Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41)


steadfastly maintained that Limkaichong’s proclamation was tainted with
irregularity, which will effectively prevent the HRET from acquiring
jurisdiction.

The fact that the proclamation of the winning candidate, as in this


case, was alleged to have been tainted with irregularity does not divest the
HRET of its jurisdiction.220[64] The Court has shed light on this in the case
of Vinzons-Chato,221[65] to the effect that:

In the present case, it is not disputed that respondent Unico


has already been proclaimed and taken his oath of office as a
Member of the House of Representatives (Thirteenth Congress);
hence, the COMELEC correctly ruled that it had already lost
jurisdiction over petitioner Chato's petition. The issues raised
by petitioner Chato essentially relate to the canvassing of returns
and alleged invalidity of respondent Unico's proclamation.
These are matters that are best addressed to the sound judgment
and discretion of the HRET. Significantly, the allegation that
respondent Unico's proclamation is null and void does not divest
the HRET of its jurisdiction:

x x x [I]n an electoral contest where the


validity of the proclamation of a winning candidate
who has taken his oath of office and assumed his
post as congressman is raised, that issue is best
addressed to the HRET. The reason for this ruling is
self-evident, for it avoids duplicity of proceedings
and a clash of jurisdiction between constitutional
bodies, with due regard to the people's mandate.

Further, for the Court to take cognizance of petitioner


Chato's election protest against respondent Unico would be to
usurp the constitutionally mandated functions of the HRET.

In fine, any allegations as to the invalidity of the proclamation will not


prevent the HRET from assuming jurisdiction over all matters essential to a
member’s qualification to sit in the House of Representatives.

The 1998 HRET Rules, as amended, provide for the manner of filing
either an election protest or a petition for quo warranto against a Member of
the House of Representatives, to wit:
220[64]
Lazatin v. Commission on Elections, G.R. No. L-80007, January 25, 1988, 157 SCRA 337, 338.
221[65]
Supra note 61, at 180.
157

Rule 16. Election protest. -- A verified petition contesting


the election of any Member of the House of Representatives
shall be filed by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten (10)
days after the proclamation of the winner. The party filing the
protest shall be designated as the protestant while the adverse
party shall be known as the protestee.

xxx

Rule 17. Quo Warranto. -- A verified petition for quo


warranto contesting the election of a Member of the House of
Representatives on the ground of ineligibility or of disloyalty to
the Republic of the Philippines shall be filed by any voter within
ten (10) days after the proclamation of the winner. The party
filing the petition shall be designated as the petitioner while the
adverse party shall be known as the respondent.

xxx

Rule 19. Periods Non-Extendible. -- The ten-day period


mentioned in Rules 16 and 17 is jurisdictional and cannot be
extended.

Accordingly, after the proclamation of the winning candidate in the


congressional elections, the remedy of those who may assail one’s
eligibility/ineligibility/qualification/disqualification is to file before the
HRET a petition for an election protest, or a petition for quo warranto,
within the period provided by the HRET Rules. In Pangilinan v.
222[66]
Commission on Elections, we ruled that where the candidate has already
been proclaimed winner in the congressional elections, the remedy of
petitioner is to file an electoral protest with the Electoral Tribunal of the
House of Representatives.

The PBOC proclaimed Limkaichong as the winner on May 25, 2007.


Thus, petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41) should
have filed either an election protest or petition for quo warranto within ten
days from May 25, 2007. But they did not. In fact, to date, no petition of
protest or petition for quo warranto has been filed with the HRET. Verily,
the ten-day prescriptive period for initiating a contest against Limkaichong
has long expired.
However, the said ten-day prescriptive period under the 1998 HRET
Rules does not apply to disqualification cases based on citizenship.
Under the 1987 Constitution, Members of the House of Representatives
must be natural-born citizens not only at the time of their election but
during their entire tenure. Being a continuing requirement, one who
assails a member's citizenship or lack of it may still question the same at any
time, the ten-day prescriptive period notwithstanding.

In Frivaldo v. Commission on Elections,223[67] the Court held that:


222[66]
G.R. No. 105278, November 18, 1993, 228 SCRA 36, 44.
223[67]
G.R. No. 87193, June 23, 1989, 174 SCRA 245. (Emphasis supplied)
158

The argument that the petition filed with the Commission


on Elections should be dismissed for tardiness is not well-taken.
The herein private respondents are seeking to prevent Frivaldo
from continuing to discharge his office as governor because he is
disqualified from doing so as a foreigner. Qualifications for
public office are continuing requirements and must be
possessed not only at the time of appointment or election or
assumption of office but during the officer’s entire tenure.
Once any of the required qualifications is lost, his title may
be seasonably challenged. If, say, a female legislator were to
marry a foreigner during her term and by her act or
omission acquires his nationality, would she have the right to
remain in office simply because the challenge to her title may
not longer be made within ten days from her proclamation? x
xx
This Court will not permit the anomaly of a person
sitting as provincial governor in this country while owing
exclusive allegiance to another country. The fact that he was
elected by the people of Sorsogon does not excuse this patent
violation of the salutary rule limiting public office and
employment only to the citizens of this country. The
qualifications prescribed for elective office cannot be erased by
the electorate alone. The will of the people as expressed
through the ballot cannot cure the vice of ineligibility,
especially if they mistakenly believed, as in this case, that the
candidate was qualified. Obviously, this rule requires strict
application when the deficiency is lack of citizenship. If a
person seeks to serve in the Republic of the Philippines, he must
owe his total loyalty to this country alone, abjuring and
renouncing all fealty to any other state.

However, in assailing the citizenship of the father, the proper


proceeding should be in accordance with Section 18 of Commonwealth Act
No. 473 which provides that:
Sec. 18. Cancellation of Naturalization Certificate Issued:
- Upon motion made in the proper proceedings by the
Solicitor General or his representative, or by the proper
provincial fiscal, the competent judge may cancel the
naturalization certificate issued and its registration in the
Civil Register:

1. If it is shown that said naturalization certificate was


obtained fraudulently or illegally;
2. If the person naturalized shall, within five years next
following the issuance of said naturalization certificate,
return to his native country or to some foreign country and
establish his permanent residence there: Provided, That the
fact of the person naturalized remaining more than one
year in his native country or the country of his former
nationality, or two years in any other foreign country, shall
be considered as prima facie evidence of his intention of
taking up his permanent residence in the same:
159

3. If the petition was made on an invalid declaration of


intention;
4. If it is shown that the minor children of the person
naturalized failed to graduate from a public or private high
schools recognized by the Office of Private Education
[now Bureau of Private Schools] of the Philippines, where
Philippine history, government or civics are taught as part
of the school curriculum, through the fault of their parents
either by neglecting to support them or by transferring
them to another school or schools. A certified copy of the
decree canceling the naturalization certificate shall be
forwarded by the Clerk of Court of the Department of
Interior [now Office of the President] and the Bureau of
Justice [now Office of the Solicitor General];
5. If it is shown that the naturalized citizen has allowed
himself to be used as a dummy in violation of the
constitutional or legal provisions requiring Philippine
citizenship as a requisite for the exercise, use or enjoyment
of a right, franchise or privilege. (Emphasis supplied)

Clearly, under law and jurisprudence, it is the State, through its


representatives designated by statute, that may question the illegally or
invalidly procured certificate of naturalization in the appropriate
denaturalization proceedings. It is plainly not a matter that may be raised by
private persons in an election case involving the naturalized citizen’s
descendant.

III
Whether the COMELEC Second Division and the COMELEC En Banc
correctly disqualified Limkaichong on the ground that she is not a
natural-born Filipino citizen.

In resolving the disqualification cases, the COMELEC Second


Division relied on the entries in the docket book of the OSG, 224[69] the only
remaining record of the naturalization proceedings, 225[70] and ruled on the
basis thereof that the naturalization proceedings of Julio Ong Sy,
Limkaichong’s father, in Special Case No. 1043, were null and void. The
COMELEC Second Division adopted Villando and Camero’s arguments that
the OSG was deprived of its participation in the said case for it was not
furnished copies of the following: (a) the July 9, 1957 Order of the Court of
First Instance (CFI) granting the petition for naturalization; and (b) the
September 21, 1959 Order of the CFI declaring Julio Ong Sy a Filipino
citizen. Thus, when the latter took his oath of allegiance on October 21,
1959, it was exactly 30 days after his declaration as a naturalized Filipino, or
one day short of the reglementary period required under Sections 11 and 12
of Commonwealth Act No. 473. Such defects were fatal to the
naturalization proceedings of Julio Ong Sy and prevented the same from
gaining finality. The COMELEC Second Division concluded that since
Julio Ong Sy did not acquire Philippine citizenship through the said
naturalization proceedings, it follows that Limkaichong remains a Chinese
national and is disqualified to run as candidate and be elected as a Member
of the House of Representatives.

224[69]
Rollo p. 97.
225[70]
Id. at 172 and 175.
160

We cannot resolve the matter of Limkaichong’s citizenship as the same


should have been challenged in appropriate proceedings as earlier stated.

IV

Whether the COMELEC's disqualification of Limkaichong


is final and executory.

In resolving this issue, pertinent is the provision of Section 13(b), Rule


18 of the 1993 COMELEC Rules of Procedure:

Sec. 13. Finality of Decisions or Resolutions. – x x x

(b) In Special Actions and Special Cases, a decision or


resolution of the Commission en banc shall become final and
executory after five (5) days from its promulgation unless
restrained by the Supreme Court.

In his Memorandum dated June 27, 2008, Biraogo stated that the
Resolution of the COMELEC En Banc in the disqualification cases became
final and executory after five (5) days from its promulgation and that the
same was not restrained by this Court pursuant to Section 13(b), Rule 18 of
the 1993 COMELEC Rules of Procedure. He averred that since
Limkaichong received a copy of the COMELEC En Banc Resolution dated
June 29, 2007 on July 3, 2007, she had until July 8, 2007 within which to
obtain a restraining order from the Court to prevent the same from becoming
final and executory. However, she did not do anything to that effect.
Biraogo also averred that Limkaichong is guilty of forum shopping; hence,
her petition must be dismissed by the Court.

Instead of asking the Court for what Biraogo opined as a restraining


order, Limkaichong filed with this Court, on August 1, 2007, her petition for
certiorari assailing the said COMELEC En Banc Resolution pursuant to
Section 2,226[71] Rule 64, in relation to Rule 65, 1997 Rules of Civil
Procedure, postulating that she had thirty (30) days from July 4, 2007 within
which to file the petition, or until August 3, 2007. She cited Section 7,
Article IX of the 1987 Constitution, which prescribes the power of this
Court to review decisions of the COMELEC,227[72] thus:

SEC. 7. Each Commission shall decide by a majority vote


of all its Members any case or matter brought before it within
sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or
resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the
Commission itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each

226[71]
Section 2. Mode of review. - A judgment or final order or resolution of the Commission on Elections and the Commission on
Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided.
227[72]
Soriano, Jr. v. Commission on Elections, G.R. Nos. 164496-505, April 2, 2007, 520 SCRA 80, 107, citing Reyes v. RTC of
Oriental Mindoro, 313 Phil. 727, 734 (1995).
161

Commission may be brought to the Supreme Court on certiorari


by the aggrieved party within thirty days from receipt of a copy
thereof.

In his Comment on the petition, Villando prayed for the outright


dismissal of Limkaichong’s petition as (a) it was filed beyond the
reglementary period; (b) Limkaichong engaged in prohibited forum
shopping; and (c) Limkaichong admitted that the issues raised have become
moot and academic. He also sought to declare Limkaichong in contempt of
court for forum shopping.

The COMELEC, through the OSG, also filed its Comment, praying for
the denial of Limkaichong's petition and its dismissal for being moot,
contending that: (a) the COMELEC En Banc Resolution dated August 16,
2007 has rendered the instant petition moot and academic; and (b)
Limkaichong knowingly and intentionally engaged in forum shopping. The
OSG argued that, without waiting for the resolution of her Motion for
Clarification and two (2) successive motions to resolve said motions which
are pending before the COMELEC En Banc, Limkaichong filed the present
petition to question the Joint Resolution dated May 17, 2007 of the
COMELEC Second Division, which issues were pending before the
COMELEC En Banc. Her act of seeking relief from this Court while there
were several other incidents pending before the COMELEC, the final
resolution in either one of which will amount to res judicata in the other,
clearly showed forum shopping on her part.

In her Reply to the above Comments, Limkaichong countered that she


did not engage in forum shopping, for had she waited for the COMELEC to
rule on her manifestation and other motions, it would have resulted in the
expiration of the reglementary period for filing a petition for certiorari
before the Court.

The May 17, 2007 Joint Resolution of the COMELEC Second


Division disqualifying Limkaichong and suspending her proclamation
cannot yet be implemented considering that she timely filed a motion for
reconsideration. Thus, pursuant to Section 13(c), Rule 18 and Section 2
Rule 19 of the COMELEC Rules of Procedure, the Joint Resolution has not
yet attained finality for it to be implemented.

Notably, the seeming impropriety of the Resolution of the COMELEC


En Banc dated June 29, 2007 has since been remedied by the promulgation
of its Resolution dated August 16, 2007, recognizing that it no longer has
jurisdiction over the disqualification cases following the valid proclamation
of Limkaichong and her assumption of office as a Member of the House of
Representatives.

V
Whether the Speaker of the House of Representatives may be compelled to
prohibit Limkaichong from assuming her duties as a Member of the
House of Representatives.
162

Biraogo's contention was that De Venecia 228[73] should be stopped from


entering Limkaichong's name in the Roll of Members of the House of
Representatives because he has no power to allow an alien to sit and
continue to sit therein as it would amount to an unlawful exercise of his
legal authority. Moreover, Biraogo opposes Limkaichong’s assumption of
office in the House of Representatives since she is not qualified to sit
therein, being a Chinese citizen and, thus, disqualified by virtue of a final
and executory judgment of the COMELEC En Banc. He relied on the
COMELEC En Banc Resolution dated June 29, 2007, which affirmed the
COMELEC Second Division Joint Resolution dated May 17, 2007
disqualifying Limkaichong from holding public office. He contended that
the said Resolution dated June 29, 2007 is already final and executory;
hence, it should be respected pursuant to the principle of res judicata.

De Venecia, on the other hand, argued that he should not be faulted for
honoring the proclamation of Limkaichong, because it had the hallmarks of
regularity, and he had no power to exclude any Member of the House of
Representatives motu proprio. In their Comment on the petition,
respondents De Venecia, et al., contended that the enrollment of a Member
in the Roll of Members of the House of Representatives and his/her
recognition as such becomes the ministerial duty of the Secretary General
and the House of Representatives upon presentation by such Member of a
valid Certificate of Proclamation and Oath of Office.

Respondent Nograles, as De Venecia's, substitute, filed a


Memorandum dated July 16, 2008 stating that under the circumstances, the
House of Representatives, and its officials, are without recourse except to
honor the validity of the proclamation of Limkaichong until the same is
canceled, revoked or nullified, and to continue to recognize her as the duly
elected Representative of the First District of Negros Oriental until it is
ordered by this Court, as it was in Codilla, to recognize somebody else. He
went on to state that after assumption by the Member-elect, or having
acquired a presumptively valid title to the office, the House of
Representatives cannot, motu proprio, cancel, revoke, withdraw any
recognition given to a sitting Member or to “remove” his name from its roll,
as such would amount to a removal of such Member from his office without
due process of law. Verily, it is only after a determination by the
appropriate tribunal (as in this case, the HRET), pursuant to a final and
executory order, that the Member does not have a right to the office (i.e., not
being a duly elected Member), that the House of Representatives is directed
to exclude the said Member.

Their contentions are meritorious. The unseating of a Member of the


House of Representatives should be exercised with great caution and after
the proper proceedings for the ouster has been validly completed. For to
arbitrarily unseat someone, who obtained the highest number of votes in the
elections, and during the pendency of the proceedings determining one’s
qualification or disqualification, would amount to disenfranchising the
electorate in whom sovereignty resides. 229[74]

WHEREFORE, premises considered, the petition in G.R. Nos.


178831-32 is GRANTED and the Joint Resolution of the COMELEC

228[73]
When Speaker Jose De Venecia, Jr. was replaced by Speaker Prospero Nograles, petitioner Biraogo filed with the Court a
Respectful Manifestation with Motion to Replace Respondent Jose De Venecia, Jr. with Prospero C. Nograles, praying that the latter
will replace the former as party-respondent in G.R. No. 179120, which the Court granted in its Resolution dated April 1, 2008.
229[74]
See Codilla v. De Venecia, 442 Phil. 139 (2002).
163

Second Division dated May 17, 2007 in SPA Nos. 07-247 and 07-248 is
REVERSED and SET ASIDE. All the other petitions (G.R. Nos. 179120,
179132-33, 179240-41) are hereby DISMISSED.

Read:
1) LAZATIN VS. COMELEC, G.R. No. 80007, January 25, 1988
2) FIRDAUSI ABBAS, ET AL. VS. THE SENATE ELECTORAL
TRIBUNAL, October 27, 1988
3)ENRILE VS. COMELEC & SANCHEZ; ENRILE VS. COMELEC
& RAZUL AND SANCHEZ VS. COMELEC, Aug. 12, 1987, 153 SCRA
57
4. BONDOC VS. HRET, supra

10.Section 18. There shall be a Commission on Appointments


consisting of the Senate President, as ex-oficio chairman, 12
senators and 12 members of the House of Representatives, as
the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the
parties or organizations registered under the party-list system
represented therein. The chairman of the commission shall not
vote, except in case of a tie. The commission shall act on all
appointments submitted to it within 30 session days of the
Congress from their submission. The Commission shall rule by
a majority of all the members.

Read:

1. RAUL DAZA VS. LUIS SINGSON, December 21, 1989

If the changes (which are permanent) in the political party


affiliations of the members of Congress is substantial so as
to dramatically decrease the membership of one party
while reducing the other, the number of representatives of
the different parties in the Commission on Appointments
may also be changed in proportion to their actual
memberships. (NOTE: In Cunanan vs. Tan, the
membership of the Senators was only “temporary” so as
not to result in the change of membership in the
Commission on Appointments)

2. GUINGONA VS. GONZALES, October 20, 1992

Since 12 Senators are members of the Commission on


Appointments, in addition to the Senate President as the
head thereof, every two (2) Senators are entitled to one (1)
representative in the Commission. Parties, however, are
not allowed to “round off” their members, I.e., 7 Senators
are entitled to 3 representatives in the Commission on
Appointments, not 4 since 7/2 is only 3.5.

Further, there is nothing in the Constitution which


requires that there must be 24 members of the Commission.
If the different parties do not coalesce, then the possibility
that the total number of Senators in the CA is less than 12
is indeed a reality. (Example: Lakas---13 Senators; LDP---
164

11 Senators. In this case, Lakas is entitled to 6 members in


the CA (13/2= 6.5) while LBP would have 5 members
(11/2= 5.5)

3. GUINGONA S. GONZALES, March 1, 1993 (Resolution of the


Motion for Reconsideration of the October 20, 1992 Decision)

To be discussed later together with Sec. 16, Art. VII.

12-a. Section 19. The electoral tribunals and the Commission on


Appointments shall be constituted within 30 days after the Senate
and the House of Representatives shall have been organized with
the election of the President and the Speaker. The Commission on
Appointments shall meet only while the Congress is in session, at
the call of its Chairman or a majority of all its members, to
discharge such powers and functions as are herein conferred upon
it.

13. Sec. 20. The records and books of accounts of the Congress
shall be preserved and be open to the public in accordance with
law, and such books shall be audited by the Commission on Audit
which shall publish annually an itemized list of amounts paid to
and expenses incurred for each member.

14. Section 21. The Senate or the House of Representatives or any


of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such
inquiries shall be respected.

Read: 1) ARNAULT vs. NAZARENO, 87 Phil. 29

“A witness who refuses to answer a query by the


Committee may be detained during the term of the members
imposing said penalty but the detention should not be too long as
to violate the witness’ right to due process of law.”

Congress must have a duly published Rules;


otherwise, the Senate or the House of
Representatives could not investigate in aid
of legislation.

VIRGILLO GARCILLANO VS. HOUSE OF


REEPRESENTATIVES COMMITTEES ON PUBLIC
INFORMATION ET AL, December 23, 2008

More than three years ago, tapes ostensibly containing a wiretapped conve
purportedly between the President of the Philippines and a high-ranking official
Commission on Elections (COMELEC) surfaced. They captured unprecedented
attention and thrust the country into a controversy that placed the legitimacy of the
administration on the line, and resulted in the near-collapse of the Arroyo governmen
tapes, notoriously referred to as the “Hello Garci” tapes, allegedly contained the Pres
instructions to COMELEC Commissioner Virgilio Garcillano to manipulate in her
165

results of the 2004 presidential elections. These recordings were to become the sub
heated legislative hearings conducted separately by committees of both Hou
Congress.230[1]

In the House of Representatives (House), on June 8, 2005, then Minority Floor


Francis G. Escudero delivered a privilege speech, “Tale of Two Tapes,” and set in m
congressional investigation jointly conducted by the Committees on Public Inform
Public Order and Safety, National Defense and Security, Information and Communi
Technology, and Suffrage and Electoral Reforms (respondent House Committees). Dur
inquiry, several versions of the wiretapped conversation emerged. But on July 5,
National Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan Paguia
lawyer of former NBI Deputy Director Samuel Ong submitted to the respondent
Committees seven alleged “original” tape recordings of the supposed three-hour
conversation. After prolonged and impassioned debate by the committee members
admissibility and authenticity of the recordings, the tapes were eventually played
chambers of the House.231[2]

On August 3, 2005, the respondent House Committees decided to suspend the h


indefinitely. Nevertheless, they decided to prepare committee reports based on th
recordings and the testimonies of the resource persons. 232[3]

Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) file


this Court a Petition for Prohibition and Injunction, with Prayer for Temporary Rest
Order and/or Writ of Preliminary Injunction 233[4] docketed as G.R. No. 170338. He pray
the respondent House Committees be restrained from using these tape recordings
“illegally obtained” wiretapped conversations in their committee reports and for any
purpose. He further implored that the said recordings and any reference thereto be o
stricken off the records of the inquiry, and the respondent House Committees dire
desist from further using the recordings in any of the House proceedings. 234[5]

Without reaching its denouement, the House discussion and debates on the
tapes” abruptly stopped.

After more than two years of quiescence, Senator Panfilo Lacson roused the slum
issue with a privilege speech, “The Lighthouse That Brought Darkness.” In his dis
Senator Lacson promised to provide the public “the whole unvarnished truth — the
when’s, where’s, who’s and why’s” of the alleged wiretap, and sought an inquiry i
perceived willingness of telecommunications providers to participate in nefarious wiret
activities.

On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred


Senate Committee on National Defense and Security, chaired by Senator Rodolfo B
who had previously filed two bills 235[6] seeking to regulate the sale, purchase and
wiretapping equipment and to prohibit the Armed Forces of the Philippines (AFP
performing electoral duties.236[7]

In the Senate’s plenary session the following day, a lengthy debate ensued when S
Richard Gordon aired his concern on the possible transgression of Republic Act (R.A
4200237[8] if the body were to conduct a legislative inquiry on the matter. On August 28
Senator Miriam Defensor-Santiago delivered a privilege speech, articulating her con
230[1]
Rollo (G.R. No. 179275), p. 168.
231[2]
Rollo (G.R. No. 170338), pp. 7-9.
232[3]
Id. at 9.
233[4]
Id. at 1-38.
234[5]
Id. at 36-38.
235[6]
Rollo (G.R. No. 179275), pp. 215-220.
236[7]
Id. at 169.
237[8]
An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communications and for Other Purposes.
166

view that the Constitution absolutely bans the use, possession, replay or communication
contents of the “Hello Garci” tapes. However, she recommended a legislative invest
into the role of the Intelligence Service of the AFP (ISAFP), the Philippine National Po
other government entities in the alleged illegal wiretapping of public officials. 238[9]

On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili,


justices of the Court of Appeals, filed before this Court a Petition for Prohibition with
for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunctio
docketed as G.R. No. 179275, seeking to bar the Senate from conducting its sch
legislative inquiry. They argued in the main that the intended legislative inquiry violate
No. 4200 and Section 3, Article III of the Constitution. 240[11]

As the Court did not issue an injunctive writ, the Senate proceeded with its
hearings on the “Hello Garci” tapes on September 7, 241[12] 17242[13] and October 1,243[14] 2

Intervening as respondents,244[15] Senators Aquilino Q. Pimentel, Jr., Benigno Noy


Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamb
Madrigal and Antonio F. Trillanes filed their Comment 245[16] on the petition on Septem
2007.

The Court subsequently heard the case on oral argument. 246[17]

On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one
resource persons summoned by the Senate to appear and testify at its hearings, mo
intervene as petitioner in G.R. No. 179275.247[18]

On November 20, 2007, the Court resolved to consolidate G.R. Nos. 17033
179275.248[19]

It may be noted that while both petitions involve the “Hello Garci” recording
have different objectives—the first is poised at preventing the playing of the tapes
House and their subsequent inclusion in the committee reports, and the second se
prohibit and stop the conduct of the Senate inquiry on the wiretapped conversation.

The Court dismisses the first petition, G.R. No. 170338, and grants the second, G
179275.

-I-

Before delving into the merits of the case, the Court shall first resolve the issue
parties’ standing, argued at length in their pleadings.

238[9]
Rollo (G.R. No. 179275), pp. 169-170.
239[10]
Id. at 3-17.
240[11]
Id. at 7-13.
241[12]
Id. at 24.
242[13]
Id. at 44.
243[14]
Memorandum of Respondents-Intervenors, p. 6.
244[15]
Rollo (G.R. No. 179275), pp. 68-70.
245[16]
Id. at 71-90.
246[17]
Id. at 62. The Court identified the following issues for discussion in the October 2, 2007 Oral Argument:
Whether the petitioners have locus standi to bring this suit.
Whether the Rules of Procedure of the Senate and the Senate Committees governing the conduct of inquiries in aid of legislation have been published, in
accordance with Section 21, Article VI of the Constitution. Corollarily:
Whether these Rules must be published by every Congress.
What mode/s of publication will comply with the constitutional requirement.
Whether the inquiry, which is centered on the so-called “Garci tapes,” violates Section 3, Article III of the Constitution and/or Republic Act
No. 4200. (Id. at 66.)
247[18]
Motion for Leave to Intervene and Petition-in-Intervention filed on October 26, 2007.
248[19]
Resolution dated November 20, 2007.
167

In Tolentino v. COMELEC,249[20] we explained that “‘[l]egal standing’ or locus


refers to a personal and substantial interest in a case such that the party has sustained
sustain direct injury because of the challenged governmental act x x x,” thus,

generally, a party will be allowed to litigate only when (1) he can show that he has per
suffered some actual or threatened injury because of the allegedly illegal conduct
government; (2) the injury is fairly traceable to the challenged action; and (3) the in
likely to be redressed by a favorable action. 250[21]

The gist of the question of standing is whether a party has “alleged such a personal s
the outcome of the controversy as to assure that concrete adverseness which sharpe
presentation of issues upon which the court so largely depends for illumination of d
constitutional questions.”251[22]

However, considering that locus standi is a mere procedural technicality, the Co


recent cases, has relaxed the stringent direct injury test. David v. Macapagal-Arro
articulates that a “liberal policy has been observed, allowing ordinary citizens, mem
Congress, and civic organizations to prosecute actions involving the constitutiona
validity of laws, regulations and rulings.” 253[24] The fairly recent Chavez v. Gonzales254[
permitted a non-member of the broadcast media, who failed to allege a personal stake
outcome of the controversy, to challenge the acts of the Secretary of Justice and the N
Telecommunications Commission. The majority, in the said case, echoed the current
that “this Court has repeatedly and consistently refused to wield procedural barr
impediments to its addressing and resolving serious legal questions that greatly imp
public interest, in keeping with the Court’s duty under the 1987 Constitution to det
whether or not other branches of government have kept themselves within the limits
Constitution and the laws, and that they have not abused the discretion given to them.” 2

In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the peti
alleging that he is the person alluded to in the “Hello Garci” tapes. Further, his was p
identified by the members of the respondent committees as one of the voices
recordings.256[27] Obviously, therefore, petitioner Garcillano stands to be directly injured
House committees’ actions and charges of electoral fraud. The Court recognizes his st
to institute the petition for prohibition.

In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by a
that they are concerned citizens, taxpayers, and members of the IBP. They are of th
conviction that any attempt to use the “Hello Garci” tapes will further divide the c
They wish to see the legal and proper use of public funds that will necessarily be defra
the ensuing public hearings. They are worried by the continuous violation of the law
individual rights, and the blatant attempt to abuse constitutional processes through the c
of legislative inquiries purportedly in aid of legislation. 257[28]

Intervenor Sagge alleges violation of his right to due process considering tha
summoned to attend the Senate hearings without being apprised not only of his rights
through the publication of the Senate Rules of Procedure Governing Inquiries in
Legislation, but also of the intended legislation which underpins the investigation. He

249[20]
465 Phil. 385, 402 (2004).
250[21]
Tolentino v. Commission on Elections, id.
251[22]
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, 755.
252[23]
G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160.
253[24]
David v. Macapagal-Arroyo, id. at 218.
254[25]
G.R. No. 168338, February 15, 2008, 545 SCRA 441.
255[26]
Id.
256[27]
Reply in G.R. No. 170338, pp. 36-37.
257[28]
Rollo (G.R. No. 179275), p. 4.
168

intervenes as a taxpayer bewailing the useless and wasteful expenditure of public


involved in the conduct of the questioned hearings. 258[29]

Given that petitioners Ranada and Agcaoili allege an interest in the execution
laws and that intervenor Sagge asserts his constitutional right to due process, 259[30] they
the requisite personal stake in the outcome of the controversy by merely being citizens
Republic.

Following the Court’s ruling in Francisco, Jr. v. The House of Representatives,26


find sufficient petitioners Ranada’s and Agcaoili’s and intervenor Sagge’s allegation t
continuous conduct by the Senate of the questioned legislative inquiry will nece
involve the expenditure of public funds.261[32] It should be noted that in Francisco
personal to then Chief Justice Hilario G. Davide, Jr. had been injured by the
unconstitutional acts of the House of Representatives, yet the Court granted standing
petitioners therein for, as in this case, they invariably invoked the vindication of the
rights—as taxpayers, members of Congress, citizens, individually or in a class su
members of the bar and of the legal profession—which were also supposedly violated
therein assailed unconstitutional acts. 262[33]

Likewise, a reading of the petition in G.R. No. 179275 shows that the petitione
intervenor Sagge advance constitutional issues which deserve the attention of this C
view of their seriousness, novelty and weight as precedents. The issues are of transcen
and paramount importance not only to the public but also to the Bench and the B
should be resolved for the guidance of all. 263[34]

Thus, in the exercise of its sound discretion and given the liberal attitude it has sh
prior cases climaxing in the more recent case of Chavez, the Court recognizes th
standing of petitioners Ranada and Agcaoili and intervenor Sagge.

- II -

The Court, however, dismisses G.R. No. 170338 for being moot and aca
Repeatedly stressed in our prior decisions is the principle that the exercise by this C
judicial power is limited to the determination and resolution of actual case
controversies.264[35] By actual cases, we mean existing conflicts appropriate or ripe for j
determination, not conjectural or anticipatory, for otherwise the decision of the Cou
amount to an advisory opinion. The power of judicial inquiry does not extend to hypot
questions because any attempt at abstraction could only lead to dialectics and barre
questions and to sterile conclusions unrelated to actualities. 265[36] Neither will the
determine a moot question in a case in which no practical relief can be granted.
becomes moot when its purpose has become stale. 266[37] It is unnecessary to indu
academic discussion of a case presenting a moot question as a judgment thereon canno
any practical legal effect or, in the nature of things, cannot be enforced. 267[38]

In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforemen
the issuance of an injunctive writ to prohibit the respondent House Committees from p
the tape recordings and from including the same in their committee report. He likewis

258[29]
Petition-in-Intervention, p. 3.
259[30]
David v. Macapagal-Arroyo, supra note 23, at 223.
260[31]
460 Phil. 830 (2003).
261[32]
Francisco, Jr. v. The House of Representatives, id. at 897.
262[33]
Francisco, Jr. v. The House of Representatives, supra note 31, at 895.
263[34]
Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, May 5, 1994, 232 SCRA 110, 139.
264[35]
Dumlao v. COMELEC, 184 Phil. 369, 377 (1980). This case explains the standards that have to be followed in the exercise of the power of judicial
review, namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party raising the constitutional question; (3) the plea that
the function be exercised at the earliest opportunity; and (4) the necessity that the constitutional question be passed upon in order to decide the case.
265[36]
La Bugal-B’laan Tribal Association, Inc. v. Ramos, 465 Phil. 860, 889-890 (2004).
266[37]
Rufino v. Endriga, G.R. Nos. 139554 and 139565, July 21, 2006, 496 SCRA 13, 46.
267[38]
Lanuza, Jr. v. Yuchengco, G.R. No. 157033, March 28, 2005, 454 SCRA 130, 138.
169

that the said tapes be stricken off the records of the House proceedings. But the Cour
that the recordings were already played in the House and heard by its members. 268[39] T
also the widely publicized fact that the committee reports on the “Hello Garci” inquir
completed and submitted to the House in plenary by the respondent committees. 269[40]
been overtaken by these events, the Garcillano petition has to be dismissed for being
and academic. After all, prohibition is a preventive remedy to restrain the doing of
about to be done, and not intended to provide a remedy for an act already accomplished

- III -

As to the petition in G.R. No. 179275, the Court grants the same. The Senate
be allowed to continue with the conduct of the questioned legislative inquiry w
duly published rules of procedure, in clear derogation of the constitutional require

Section 21, Article VI of the 1987 Constitution explicitly provides that “[t]he Se
the House of Representatives, or any of its respective committees may conduct inquirie
of legislation in accordance with its duly published rules of procedure.” The requ
publication of the rules is intended to satisfy the basic requirements of due proce
Publication is indeed imperative, for it will be the height of injustice to punish or oth
burden a citizen for the transgression of a law or rule of which he had no notice what
not even a constructive one. 272[43] What constitutes publication is set forth in Article 2
Civil Code, which provides that “[l]aws shall take effect after 15 days followi
completion of their publication either in the Official Gazette, or in a newspaper of g
circulation in the Philippines.”273[44]

The respondents in G.R. No. 179275 admit in their pleadings and even on oral arg
that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation ha
published in newspapers of general circulation only in 1995 and in 2006. 274[45] With res
the present Senate of the 14th Congress, however, of which the term of half of its m
commenced on June 30, 2007, no effort was undertaken for the publication of thes
when they first opened their session.

Recently, the Court had occasion to rule on this very same question. In Neri v.
Committee on Accountability of Public Officers and Investigations, 275[46] we said:

Fourth, we find merit in the argument of the OSG that respondent Committees li
violated Section 21 of Article VI of the Constitution, requiring that the inquiry
accordance with the “duly published rules of procedure.” We quote the OSG’s explan

The phrase “duly published rules of procedure” requires the Senate of every Cong
publish its rules of procedure governing inquiries in aid of legislation because every Se
distinct from the one before it or after it. Since Senatorial elections are held every th
years for one-half of the Senate’s membership, the composition of the Senate also chan
the end of each term. Each Senate may thus enact a different set of rules as it may de
Not having published its Rules of Procedure, the subject hearings in aid of legi
conducted by the 14th Senate, are therefore, procedurally infirm.

268[39]
Rollo (G.R. No. 170338), p. 9.
269[40]
See news article “Separate findings, no closure” by Michael Lim Umbac published in The Philippine Daily Inquirer on March 29, 2006; News item
“5 House committees in ‘Garci’ probe file report on Monday” published in The Manila Bulletin on March 25, 2006.
270[41]
Simon, Jr. v. Commission on Human Rights, G.R. No. 100150, January 5, 1994, 229 SCRA 117, 135-136; Agustin v. De la Fuente, 84 Phil. 515, 517
(1949).
271[42]
Bernas, The 1987 Constitution of the Philippines, A Commentary, 1996 ed., p. 679.
272[43]
Tañada v. Tuvera, 220 Phil. 422, 432-433 (1985).
273[44]
As amended on June 18, 1987 by Executive Order No. 200 entitled “Providing for the Publication of Laws Either in the Official Gazette or in a
Newspaper of General Circulation in the Philippines as a Requirement for their Effectivity”.
274[45]
Rollo (G.R. No. 179275), p. 179; Memorandum of Respondents-Intervenors, pp. 9-10.
275[46]
G.R. No. 180643, March 25, 2008, 549 SCRA 77, 135-136.
170

Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforc


ruling with the following rationalization:

The present Senate under the 1987 Constitution is no longer a continuing leg
body. The present Senate has twenty-four members, twelve of whom are elected ever
years for a term of six years each. Thus, the term of twelve Senators expires ever
years, leaving less than a majority of Senators to continue into the next Congres
1987 Constitution, like the 1935 Constitution, requires a majority of Senators to “cons
quorum to do business.” Applying the same reasoning in Arnault v. Nazareno, the
under the 1987 Constitution is not a continuing body because less than majority
Senators continue into the next Congress. The consequence is that the Rules of Pro
must be republished by the Senate after every expiry of the term of twelve Senators. 276[4

The subject was explained with greater lucidity in our Resolution277[48] (On the
for Reconsideration) in the same case, viz.:

On the nature of the Senate as a “continuing body,” this Court sees fit to issue a clarifi
Certainly, there is no debate that the Senate as an institution is “continuing,” as it
dissolved as an entity with each national election or change in the composition
members. However, in the conduct of its day-to-day business the Senate of each Co
acts separately and independently of the Senate of the Congress before it. The Rules
Senate itself confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next
in the same status.

All pending matters and proceedings shall terminate upon the expiration of o
Congress, but may be taken by the succeeding Congress as if present for the first time.

Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bi
even legislative investigations, of the Senate of a particular Congress are con
terminated upon the expiration of that Congress and it is merely optional on the Senate
succeeding Congress to take up such unfinished matters, not in the same status, bu
presented for the first time. The logic and practicality of such a rule is readily ap
considering that the Senate of the succeeding Congress (which will typically have a di
composition as that of the previous Congress) should not be bound by the ac
deliberations of the Senate of which they had no part. If the Senate is a continuing bod
with respect to the conduct of its business, then pending matters will not be d
terminated with the expiration of one Congress but will, as a matter of course, contin
the next Congress with the same status.

This dichotomy of the continuity of the Senate as an institution and of the opposite na
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the S
main rules of procedure) states:

RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES

SEC. 136. At the start of each session in which the Senators elected in the pre
elections shall begin their term of office, the President may endorse the Rules
appropriate committee for amendment or revision.
276[47]
Id. at 297-298.
277[48]
Dated September 4, 2008.
171

The Rules may also be amended by means of a motion which should be presented at le
day before its consideration, and the vote of the majority of the Senators present in the
shall be required for its approval.

RULE LII
DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect on the date of their adoption and shall rem
force until they are amended or repealed.

Section 136 of the Senate Rules quoted above takes into account the new composition
Senate after an election and the possibility of the amendment or revision of the Rules
start of each session in which the newly elected Senators shall begin their term.

However, it is evident that the Senate has determined that its main rules are intended
valid from the date of their adoption until they are amended or repealed. Such langu
conspicuously absent from the Rules. The Rules simply state “(t)hese Rules shall take
seven (7) days after publication in two (2) newspapers of general circulation.” The latt
not explicitly provide for the continued effectivity of such rules until they are amen
repealed. In view of the difference in the language of the two sets of Senate rules, it can
presumed that the Rules (on legislative inquiries) would continue into the next Congres
Senate of the next Congress may easily adopt different rules for its legislative inquiries
come within the rule on unfinished business.

The language of Section 21, Article VI of the Constitution requiring that the inqu
conducted in accordance with the duly published rules of procedure is categorical
incumbent upon the Senate to publish the rules for its legislative inquiries in each Cong
otherwise make the published rules clearly state that the same shall be effective in subs
Congresses or until they are amended or repealed to sufficiently put public on notice.

If it was the intention of the Senate for its present rules on legislative inquiries to be ef
even in the next Congress, it could have easily adopted the same language it had use
main rules regarding effectivity.

Respondents justify their non-observance of the


constitutionally mandated publication by arguing that the
rules have never been amended since 1995 and, despite
that, they are published in booklet form available to
anyone for free, and accessible to the public at the Senate’s
internet web page.278[49]

The Court does not agree. The absence of any


amendment to the rules cannot justify the Senate’s defiance
of the clear and unambiguous language of Section 21,
Article VI of the Constitution. The organic law instructs,
without more, that the Senate or its committees may
conduct inquiries in aid of legislation only in accordance
with duly published rules of procedure, and does not make
any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to
publish the said rules prevails over any custom, practice or
tradition followed by the Senate.
278[49]
TSN, Oral Arguments, March 4, 2008, (G.R. No. 179275), pp. 413-414.
172

Justice Carpio’s response to the same argument


raised by the respondents is illuminating:

The publication of the Rules of Procedure in


the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the
Tañada v. Tuvera ruling which requires publication
either in the Official Gazette or in a newspaper of
general circulation. The Rules of Procedure even
provide that the rules “shall take effect seven (7) days
after publication in two (2) newspapers of general
circulation,” precluding any other form of
publication. Publication in accordance with Tañada
is mandatory to comply with the due process
requirement because the Rules of Procedure put a
person’s liberty at risk. A person who violates the
Rules of Procedure could be arrested and detained by
the Senate.

The invocation by the respondents of the provisions


of R.A. No. 8792,279[50] otherwise known as the Electronic
Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect.
R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a
written document only for evidentiary purposes.280[51] In
other words, the law merely recognizes the admissibility in
evidence (for their being the original) of electronic data
messages and/or electronic documents.281[52] It does not
make the internet a medium for publishing laws, rules
and regulations.

Given this discussion, the respondent Senate


Committees, therefore, could not, in violation of the
279[50]
Entitled “An Act Providing for the Recognition and Use of Electronic Commercial and Non-Commercial Transactions and Documents, Penalties for
Unlawful Use Thereof and For Other Purposes,” approved on June 14, 2000.
280[51]
MCC Industrial Sales Corporation v. Ssangyong Corporation , G.R. No. 170633, October 15, 2007, 536 SCRA 408. (Emphasis
supplied.)
281[52]
Sections 6, 7 and 10 of R.A. No. 8792 read:
Sec. 6. Legal Recognition of Data Messages. - Information shall not be denied legal effect, validity or enforceability solely on the grounds that
it is in the data message purporting to give rise to such legal effect, or that it is merely referred to in that electronic data message.
Sec. 7. Legal Recognition of Electronic Documents. – Electronic documents shall have the legal effect, validity or enforceability as any other
document or legal writing, and –
(a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains
its integrity and reliability, and can be authenticated so as to be usable for subsequent reference, in that –
(i) The electronic document has remained complete and unaltered, apart from the addition of any endorsement and any authorized change,
or any change which arises in the normal course of communication, storage and display; and
(ii) The electronic document is reliable in the light of the purpose for which it was generated and in the light of all the relevant
circumstances.
(b) Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences
for the document not being presented or retained in its original form.
(c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document
if –
(i) There exists a reliable assurance as to the integrity of the document from the time when it was first generated in its final form; and
(ii) That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall
apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity.
For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws.
This Act does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules
relating to authentication and best evidence.
Sec. 10. Original Documents. – (1) Where the law requires information to be presented or retained in its original form, that requirement is
met by an electronic data message or electronic document if:
The integrity of the information from the time when it was first generated in its final form, as an electronic data
message or electronic document is shown by evidence aliunde or otherwise; and
Where it is required that information be presented, that the information is capable of being displayed to the person to
whom it is to be presented.
Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for
the information not being presented or retained in its original form.
For the purposes of subparagraph (a) of paragraph (1):
the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from
the addition of any endorsement and any change which arises in the normal course of communication, storage and display; and
the standard of reliability required shall be assessed in the light of the purpose for which the information was
generated and in the light of all relevant circumstances.
173

Constitution, use its unpublished rules in the legislative


inquiry subject of these consolidated cases. The conduct of
inquiries in aid of legislation by the Senate has to be
deferred until it shall have caused the publication of the
rules, because it can do so only “in accordance with its
duly published rules of procedure.”

Very recently, the Senate caused the publication of


the Senate Rules of Procedure Governing Inquiries in Aid
of Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this
fact, the recent publication does not cure the infirmity of
the inquiry sought to be prohibited by the instant petitions.
Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be
undertaken by the respondent Senate Committees, because
no published rules governed it, in clear contravention of
the Constitution.

With the foregoing disquisition, the Court finds it


unnecessary to discuss the other issues raised in the
consolidated petitions.

WHEREFORE, the petition in G.R. No. 170338 is


DISMISSED, and the petition in G.R. No. 179275 is
GRANTED. Let a writ of prohibition be issued enjoining
the Senate of the Republic of the Philippines and/or any of
its committees from conducting any inquiry in aid of
legislation centered on the “Hello Garci” tapes.

MAY THE SENATE


COMMITTEE ON FOREIGN
RELATIONS CONDUCT
INVESTIGATIONS IN AID OF
LEGISLATION FOR AN
ALLEGED ILLEGAL ACTS
COMMITTED BY POLICE
GENERALS IN MOSCOW,
RUSSIA WHICH IS OUTSIDE
THE PHILIPPINES?

SPOUSES PNP DIRECTOR ELISEO DE


LA PAZ & MARIA FE DE LA PAZ VS.
SENATE COMMITTEE ON FOREIGN
AFFAIRS, G.R. No. 184849, February 13,
2009

This is a Petition for Certiorari and Prohibition282[1] under


Rule 65 of the Rules of Court filed on October 28, 2008 by
petitioners-spouses General (Ret.) Eliseo D. dela Paz (Gen. Dela
Paz) and Mrs. Maria Fe C. dela Paz (Mrs. Dela Paz) assailing,

282[1]
Rollo, pp. 3-21.
174

allegedly for having been rendered with grave abuse of


discretion amounting to lack or excess of jurisdiction, the orders
of respondent Senate Foreign Relations Committee (respondent
Committee), through its Chairperson, Senator Miriam Defensor-
Santiago (Senator Santiago), (1) denying petitioners’ Challenge
to Jurisdiction with Motion to Quash Subpoenae and (2)
commanding respondent Senate Sergeant-at-Arms Jose
Balajadia, Jr. (Balajadia) to immediately arrest petitioners during
the Senate committee hearing last October 23, 2008. The
petition thus prays that respondent Committee be enjoined from
conducting its hearings involving petitioners, and to enjoin
Balajadia from implementing the verbal arrest order against
them.

The antecedents are as follow –

On October 6, 2008, a Philippine delegation of eight (8)


senior Philippine National Police (PNP) officers arrived in
Moscow, Russia to attend the 77th General Assembly Session of
the International Criminal Police Organization (ICPO)-
INTERPOL in St. Petersburg from October 6-10, 2008. With the
delegation was Gen. Dela Paz, then comptroller and special
disbursing officer of the PNP. Gen. Dela Paz, however, was to
retire from the PNP on October 9, 2008.

On October 11, 2008, Gen. Dela Paz was apprehended by


the local authorities at the Moscow airport departure area for
failure to declare in written form the 105,000 euros
[approximately P6,930,000.00] found in his luggage. In
addition, he was also found to have in his possession 45,000
euros (roughly equivalent to P2,970,000.00).

Petitioners were detained in Moscow for questioning.


After a few days, Gen. Dela Paz and the PNP delegation were
allowed to return to the Philippines, but the Russian government
confiscated the euros.

On October 21, 2008, Gen. Dela Paz arrived in Manila, a


few days after Mrs. Dela Paz. Awaiting them were subpoenae
earlier issued by respondent Committee for the investigation it
was to conduct on the Moscow incident on October 23, 2008.

On October 23, 2008, respondent Committee held its first


hearing. Instead of attending the hearing, petitioners filed with
respondent Committee a pleading denominated Challenge to
Jurisdiction with Motion to Quash Subpoena.283[2] Senator
Santiago emphatically defended respondent Committee’s
jurisdiction and commanded Balajadia to arrest petitioners.

Hence, this Petition.

Petitioners argue that respondent Committee is devoid of


any jurisdiction to investigate the Moscow incident as the matter
does not involve state to state relations as provided in paragraph
283[2]
Id. at 28.
175

12, Section 13, Rule 10 of the Senate Rules of Procedure (Senate


Rules). They further claim that respondent Committee violated
the same Senate Rules when it issued the warrant of arrest
without the required signatures of the majority of the members
of respondent Committee. They likewise assail the very same
Senate Rules because the same were not published as required
by the Constitution, and thus, cannot be used as the basis of any
investigation involving them relative to the Moscow incident.

Respondent Committee filed its Comment 284[3] on January


22, 2009.

The petition must inevitably fail.


First. Section 16(3), Article VI of the Philippine
Constitution states:

“Each House shall determine the rules of its


proceedings.”

This provision has been traditionally construed as a grant


of full discretionary authority to the Houses of Congress in the
formulation, adoption and promulgation of its own rules. As
such, the exercise of this power is generally exempt from judicial
supervision and interference, except on a clear showing of such
arbitrary and improvident use of the power as will constitute a
denial of due process.285[4]

The challenge to the jurisdiction of the Senate Foreign


Relations Committee, raised by petitioner in the case at bench, in
effect, asks this Court to inquire into a matter that is within the
full discretion of the Senate. The issue partakes of the nature of
a political question that, in Tañada v. Cuenco,286[5] was
characterized as a question which, under the Constitution, is to
be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the
legislative or executive branch of the government. Further,
pursuant to this constitutional grant of virtually unrestricted
authority to determine its own rules, the Senate is at liberty to
alter or modify these rules at any time it may see fit, subject only
to the imperatives of quorum, voting and publication.

Thus, it is not for this Court to intervene in what is clearly


a question of policy, an issue dependent upon the wisdom, not
the legality, of the Senate’s action.

Second. Even if it is within our power to inquire into the


validity of the exercise of jurisdiction over the petitioners by the
Senate Foreign Relations Committee, we are convinced that
respondent Committee has acted within the proper sphere of its
authority.

284[3]
Id. at 126-137.
285[4]
See Morrero v. Bocar, 37 O.G. 445.
286[5]
100 Phil. 101 (1957).
176

Paragraph 12, Section 13, Rule 10 of the Senate Rules


provides:

12) Committee on Foreign Relations. – Fifteen


(15) members. All matters relating to the relations
of the Philippines with other nations generally;
diplomatic and consular services; the Association of
Southeast Asian Nations; the United Nations
Organization and its agencies; multi-lateral
organizations, all international agreements,
obligations and contracts; and overseas Filipinos.

A reading of the above provision unmistakably shows that


the investigation of the Moscow incident involving petitioners is
well within the respondent Committee’s jurisdiction.

The Moscow incident could create ripples in the


relations between the Philippines and Russia. Gen. Dela Paz
went to Moscow in an official capacity, as a member of the
Philippine delegation to the INTERPOL Conference in St.
Petersburg, carrying a huge amount of “public” money
ostensibly to cover the expenses to be incurred by the delegation.
For his failure to comply with immigration and currency laws,
the Russian government confiscated the money in his possession
and detained him and other members of the delegation in
Moscow.

Furthermore, the matter affects Philippine international


obligations. We take judicial notice of the fact that the
Philippines is a state-party to the United Nations Convention
Against Corruption and the United Nations Convention Against
Transnational Organized Crime. The two conventions contain
provisions dealing with the movement of considerable
foreign currency across borders. 287[6] The Moscow incident
would reflect on our country’s compliance with the obligations
required of state-parties under these conventions. Thus, the
respondent Committee can properly inquire into this matter,
particularly as to the source and purpose of the funds discovered
in Moscow as this would involve the Philippines’ commitments
under these conventions.

Third. The Philippine Senate has decided that the


legislative inquiry will be jointly conducted by the respondent
Committee and the Senate Committee on Accountability of
Public Officers and Investigations (Blue Ribbon Committee).
287[6]
Art. 14(2) of the United Nations Convention Against Corruption provides –
State parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate
negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any
way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross
border transfer of substantial quantities of cash and appropriate negotiable instruments.
The United Nations Convention Against Transnational Organized Crime provides –
Art. 7(1), Each State Party:
(a) Shall institute a comprehensive domestic and regulatory and supervisory regime for banks and non-bank financial
institutions and, where appropriate, other bodies particularly susceptible to money-laundering, within its competence, in order to
deter and detect all forms of money-laundering, which regime shall emphasize requirements for customer identification, record-
keeping and the reporting of suspicious transactions;
Art. 7(2):
State Parties shall consider implementing feasible measures to detect and monitor the movement of cash and appropriate
negotiable instruments across their borders, subject to safeguards to ensure proper use of information and without impeding in any
way the movement of legitimate capital. Such measures may include a requirement that individuals and businesses report the cross-
border transfer of substantial quantities of cash and appropriate negotiable instruments. (Underscoring supplied.)
177

Pursuant to paragraph 36, Section 13, Rule 10 of the


Senate Rules, the Blue Ribbon Committee may conduct
investigations on all matters relating to malfeasance,
misfeasance and nonfeasance in office by officers and employees
of the government, its branches, agencies, subdivisions and
instrumentalities, and on any matter of public interest on its own
initiative or brought to its attention by any of its members. It is,
thus, beyond cavil that the Blue Ribbon Committee can
investigate Gen. Dela Paz, a retired PNP general and member of
the official PNP delegation to the INTERPOL Conference in
Russia, who had with him millions which may have been
sourced from public funds.

Fourth. Subsequent to Senator Santiago’s verbal


command to Balajadia to arrest petitioners, the Philippine Senate
issued a formal written Order 288[7] of arrest, signed by ten (10)
senators, with the Senate President himself approving it, in
accordance with the Senate Rules.

Fifth. The Philippine Senate has already published its


Rules of Procedure Governing Inquiries in Aid of Legislation in
two newspapers of general circulation.289[8]

Sixth. The arrest order issued against the petitioners has


been rendered ineffectual. In the legislative inquiry held on
November 15, 2008, jointly by the respondent Committee and
the Senate Blue Ribbon Committee, Gen. Dela Paz voluntarily
appeared and answered the questions propounded by the
Committee members. Having submitted himself to the
jurisdiction of the Senate Committees, there was no longer any
necessity to implement the order of arrest. Furthermore, in the
same hearing, Senator Santiago granted the motion of Gen. Dela
Paz to dispense with the presence of Mrs. Dela Paz for
humanitarian considerations.290[9] Consequently, the order for her
arrest was effectively withdrawn.

WHEREFORE, the petition is DISMISSED for lack of


merit and for being moot and academic.

Power of Congress to conduct


investigation in aid of legislation;
distinguish said power with its
power to call department
secretaries, etc., during “question
hour”

SENATE OF THE PHILIPPINES,


represented by SENATE PRESIDENT
FRANKLIN DRILON, ET AL., VS. EXEC.
SEC. EDUARDO ERMITA, ET AL., G.R.
No. 16977, April 20, 2006
288[7]
Rollo, pp. 138-139.
289[8]
Publication was made in the October 31, 2008 issues of the Manila Daily Bulletin and the Malaya.
290[9]
Rollo, p. 143.
178

CARPIO MORALES, J.:

The Facts:

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

On September 21 to 23, 2005, the Committee of the Senate as a whole


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

The Senate Committee on National Defense and Security likewise issued


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

Also invited to the above-said hearing scheduled on September 28 2005 was


the AFP Chief of Staff, General Generoso S. Senga who, by letter dated
September 27, 2005, requested for its postponement “due to a pressing operational
situation that demands [his] utmost personal attention” while “some of the invited
AFP officers are currently attending to other urgent operational matters.”

On September 28, 2005, Senate President Franklin M. Drilon received from


Executive Secretary Eduardo R. Ermita a letter 291 dated September 27, 2005
“respectfully request[ing] for the postponement of the hearing [regarding the
291
Annex “B,” id. at 52.
179

NorthRail project] to which various officials of the Executive Department have


been invited” in order to “afford said officials ample time and opportunity to study
and prepare for the various issues so that they may better enlighten the Senate
Committee on its investigation.”

Senate President Drilon, however, wrote292 Executive Secretary Ermita that


the Senators “are unable to accede to [his request]” as it “was sent belatedly” and
“[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week.”

Senate President Drilon likewise received on September 28, 2005 a letter


from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.

On September 28, 2005, the President of the Philippines issued E.O. 464,
“ENSURING OBSERVANCE OF THE PRINCIPLE OF SEPARATION OF
POWERS, ADHERENCE TO THE RULE ON EXECUTIVE PRIVILEGE AND
RESPECT FOR THE RIGHTS OF PUBLIC OFFICIALS APPEARING IN
LEGISLATIVE INQUIRIES IN AID OF LEGISLATION UNDER THE
CONSTITUTION, AND FOR OTHER PURPOSES,” which, pursuant to Section
6 thereof, took effect immediately. The salient provisions of the Order are as
follows:

SECTION 1. Appearance by Heads of Departments Before Congress. – In


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

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

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

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

Executive privilege covers all confidential or classified information between the


President and the public officers covered by this executive order, including:

1. Conversations and correspondence between the President and the


public official covered by this executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
2. Military, diplomatic and other national security matters which in
the interest of national security should not be divulged (Almonte vs. Vasquez, G.R.
292
Annex “C,” id. at 53.
180

No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good


Government, G.R. No. 130716, 9 December 1998).
3. Information between inter-government agencies prior to the
conclusion of treaties and executive agreements (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
4. Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9 December
1998);
5. Matters affecting national security and public order (Chavez v.
Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

1. Senior officials of executive departments who in the judgment of


the department heads are covered by the executive privilege;
2. Generals and flag officers of the Armed Forces of the Philippines
and such other officers who in the judgment of the Chief of Staff are covered by
the executive privilege;
3. Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the judgment of the Chief
of the PNP are covered by the executive privilege;
4. Senior national security officials who in the judgment of the
National Security Adviser are covered by the executive privilege; and
5. Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. – All public


officials enumerated in Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)
A transparent government is one of the hallmarks of a truly republican state.
Even in the early history of republican thought, however, it has been recognized
that the head of government may keep certain information confidential in pursuit
of the public interest. Explaining the reason for vesting executive power in only
one magistrate, a distinguished delegate to the U.S. Constitutional Convention
said: “Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of
any greater number; and in proportion as the number is increased, these qualities
will be diminished.”

Considering that no member of the executive department would want to


appear in the above Senate investigations in aid of legislation by virtue of Proc.
No. 464, the petitioners filed the present petitions to declare the same
unconstitutional because the President abused her powers in issuing Executive
Order No. 464.

I S S U E S:

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

2. Whether E.O. 464 violates the right of the people to information on


matters of public concern; and
181

3. Whether respondents have committed grave abuse of discretion when they


implemented E.O. 464 prior to its publication in a newspaper of general
circulation.

H E L D:

Before proceeding to resolve the issue of the constitutionality of E.O. 464,


ascertainment of whether the requisites for a valid exercise of the Court’s power
of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging
the act must have standing to challenge the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest opportunity; and
(4) the issue of constitutionality must be the very lis mota of the case.293

Invoking this Court’s ruling in National Economic Protectionism


Association v. Ongpin294 and Valmonte v. Philippine Charity Sweepstakes Office,295
respondents assert that to be considered a proper party, one must have a personal
and substantial interest in the case, such that he has sustained or will sustain direct
injury due to the enforcement of E.O. 464. 296

The Supreme Court, however, held that when suing as a citizen, the interest
of the petitioner in assailing the constitutionality of laws, presidential decrees,
orders, and other regulations, must be direct and personal. In Franciso v. House
of Representatives,297 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.

The Congress power of inquiry is expressly recognized in Section 21 of


Article VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its


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

The 1935 Constitution did not contain a similar provision. Nonetheless, in


Arnault v. Nazareno,298 a case decided in 1950 under that Constitution, the Court
already recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous


purchase of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the
controversy, was called to testify thereon by the Senate. On account of his refusal
to answer the questions of the senators on an important point, he was, by
293
Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.
294
G.R. No. 67752, April 10, 1989, 171 SCRA 657.
295
G.R. No. 78716, September 22, 1987 (res).
296
Rollo (G.R. No. 169777), p. 117.
297
Supra note 39 at 136.
298
87 Phil. 29 (1950).
182

resolution of the Senate, detained for contempt. Upholding the Senate’s power to
punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either


House of Congress with power to make investigations and exact testimony to the
end that it may exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be implied. In other
words, the power of inquiry – with process to enforce it – is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information – which is not
infrequently true – recourse must be had to others who do possess it. Experience
has shown that mere requests for such information are often unavailing, and also
that information which is volunteered is not always accurate or complete; so some
means of compulsion is essential to obtain what is needed.299 . . . (Emphasis and
underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate. 300 The matters which
may be a proper subject of legislation and those which may be a proper subject of
investigation are one. It follows that the operation of government, being a
legitimate subject for legislation, is a proper subject for investigation.

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

As discussed in Arnault, the power of inquiry, “with process to enforce it,”


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

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 301 the
inquiry itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result as occurred
in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need
for the inquiry. Given such statement in its invitations, along with the usual
indication of the subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the person invited
on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe


the legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of

299
Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).
300
Id. at 46.
301
G.R. 89914, Nov. 20, 1991, 203 SCRA 767.
183

persons appearing in or affected by such inquiries be respected, an imposition that


obligates Congress to adhere to the guarantees in the Bill of Rights.

A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation.

Sections 21 and 22, therefore, while closely related and complementary to


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

When Congress merely seeks to be informed on how department heads are


implementing the statutes which it has issued, its right to such information is not
as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In
such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in
which Congress requires their appearance is “in aid of legislation” under Section
21, the appearance is mandatory for the same reasons stated in Arnault.302

In fine, the oversight function of Congress may be facilitated by compulsory


process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the Constitutional
Commission.

Ultimately, the power of Congress to compel the appearance of executive


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

When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They are
not exempt by the mere fact that they are department heads. Only one executive
official may be exempted from this power — the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power of
impeachment.

Section 1, in view of its specific reference to Section 22 of Article VI of the


Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department heads
in the question hour is therefore CONSTITUTIONAL.

It is different insofar as Sections 2 and 3 are concerned. Section 3 of E.O.


464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The
enumeration is broad. It covers all senior officials of executive departments, all
officers of the AFP and the PNP, and all senior national security officials who, in
the judgment of the heads of offices designated in the same section (i.e.
department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are “covered by the executive privilege.”
302
Supra.
184

The enumeration also includes such other officers as may be determined by


the President. Given the title of Section 2 — “Nature, Scope and Coverage of
Executive Privilege” —, it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on a
similar finding of coverage under executive privilege.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from Chavez
v. PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is


privileged information rooted in the separation of powers. The information does
not cover Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal-deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of information cannot be
pried open by a co-equal branch of government. A frank exchange of exploratory
ideas and assessments, free from the glare of publicity and pressure by interested
parties, is essential to protect the independence of decision-making of those tasked
to exercise Presidential, Legislative and Judicial power. This is not the situation in
the instant case.303 (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section


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

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

E.O 464 likewise violates the constitutional provision on the right to


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

To the extent that investigations in aid of legislation are generally conducted in


public, however, any executive issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to information which they
can use in formulating their own opinions on the matter before Congress —
opinions which they can then communicate to their representatives and other
government officials through the various legal means allowed by their freedom of
expression. Thus holds Valmonte v. Belmonte:
303
Supra note 82 at 189.
185

It is in the interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be responsive to
the people’s will. Yet, this open dialogue can be effective only to the extent that
the citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit. 304 (Emphasis and underscoring
supplied)

The impairment of the right of the people to information as a consequence


of E.O. 464 is, therefore, in the sense explained above, just as direct as its
violation of the legislature’s power of inquiry.

The implementation of Proc. 464 before it was published in the Official


Gazette as illegal. Due process thus requires that the people should have been
apprised of this issuance before it was implemented. This is clear from the
doctrine laid down in the case of TANADA VS. TUVERA.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b)


and 3 of Executive Order No. 464 (series of 2005), “ENSURING OBSERVANCE
OF THE PRINCIPLE OF SEPARATION OF POWERS, ADHERENCE TO THE
RULE ON EXECUTIVE PRIVILEGE AND RESPECT FOR THE RIGHTS OF
PUBLIC OFFICIALS APPEARING IN LEGISLATIVE INQUIRIES IN AID OF
LEGISLATION UNDER THE CONSTITUTION, AND FOR OTHER
PURPOSES,” are declared VOID.

Bengzon, Jr. vs. Senate Blue Ribbon Committee, Nov. 20, 1991

This is a petition for prohibition with prayer for the issuance of a temporary
restraining order and/or injunctive relief, to enjoin the respondent Senate Blue
Ribbon committee from requiring the petitioners to testify and produce evidence
at its inquiry into the alleged sale of the equity of Benjamin "Kokoy" Romualdez
to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations.

Coming to the specific issues raised in this case, petitioners contend that (1)
the Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e.,
it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez
corporations is a "purely private transaction" which is beyond the power of the
Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their
right to due process.

The 1987 Constitution expressly recognizes the power of both houses of


Congress to conduct inquiries in aid of legislation. 1Thus, Section 21, Article VI
thereof provides:

The Senate or the House of Representatives or any of its respective


committee may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.

The power of both houses of Congress to conduct inquiries in aid of


legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by
304
G.R. No. 74930, February 13, 1989, 170 SCRA 256.
186

the afore-quoted provision of the Constitution. Thus, as provided therein, the


investigation must be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in or affected by such
inquiries shall be respected." It follows then that the rights of persons under the
Bill of Rights must be respected, including the right to due process and the right
not to be compelled to testify against one's self.

The power to conduct formal inquiries or investigations in specifically


provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in
Aid of Legislation. Such inquiries may refer to the implementation or re-
examination of any law or in connection with any proposed legislation or the
formulation of future legislation. They may also extend to any and all matters
vested by the Constitution in Congress and/or in the Seante alone.

As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be


within the jurisdiction of the legislative body making it, must be material or
necessary to the exercise of a power in it vested by the Constitution, such as to
legislate or to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any
committee or committees any speech or resolution filed by any Senator which in
its judgment requires an appropriate inquiry in aid of legislation. In order
therefore to ascertain the character or nature of an inquiry, resort must be had to
the speech or resolution under which such an inquiry is proposed to be made.

A perusal of the speech of Senator Enrile reveals that he (Senator Enrile)


made a statement which was published in various newspapers on 2 September
1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group
of Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator
Enrile on 4 September 1988 categorically denying that he had "taken over " the
FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself
categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31
August 1988 that there has been no takeover by him (Lopa); and that theses
repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as
they are malicious.

The Lopa reply prompted Senator Enrile, during the session of the Senate on
13 September 1988, to avail of the privilege hour, 17 so that he could repond to
the said Lopa letter, and also to vindicate his reputation as a Member of the Senate
of the Philippines, considering the claim of Mr. Lopa that his (Enrile's) charges
that he (Lopa) had taken over the FMMC Group of Companies are "baseless" and
"malicious." Thus, in his speech, 18 Senator Enrile said, among others, as follows:

It appeals, therefore, that the contemplated inquiry by respondent


Committee is not really "in aid of legislation" because it is not related to a purpose
within the jurisdiction of Congress, since the aim of the investigation is to find out
whether or not the relatives of the President or Mr. Ricardo Lopa had violated
Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a matter that
appears more within the province of the courts rather than of the legislature.
Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the
pendency of this case. In John T. Watkins vs. United States, 20 it was held :

... The power of congress to conduct investigations in inherent in the legislative


process. That power is broad. it encompasses inquiries concerning the
administration of existing laws as well as proposed, or possibly needed statutes. It
187

includes surveys of defects in our social, economic, or political system for the
purpose of enabling Congress to remedy them. It comprehends probes into
departments of the Federal Government to expose corruption, inefficiency or
waste. But broad as is this power of inquiry, it is not unlimited. There is no general
authority to expose the private affairs of individuals without justification in terms
of the functions of congress. This was freely conceded by Solicitor General in his
argument in this case. Nor is the Congress a law enforcement or trial agency.
These are functions of the executive and judicial departments of government. No
inquiry is an end in itself; it must be related to and in furtherance of a legitimate
task of Congress. Investigations conducted solely for the personal
aggrandizement of the investigators or to "punish" those investigated are
indefensible. (emphasis supplied)

Broad as it is, the power is not, however, without limitations. Since congress may
only investigate into those areas in which it may potentially legislate or
appropriate, it cannot inquire into matters which are within the exclusive province
of one of the other branches of the government. Lacking the judicial power given
to the Judiciary, it cannot inquire into mattes that are exclusively the concern of
the Judiciary. Neither can it supplant the Executive in what exclusively belongs to
the Executive. ...

Moreover, this right of the accused is extended to respondents in administrative


investigations but only if they partake of the nature of a criminal proceeding or
analogous to a criminal proceeding. In Galman vs. Pamaran, 26 the Court
reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right
of witnesses to invoke the right against self-incrimination not only in criminal
proceedings but also in all other types of suit

We do not here modify these doctrines. If we presently rule that petitioners may
not be compelled by the respondent Committee to appear, testify and produce
evidence before it, it is only because we hold that the questioned inquiry is not in
aid of legislation and, if pursued, would be violative of the principle of separation
of powers between the legislative and the judicial departments of government,
ordained by the Constitution.

Investigation in aid of legislation; Executive Privilege

ROMULO L. NERI VS. SENATE COMMITTEE ON ACCOUNTABILITY


OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE
ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, G.R. No. 180643, March 25, 2008

LEONARDO-DE CASTRO, J. (En Banc)

THE FACTS:

On April 21, 2007, the Department of Transportation and Communication


(DOTC) entered into a contract with Zhong Xing Telecommunications Equipment
(ZTE) for the supply of equipment and services for the National Broadband
Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16
Billion Pesos). The Project was to be financed by the People’s Republic of China.
In connection with this NBN Project, various Resolutions were introduced in the
Senate.
188

At the same time, the investigation was claimed to be relevant to the


consideration of three (3) pending bills in the Senate.

Respondent Committees initiated the investigation by sending invitations to


certain personalities and cabinet officials involved in the NBN Project.
Petitioner was among those invited. He was summoned to appear and testify on
September 18, 20, and 26 and October 25, 2007. However, he attended only the
September 26 hearing, claiming he was “out of town” during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified
that several high executive officials and power brokers were using their influence
to push the approval of the NBN Project by the NEDA. It appeared that the
Project was initially approved as a Build-Operate-Transfer (BOT) project but, on
March 29, 2007, the NEDA acquiesced to convert it into a government-to-
government project, to be financed through a loan from the Chinese Government.

On September 26, 2007, petitioner testified before respondent Committees


for eleven (11) hours. He disclosed that then Commission on Elections
(COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange
for his approval of the NBN Project. He further narrated that he informed
President Arroyo about the bribery attempt and that she instructed him not to
accept the bribe. However, when probed further on what they discussed about the
NBN Project, petitioner refused to answer, invoking “executive privilege”. In
particular, he refused to answer the questions on (a) whether or not President
Arroyo followed up the NBN Project, 305[6] (b) whether or not she directed him to
prioritize it,306[7] and (c) whether or not she directed him to approve. 307[8]

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to


petitioner, requiring him to appear and testify on November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary


Eduardo R. Ermita requested respondent Committees to dispense with petitioner’s
testimony on the ground of executive privilege. The pertinent portion of the
letter reads:

With reference to the subpoena ad testificandum issued to Secretary Romulo


Neri to appear and testify again on 20 November 2007 before the Joint
Committees you chair, it will be recalled that Sec. Neri had already testified and
exhaustively discussed the ZTE / NBN project, including his conversation with
the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri
asked for time to consult with his superiors in line with the ruling of the Supreme
Court in Senate v. Ermita, 488 SCRA 1 (2006).

Specifically, Sec. Neri sought guidance on the possible invocation of


executive privilege on the following questions, to wit:

a) Whether the President followed up the (NBN) project?


b) Were you dictated to prioritize the ZTE?
c) Whether the President said to go ahead and approve the project after being
told about the alleged bribe?

305[6]
Transcript of the September 26, 2007 Hearing of the respondent Committees, pp.91-92.
306[7]
Id., pp. 114-115.
307[8]
Id., pp. 276-277.
189

Following the ruling in Senate v. Ermita, the foregoing questions fall under
conversations and correspondence between the President and public officials
which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23
May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002).

The context in which executive privilege is being invoked is that the


information sought to be disclosed might impair our diplomatic as well as
economic relations with the People’s Republic of China.

In light of the above considerations, this Office is constrained to invoke the


settled doctrine of executive privilege as refined in Senate v. Ermita, and has
advised Secretary Neri accordingly.

On November 20, 2007, petitioner did not appear before respondent


Committees. Thus, on November 22, 2007, the latter issued the show cause
Letter requiring him to explain why he should not be cited in contempt. The
Letter reads:

Since you have failed to appear in the said hearing, the Committees on
Accountability of Public Officers and Investigations (Blue Ribbon), Trade and
Commerce and National Defense and Security require you to show cause why you
should not be cited in contempt under Section 6, Article 6 of the Rules of the
Committee on Accountability of Public Officers and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees,


manifesting that it was not his intention to ignore the Senate hearing and that he
thought the only remaining questions were those he claimed to be covered by
executive privilege, thus:

It was not my intention to snub the last Senate hearing. In fact, I have
cooperated with the task of the Senate in its inquiry in aid of legislation as shown
by my almost 11 hours stay during the hearing on 26 September 2007. During
said hearing, I answered all the questions that were asked of me, save for those
which I thought was covered by executive privilege, and which was confirmed by
the Executive Secretary in his Letter 15 November 2007. In good faith, after that
exhaustive testimony, I thought that what remained were only the three questions,
where the Executive Secretary claimed executive privilege. Hence, his request
that my presence be dispensed with.

In addition, petitioner submitted a letter prepared by his counsel, Atty.


Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-
appearance was upon the order of the President; and (2) his conversation with
President Arroyo dealt with delicate and sensitive national security and diplomatic
matters relating to the impact of the bribery scandal involving high government
officials and the possible loss of confidence of foreign investors and lenders in the
Philippines. The letter ended with a reiteration of petitioner’s request that he “be
furnished in advance” as to what else he needs to clarify so that he may
adequately prepare for the hearing.

On December 7, 2007, petitioner filed with this Court the


present petition for certiorari assailing the show cause Letter dated
November 22, 2007.
190

Respondent Committees found petitioner’s explanations


unsatisfactory. Without responding to his request for advance notice
of the matters that he should still clarify, they issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees
and ordering his arrest and detention at the Office of the Senate
Sergeant-At-Arms until such time that he would appear and give his
testimony. The said Order states:

ORDER

For failure to appear and testify in the Committee’s


hearing on Tuesday, September 18, 2007; Thursday,
September 20, 2007; Thursday, October 25, 2007; and
Tuesday, November 20, 2007, despite personal notice and
Subpoenas Ad Testificandum sent to and received by him,
which thereby delays, impedes and obstructs, as it has in
fact delayed, impeded and obstructed the inquiry into the
subject reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt
(Neri letter of 29 November 2007), herein attached)
ROMULO L. NERI is hereby cited in contempt of this
(sic) Committees and ordered arrested and detained in
the Office of the Senate Sergeant-At-Arms until such
time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out


and implement this Order and make a return hereof within
twenty four (24) hours from its enforcement.

On the same date, petitioner moved for the reconsideration of the


above Order.308[9] He insisted that he has not shown “any contemptible
conduct worthy of contempt and arrest.” He emphasized his
willingness to testify on new matters, however, respondent
Committees did not respond to his request for advance notice of
questions. He also mentioned the petition for certiorari he filed on
December 7, 2007. According to him, this should restrain respondent
Committees from enforcing the show cause Letter “through the
issuance of declaration of contempt” and arrest.

In view of respondent Committees’ issuance of the contempt


Order, petitioner filed on February 1, 2008 a Supplemental Petition
for Certiorari (With Urgent Application for TRO/Preliminary
Injunction), seeking to restrain the implementation of the said
contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order


(a) enjoining respondent Committees from implementing their
contempt Order, (b) requiring the parties to observe the status quo
prevailing prior to the issuance of the assailed order, and (c)
requiring respondent Committees to file their comment.

Petitioner contends that respondent Committees’ show cause


Letter and contempt Order were issued with grave abuse of
308 [9]
See Letter dated January 30, 2008.
191

discretion amounting to lack or excess of jurisdiction. He stresses


that his conversations with President Arroyo are “candid discussions
meant to explore options in making policy decisions.” According to
him, these discussions “dwelt on the impact of the bribery scandal
involving high government officials on the country’s diplomatic
relations and economic and military affairs and the possible loss of
confidence of foreign investors and lenders in the Philippines.” He
also emphasizes that his claim of executive privilege is upon the order
of the President and within the parameters laid down in Senate v.
Ermita309[10] and United States v. Reynolds.310[11] Lastly, he argues that
he is precluded from disclosing communications made to him in
official confidence under Section 7 311[12] of Republic Act No. 6713,
otherwise known as Code of Conduct and Ethical Standards for
Public Officials and Employees, and Section 24312[13] (e) of Rule 130 of
the Rules of Court.

Respondent Committees assert the contrary. They argue that


(1) petitioner’s testimony is material and pertinent in the investigation
conducted in aid of legislation; (2) there is no valid justification for
petitioner to claim executive privilege; (3) there is no abuse of their
authority to order petitioner’s arrest; and (4) petitioner has not come to
court with clean hands.

I S S U E S:

1. What communications between the President and


petitioner Neri are covered by the principle of
‘executive privilege’?

1.a Did Executive Secretary Ermita correctly invoke the


principle of executive privilege, by order of the
President, to cover (i) conversations of
the President in the exercise of her executive and
policy decision-making and (ii) information, which
might impair our diplomatic as well as economic
relations with the People’s Republic of China?

1.b. Did petitioner Neri correctly invoke executive


privilege to avoid testifying on his conversations
with the President on the NBN contract on his
assertions that the said conversations “dealt with
delicate and sensitive national security and
diplomatic matters relating to the impact of
bribery scandal involving high government
officials and the possible loss of confidence of
foreign investors and lenders in the Philippines” x

309 [10]
488 SCRA 1 (2006).
310 [11]
345 U.S. 1 (1953).
311[12]
Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official
and employee and are hereby declared to be unlawful: x x x
(c) Disclosure and/or misuse of confidential information. -
Public officials and employees shall not use or divulge, confidential or classified information officially known to them
by reason of their office and not made available to the public, either:
(1) To further their private interests, or give undue advantage to anyone; or
(2) To prejudice the public interest.
312[13]
SEC. 24. Disqualification by reason of privileged communication. – The following persons cannot testify as to matters
learned in confidence in the following cases. (e) A public officer cannot be examined during his term of office or afterwards, as to
communications made to him in official confidence, when the court finds that the public interest would suffer by disclosure.
192

x x within the principles laid down in Senate v.


Ermita (488 SCRA 1 [2006])?

1.c Will the claim of executive privilege in this case


violate the following provisions of the Constitution:

Sec. 28, Art. II (Full public disclosure of all


transactions involving public interest)

Sec. 7, Art. III (The right of the people to


information on matters of public concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the
laws be faithfully executed)

and the due process clause and the principle of


separation of powers?

2. What is the proper procedure to be followed in invoking


executive privilege?

3. Did the Senate Committees gravely abuse their


discretion in ordering the arrest of petitioner for non-
compliance with the subpoena?

H E L D:

At the core of this controversy are the two (2) crucial queries, to
wit:

First, are the communications elicited by the subject three (3)


questions covered by executive privilege?

And second, did respondent Committees commit grave abuse of


discretion in issuing the contempt Order?

There is merit in the petition.

At the outset, a glimpse at the landmark case of Senate v.


Ermita313[18] becomes imperative. Senate draws in bold strokes the
distinction between the legislative and oversight powers of the
Congress, as embodied under Sections 21 and 22, respectively, of
Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of


Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be
respected.

SECTION 22. The heads of department may upon


313 [18]
Supra.
193

their own initiative, with the consent of the President, or


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

Senate cautions that while the above provisions are closely


related and complementary to each other, they should not be
considered as pertaining to the same power of Congress. Section 21
relates to the power to conduct inquiries in aid of legislation. Its aim
is to elicit information that may be used for legislation. On the other
hand, Section 22 pertains to the power to conduct a question hour, the
objective of which is to obtain information in pursuit of Congress’
oversight function.314[19] Simply stated, while both powers allow
Congress or any of its committees to conduct inquiry, their objectives
are different.

This distinction gives birth to another distinction with regard to


the use of compulsory process. Unlike in Section 21, Congress cannot
compel the appearance of executive officials under Section 22. The
Court’s pronouncement in Senate v. Ermita315[20] is clear:

When Congress merely seeks to be informed on how


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

The Communications Elicited by the Three


(3) Questions are Covered by Executive
Privilege

We start with the basic premises where the parties have


conceded.

The power of Congress to conduct inquiries in aid of legislation


is broad. This is based on the proposition that a legislative body
cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect or
314 [19]
Ibid.
315 [20]
Ibid.
194

change.316[21] Inevitably, adjunct thereto is the compulsory process to


enforce it. But, the power, broad as it is, has limitations. To be valid,
it is imperative that it is done in accordance with the Senate or House
duly published rules of procedure and that the rights of the persons
appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way
for them to be exempted is through a valid claim of executive
privilege.317[22] This directs us to the consideration of the question -- is
there a recognized claim of executive privilege despite the
revocation of E.O. 464?

A- There is a Recognized Claim


of Executive Privilege Despite
the
Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O.


464 does not in any way diminish our concept of executive privilege.
This is because this concept has Constitutional underpinnings. Unlike
the United States which has further accorded the concept with
statutory status by enacting the Freedom of Information Act318[23] and
the Federal Advisory Committee Act,319[24] the Philippines has
retained its constitutional origination, occasionally interpreted only by
this Court in various cases. The most recent of these is the case of
Senate v. Ermita where this Court declared unconstitutional
substantial portions of E.O. 464. In this regard, it is worthy to note
that Executive Ermita’s Letter dated November 15, 2007 limits its
bases for the claim of executive privilege to Senate v. Ermita,
Almonte v. Vasquez,320[25] and Chavez v. PEA.321[26] There was never a
mention of E.O. 464.

While these cases, especially Senate v. Ermita,322[27] have


comprehensively discussed the concept of executive privilege, we
deem it imperative to explore it once more in view of the clamor for
this Court to clearly define the communications covered by executive
privilege.

The Nixon and post-Watergate cases established the broad


contours of the presidential communications privilege.323[28] In
324[29]
United States v. Nixon, the U.S. Court recognized a great public
interest in preserving “the confidentiality of conversations that take
place in the President’s performance of his official duties.” It thus
considered presidential communications as “presumptively
privileged.” Apparently, the presumption is founded on the
“President’s generalized interest in confidentiality.” The privilege
is said to be necessary to guarantee the candor of presidential advisors
and to provide “the President and those who assist him… with
freedom to explore alternatives in the process of shaping policies
316 [21]
Arnault v. Nazareno, 87 Phil 32 (1950)
317 [22]
Senate v. Ermita, p. 58.
318[23]
5 U.S. C. § 552
319 [24]
51 U.S. C. app.
320[25]
433 Phil. 506 (2002).
321 [26]
G.R. No. 130716, December 9, 1998, (360 SCRA 132 ).
322[27]
Supra.
323 [28]
CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent
Developments at p. 2.
324[29]
418 U.S. 683.
195

and making decisions and to do so in a way many would be


unwilling to express except privately.”

In In Re: Sealed Case,325[30] the U.S. Court of Appeals delved


deeper. It ruled that there are two (2) kinds of executive privilege;
one is the presidential communications privilege and, the other is
the deliberative process privilege. The former pertains to
“communications, documents or other materials that reflect
presidential decision-making and deliberations and that the
President believes should remain confidential.” The latter includes
‘advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions
and policies are formulated.”

Accordingly, they are characterized by marked distinctions.


Presidential communications privilege applies to decision-making
of the President while, the deliberative process privilege, to
decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the President’s
unique constitutional role; the second on common law
privilege. Unlike the deliberative process privilege, the
presidential communications privilege applies to documents in
their entirety, and covers final and post-decisional materials as
well as pre-deliberative ones326[31] As a consequence, congressional
or judicial negation of the presidential communications privilege is
always subject to greater scrutiny than denial of the deliberative
process privilege.

Turning on who are the officials covered by the presidential


communications privilege, In Re: Sealed Case confines the
privilege only to White House Staff that has “operational proximity” to
direct presidential decision-making. Thus, the privilege is meant to
encompass only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential and
non-delegable Presidential power,” such as commander-in-chief
power, appointment and removal power, the power to grant pardons
and reprieves, the sole-authority to receive ambassadors and other
public officers, the power to negotiate treaties, etc. 327[32]

Majority of the above jurisprudence have found their way in our


jurisdiction. In Chavez v. PCGG328[38], this Court held that there is a
“governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other security matters.” In
Chavez v. PEA,329[39] there is also a recognition of the confidentiality of
Presidential conversations, correspondences, and discussions in
closed-door Cabinet meetings. In Senate v. Ermita, the concept of
presidential communications privilege is fully discussed.

As may be gleaned from the above discussion, the claim of


executive privilege is highly recognized in cases where the subject of
inquiry relates to a power textually committed by the Constitution to
325[30]
In Re: Sealed Case No. 96-3124, June 17, 1997.
326[31]
Id.
327[32]
CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments at
pp. 18-19.
328 [38]
360 Phil. 133 (1998).
329[39]
Supra.
196

the President, such as the area of military and foreign relations. Under
our Constitution, the President is the repository of the commander-in-
chief,330[40] appointing,331[41] pardoning,332[42] and diplomatic333[43]
powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality
than others.

The above cases, especially, Nixon, In Re Sealed Case and


Judicial Watch, somehow provide the elements of presidential
communications privilege, to wit:
1) The protected communication must relate to a
“quintessential and non-delegable presidential
power.”

2) The communication must be authored or “solicited


and received” by a close advisor of the President or
the President himself. The judicial test is that an
advisor must be in “operational proximity” with the
President.

3) The presidential communications privilege


remains a qualified privilege that may be overcome by
a showing of adequate need, such that the information
sought “likely contains important evidence” and by
the unavailability of the information elsewhere by an
appropriate investigating authority.334[44]

In the case at bar, Executive Secretary Ermita premised his claim


of executive privilege on the ground that the communications elicited
by the three (3) questions “fall under conversation and
correspondence between the President and public officials” necessary
in “her executive and policy decision-making process” and, that “the
information sought to be disclosed might impair our diplomatic as well
as economic relations with the People’s Republic of China.” Simply
put, the bases are presidential communications privilege and
executive privilege on matters relating to diplomacy or foreign
relations.

Using the above elements, we are convinced that, indeed, the


communications elicited by the three (3) questions are covered by the
presidential communications privilege. First, the communications
relate to a “quintessential and non-delegable power” of the President,
i.e. the power to enter into an executive agreement with other
countries. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. 335[45]
Second, the communications are “received” by a close advisor of the
President. Under the “operational proximity” test, petitioner can be
considered a close advisor, being a member of President Arroyo’s
cabinet. And third, there is no adequate showing of a compelling need
330 [40]
Section 18, Article VII.
331 [41]
Section 16, Article VII.
332 [42]
Section 19, Article VII.
333 [43]
Section 20 and 21, Article VII.
334[44]
CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law Practice and Recent Developments,
supra..
335[45]
Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 2003 Ed. p. 903.
197

that would justify the limitation of the privilege and of the


unavailability of the information elsewhere by an appropriate
investigating authority.

The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is


subject to balancing against other interest. In other words,
confidentiality in executive privilege is not absolutely protected by
the Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need


for confidentiality of high-level communications, without
more, can sustain an absolute, unqualified Presidential
privilege of immunity from judicial process under all
circumstances.

The foregoing is consistent with the earlier case of Nixon v.


Sirica,336[46] where it was held that presidential communications are
presumptively privileged and that the presumption can be overcome
only by mere showing of public need by the branch seeking access to
conversations. The courts are enjoined to resolve the competing
interests of the political branches of the government “in the manner
that preserves the essential functions of each Branch.” 337[47] Here, the
record is bereft of any categorical explanation from respondent
Committees to show a compelling or citical need for the answers to
the three (3) questions in the enactment of a law. Instead, the
questions veer more towards the exercise of the legislative oversight
function under Section 22 of Article VI rather than Section 21 of the
same Article. Senate v. Ermita ruled that the “the oversight
function of Congress may be facilitated by compulsory process
only to the extent that it is performed in pursuit of legislation.”
It is conceded that it is difficult to draw the line between an inquiry
in aid of legislation and an inquiry in the exercise of oversight
function of Congress. In this regard, much will depend on the content
of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege


does not guard against a possible disclosure of a crime or wrongdoing.
We see no dispute on this. It is settled in United States v. Nixon338[48]
that “demonstrated, specific need for evidence in pending criminal
trial” outweighs the President’s “generalized interest in
confidentiality.” However, the present case’s distinction with the
Nixon case is very evident. In Nixon, there is a pending criminal
proceeding where the information is requested and it is the demands
of due process of law and the fair administration of criminal justice
that the information be disclosed. This is the reason why the U.S.
Court was quick to “limit the scope of its decision.” It stressed
that it is “not concerned here with the balance between the
President’s generalized interest in confidentiality x x x and
congressional demands for information.” Unlike in Nixon, the
information here is elicited, not in a criminal proceeding, but in a
legislative inquiry. In this regard, Senate v. Ermita stressed that the
336 [46]
159 U.S. App. DC. 58, 487 F. 2d 700 (D.C. Cir. 1973).
337[47]
U.S. v. Nixon, 418 U.S. 683 (1974)
338 [48]
Supra.
198

validity of the claim of executive privilege depends not only on the


ground invoked but, also, on the procedural setting or the context in
which the claim is made. Furthermore, in Nixon, the President did not
interpose any claim of need to protect military, diplomatic or sensitive
national security secrets. In the present case, Executive Secretary
Ermita categorically claims executive privilege on the grounds of
presidential communications privilege in relation to her executive
and policy decision-making process and diplomatic secrets.

Respondent Committees further contend that the grant of


petitioner’s claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of
public concern.339[50] We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where he
was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the
Senators, with the exception only of those covered by his claim of
executive privilege.

The right to public information, like any other right, is subject to


limitation. Section 7 of Article III provides:

The right of the people to information on matters of


public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may
be provided by law.

The provision itself expressly provides the limitation, i.e. as


may be provided by law. Some of these laws are Section 7
of Republic Act (R.A.) No. 6713,340[51] Article 229341[52] of the
Revised Penal Code, Section 3 (k) 342[53] of R.A. No. 3019, and
Section 24(e)343[54] of Rule 130 of the Rules of Court. These are in
addition to what our body of jurisprudence classifies as
confidential344[55] and what our Constitution considers as belonging to
339 [50]
Citing Section 7, Article 3 of the Constitution.
340[51]
Section 7. Prohibited Acts and Transactions. – In addition to acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official
and employee and are hereby declared to be unlawful: x x x
( c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge,
confidential or classified information officially known to them by reason of their office and not made available to the public,
either:
To further their private interests, or give undue advantage to anyone; or
To prejudice the public interest.
341[52]
Article 229. Revelation of secrets by an officer. – Any public officer who shall reveal any secret known to him by
reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which
should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual
special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall
have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period,
temporary special disqualification and a fine not exceeding 500 pesos shall be imposed.
342 [53]
Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such information in advance of its authorized release date.
343[54]
Sec. 24. Disqualification by reason of privileged communications. – The following persons cannot testify as to
matters learned in confidence in the following case: x x x
(a) A public officer cannot be examined during his term of office or afterwards, as to communications made to him
in official confidence, when the court finds that the public interest would suffer by the disclosure.
344[55]
In Chavez v. Public Estates Authority, supra., the Supreme Court recognized matters which the Court has long considered as
confidential such as “information on military and diplomatic secrets, information affecting national security, and information on
investigations of crimes by law enforcement agencies before the prosecution of the accused.” It also stated that “presidential
199

the larger concept of executive privilege. Clearly, there is a


recognized public interest in the confidentiality of certain information.
We find the information subject of this case belonging to such kind.

More than anything else, though, the right of Congress or any of


its Committees to obtain information in aid of legislation cannot be
equated with the people’s right to public information. The former
cannot claim that every legislative inquiry is an exercise of the
people’s right to information. The distinction between such rights is
laid down in Senate v. Ermita:

There are, it bears noting, clear distinctions between the


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

Thus, while Congress is composed of representatives


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

The members of respondent Committees should not invoke as


justification in their exercise of power a right properly belonging to the
people in general. This is because when they discharge their power,
they do so as public officials and members of Congress. Be that as it
may, the right to information must be balanced with and should give
way, in appropriate cases, to constitutional precepts particularly those
pertaining to delicate interplay of executive-legislative powers and
privileges which is the subject of careful review by numerous decided
cases.

B- The Claim of Executive Privilege


is Properly Invoked

We now proceed to the issue -- whether the claim is properly


invoked by the President. Jurisprudence teaches that for the claim to
be properly invoked, there must be a formal claim of privilege, lodged
by the head of the department which has control over the matter.” 345[56]
A formal and proper claim of executive privilege requires a “precise
and certain reason” for preserving their confidentiality. 346[57]

The Letter dated November 17, 2007 of Executive Secretary


Ermita satisfies the requirement. It serves as the formal claim of
conversations, correspondences, or discussions during close-door cabinet meetings which, like internal deliberations of the Supreme
Court or other collegiate courts, or executive sessions of either House of Congress, are recognized as confidential. Such information
cannot be pried-open by a co-equal branch of government.
345 [56]
United States v. Reynolds, supra..
346 [57]
Unites States v. Article of Drug, 43 F.R.D. at 190.
200

privilege. There, he expressly states that “this Office is constrained


to invoke the settled doctrine of executive privilege as refined in
Senate v. Ermita, and has advised Secretary Neri accordingly.”
Obviously, he is referring to the Office of the President. That is more
than enough compliance. In Senate v. Ermita, a less categorical letter
was even adjudged to be sufficient.

With regard to the existence of “precise and certain reason,”


we find the grounds relied upon by Executive Secretary Ermita
specific enough so as not “to leave respondent Committees in the dark
on how the requested information could be classified as privileged.”
The case of Senate v. Ermita only requires that an allegation be made
“whether the information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.” The particular ground
must only be specified. The enumeration is not even intended to be
comprehensive.”347[58] The following statement of grounds satisfies the
requirement:

The context in which executive privilege is being invoked


is that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the
People’s Republic of China. Given the confidential nature
in which these information were conveyed to the President,
he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the
privilege is designed to protect.

At any rate, as held further in Senate v. Ermita, 348[59] the


Congress must not require the executive to state the reasons for the
claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect. This is a matter of
respect to a coordinate and co-equal department.

II
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt
Order

It must be reiterated that when respondent Committees issued the


show cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions were
the three (3) questions he claimed to be covered by executive
privilege. In addition thereto, he submitted Atty. Bautista’s letter,
stating that his non-appearance was upon the order of the President
and specifying the reasons why his conversations with President
Arroyo are covered by executive privilege. Both correspondences
include an expression of his willingness to testify again, provided
he “be furnished in advance” copies of the questions. Without
responding to his request for advance list of questions, respondent
Committees issued the Order dated January 30, 2008, citing him in
contempt of respondent Committees and ordering his arrest and
detention at the Office of the Senate Sergeant-At-Arms until such time
that he would appear and give his testimony. Thereupon, petitioner
347[58]
Senate v. Ermita, supra., p. 63.
348 [59]
Id., citing U.S. v. Reynolds, 345 U.S. 1, 73 S. Ct. 528, 97 L. Ed. 727, 32 A.L. R. 2d 382 (1953).
201

filed a motion for reconsideration, informing respondent Committees


that he had filed the present petition for certiorari.

Respondent Committees committed grave abuse of discretion in


issuing the contempt Order in view of five (5) reasons.

First, there being a legitimate claim of executive privilege, the


issuance of the contempt Order suffers from constitutional infirmity.

Second, respondent Committees did not comply with the


requirement laid down in Senate v. Ermita that the invitations should
contain the “possible needed statute which prompted the need for the
inquiry,” along with “the usual indication of the subject of inquiry
and the questions relative to and in furtherance thereof.”
Compliance with this requirement is imperative, both under Sections
21 and 22 of Article VI of the Constitution. This must be so to ensure
that the rights of both persons appearing in or affected by such
inquiry are respected as mandated by said Section 21 and by virtue of
the express language of Section 22. Unfortunately, despite petitioner’s
repeated demands, respondent Committees did not send him an
advance list of questions.

Third, a reading of the transcript of respondent Committees’


January 30, 2008 proceeding reveals that only a minority of the
members of the Senate Blue Ribbon Committee was present during the
deliberation. 349[61] Section 18 of the Rules of Procedure Governing
Inquiries in Aid of Legislation provides that:

“The Committee, by a vote of majority of all its


members, may punish for contempt any witness before it
who disobeys any order of the Committee or refuses to be
sworn or to testify or to answer proper questions by the
Committee or any of its members.”

Clearly, the needed vote is a majority of all the members of the


Committee. Apparently, members who did not actually participate in
the deliberation were made to sign the contempt Order. Thus, there is
a cloud of doubt as to the validity of the contempt Order dated January
30, 2008.

Fourth, we find merit in the argument of the OSG that


respondent Committees likewise violated Section 21 of Article VI of
the Constitution, requiring that the inquiry be in accordance with the
“duly published rules of procedure.” We quote the OSG’s
explanation:

The phrase ‘duly published rules of procedure’


requires the Senate of every Congress to publish its rules
of procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it or
after it. Since Senatorial elections are held every three (3)
years for one-half of the Senate’s membership, the
composition of the Senate also changes by the end of each
term. Each Senate may thus enact a different set of rules as
349[61]
Trancript of the January 30, 2008 proceedings, p. 29.
202

it may deem fit. Not having published its Rules of


Procedure, the subject hearings in aid of legislation
conducted by the 14th Senate, are therefore,
procedurally infirm.

And fifth, respondent Committees’ issuance of the contempt


Order is arbitrary and precipitate. It must be pointed out that
respondent Committees did not first pass upon the claim of executive
privilege and inform petitioner of their ruling. Instead, they curtly
dismissed his explanation as “unsatisfactory” and simultaneously
issued the Order citing him in contempt and ordering his immediate
arrest and detention.

A fact worth highlighting is that petitioner is not an unwilling


witness. He manifested several times his readiness to testify before
respondent Committees. He refused to answer the three (3) questions
because he was ordered by the President to claim executive privilege.
It behooves respondent Committees to first rule on the claim of
executive privilege and inform petitioner of their finding thereon,
instead of peremptorily dismissing his explanation as “unsatisfactory.”
Undoubtedly, respondent Committees’ actions constitute grave
abuse of discretion for being arbitrary and for denying petitioner
due process of law. The same quality afflicted their conduct when
they (a) disregarded petitioner’s motion for reconsideration alleging
that he had filed the present petition before this Court and (b) ignored
petitioner’s repeated request for an advance list of questions, if there
be any aside from the three (3) questions as to which he claimed to be
covered by executive privilege.

Even the courts are repeatedly advised to exercise the power of


contempt judiciously and sparingly with utmost self-restraint with the
end in view of utilizing the same for correction and preservation of the
dignity of the court, not for retaliation or vindication. 350[63] Respondent
Committees should have exercised the same restraint, after all
petitioner is not even an ordinary witness. He holds a high position in
a co-equal branch of government.

In this regard, it is important to mention that many incidents of


judicial review could have been avoided if powers are discharged with
circumspection and deference. Concomitant with the doctrine of
separation of powers is the mandate to observe respect to a co-equal
branch of the government.

In this present crusade to “search for truth,” we should turn to


the fundamental constitutional principles which underlie our
tripartite system of government, where the Legislature enacts the
law, the Judiciary interprets it and the Executive implements it.
They are considered separate, co-equal, coordinate and supreme
within their respective spheres but, imbued with a system of checks
and balances to prevent unwarranted exercise of power. The Court’s
mandate is to preserve these constitutional principles at all times to
keep the political branches of government within constitutional
bounds in the exercise of their respective powers and prerogatives,
even if it be in the search for truth. This is the only way we can
350 [63]
Rodriguez v. Judge Bonifacio, A.M. No. RTJ-99-1510, November 6, 2000, 344 SCRA 519.
203

preserve the stability of our democratic institutions and uphold the


Rule of Law.

The respondents-Committees were therefore stopped from


calling the petitioner and ask the three(3) questions mentioned above
in connection with his conversations with the President being covered
by the “executive privilege” rule.

Power of Congress to conduct inquiries in aid


of legislation; Right to Privacy; Public
disclosure of government transactions; right to
information on matters of public concern;
accountability of public officers; and right
against self-incrimination;

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,


October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced


Philippine Senate Resolution No. 455 (Senate Res. No. 455), 351[4] “directing
an inquiry in aid of legislation on the anomalous losses incurred by the
Philippines Overseas Telecommunications Corporation (POTC), Philippine
Communications Satellite Corporation (PHILCOMSAT), and
PHILCOMSAT Holdings Corporation (PHC) due to the alleged
improprieties in their operations by their respective Board of Directors.”

On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority


of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the
PCGG, one of the herein petitioners, inviting him to be one of the resource
persons in the public meeting jointly conducted by the Committee on
Government Corporations and Public Enterprises and Committee on Public
Services. The purpose of the public meeting was to deliberate on Senate
Res. No. 455.352[6]

On May 9, 2006, Chairman Sabio declined the invitation because of


prior commitment.353[7] At the same time, he invoked Section 4(b) of
E.O. No. 1 earlier quoted.

Unconvinced with the above Compliance and Explanation, the


Committee on Government Corporations and Public Enterprises and the
Committee on Public Services issued an Order354[13] directing Major General
Jose Balajadia (Ret.), Senate Sergeant-At-Arms, to place Chairman Sabio
and his Commissioners under arrest for contempt of the Senate. The Order
bears the approval of Senate President Villar and the majority of the
Committees’ members.
351[4]
Annex “E” of the Petition in G.R. No. 174318.
352[6]
Annex “F” of the Petition in G.R. No. 174318.
353[7]
Annex “G” of the Petition in G.R. No. 174318.
354[13]
Annex “D” of the petition in G.R. No. 174318.
204

On September 12, 2006, at around 10:45 a.m., Major General


Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82
EDSA, Mandaluyong City and brought him to the Senate premises where he
was detained.

Hence, this petition.

I S S U E:

Crucial to the resolution of the present petitions is the fundamental


issue of whether Section 4(b) of E.O. No. 1 is repealed by the 1987
Constitution. On this lone issue hinges the merit of the contention of
Chairman Sabio and his Commissioners that their refusal to appear before
respondent Senate Committees is justified.

Ranged against it is Article VI, Section 21 of the 1987 Constitution


granting respondent Senate Committees the power of legislative inquiry. It
reads:

The Senate or the House of Representatives


or any of its respective committees may conduct
inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights
of persons appearing in or affected by such
inquiries shall be respected.

On the other arm of the scale is Section 4(b) of E.O. No.1 limiting
such power of legislative inquiry by exempting all PCGG members or staff
from testifying in any judicial, legislative or administrative proceeding, thus:

No member or staff of the Commission shall


be required to testify or produce evidence in any
judicial, legislative or administrative proceeding
concerning matters within its official cognizance.

The Congress’ power of inquiry has been recognized in foreign


jurisdictions long before it reached our shores through McGrain v.
Daugherty,355[15] cited in Arnault v. Nazareno.356[16] In those earlier days,
American courts considered the power of inquiry as inherent in the power
to legislate.

In Arnault, the Supreme Court adhered to a similar theory. Citing


McGrain, it recognized that the power of inquiry is “an essential and
appropriate auxiliary to the legislative function,” thus:
Although there is no provision in the “Constitution
expressly investing either House of Congress with power to
make investigations and exact testimony to the end that it may
355[15]
273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A.L.R. 1 (1927).
356[16]
No. L- 3820, 87 Phil. 29 (1950).
205

exercise its legislative functions advisedly and effectively, such


power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry – with process
to enforce it – is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot legislate wisely
or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or
change; and where the legislation body does not itself possess
the requisite information – which is not infrequently true –
recourse must be had to others who possess it.”

Dispelling any doubt as to the Philippine Congress’ power of inquiry,


provisions on such power made their maiden appearance in Article VIII,
Section 12 of the 1973 Constitution. 357[18] Then came the 1987 Constitution
incorporating the present Article VI, Section 12. What was therefore
implicit under the 1935 Constitution, as influenced by American
jurisprudence, became explicit under the 1973 and 1987 Constitutions.358[19]

Notably, the 1987 Constitution recognizes the power of investigation,


not just of Congress, but also of “any of its committee.” This is significant
because it constitutes a direct conferral of investigatory power upon the
committees and it means that the mechanisms which the Houses can take in
order to effectively perform its investigative function are also available to
the committees.359[20]

It can be said that the Congress’ power of inquiry has gained more
solid existence and expansive construal. The Court’s high regard to such
power is rendered more evident in Senate v. Ermita,360[21] where it
categorically ruled that “the power of inquiry is broad enough to cover
officials of the executive branch.” Verily, the Court reinforced the doctrine
in Arnault that “the operation of government, being a legitimate subject
for legislation, is a proper subject for investigation” and that “the power
of inquiry is co-extensive with the power to legislate.”

Considering these jurisprudential instructions, Section 4(b) is directly


repugnant with Article VI, Section 21. Section 4(b) exempts the PCGG
members and staff from the Congress’ power of inquiry. This cannot be
countenanced. Nowhere in the Constitution is any provision granting such
exemption. The Congress’ power of inquiry, being broad, encompasses
everything that concerns the administration of existing laws as well as
proposed or possibly needed statutes. 361[22] It even extends “to government
agencies created by Congress and officers whose positions are within the
power of Congress to regulate or even abolish.”362[23] PCGG belongs to
this class.

357[18]
Puno, Lecture on Legislative Investigations and the Right to Privacy, at p. 22.
358[19]
Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.737.
359[20]
Bernas S.J., The 1987 Constitution of the Republic of the Philippines, 2003 Ed. at p.739.
360[21]
G.R. No. 169777, April 20, 2006.
361[22]
Watkins v. United States, 354 U.S. 178 (1957), pp. 194-195.
362[23]
Senate v. Ermita, Id.
206

Certainly, a mere provision of law cannot pose a limitation to the


broad power of Congress, in the absence of any constitutional basis.

Furthermore, Section 4(b) is also inconsistent with Article XI,


Section 1 of the Constitution stating that: “Public office is a public trust.
Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.”

The provision presupposes that since an incumbent of a public office


is invested with certain powers and charged with certain duties pertinent to
sovereignty, the powers so delegated to the officer are held in trust for the
people and are to be exercised in behalf of the government or of all
citizens who may need the intervention of the officers. Such trust
extends to all matters within the range of duties pertaining to the office.
In other words, public officers are but the servants of the people, and
not their rulers.363[24]

Section 4(b), being in the nature of an immunity, is inconsistent with


the principle of public accountability. It places the PCGG members and
staff beyond the reach of courts, Congress and other administrative bodies.
Instead of encouraging public accountability, the same provision only
institutionalizes irresponsibility and non-accountability. In Presidential
Commission on Good Government v. Peña, 364[25] Justice Florentino P.
Feliciano characterized as “obiter” the portion of the majority opinion
barring, on the basis of Sections 4(a) and (b) of E.O. No. 1, a civil case for
damages filed against the PCGG and its Commissioners. He eloquently
opined:

The above underscored portions are, it is respectfully


submitted, clearly obiter. It is important to make clear that the
Court is not here interpreting, much less upholding as valid
and constitutional, the literal terms of Section 4 (a), (b) of
Executive Order No.1. If Section 4 (a) were given its literal
import as immunizing the PCGG or any member thereof from
civil liability “for anything done or omitted in the discharge of
the task contemplated by this Order,” the constitutionality of
Section 4 (a) would, in my submission, be open to most serious
doubt. For so viewed, Section 4 (a) would institutionalize the
irresponsibility and non-accountability of members and staff of
the PCGG, a notion that is clearly repugnant to both the 1973
and 1987 Constitution and a privileged status not claimed by any
other official of the Republic under the 1987 Constitution. x x
x.

x x x
It would seem constitutionally offensive to suppose that a
member or staff member of the PCGG could not be required
to testify before the Sandiganbayan or that such members
were exempted from complying with orders of this Court.
363[24]
De Leon, De Leon, Jr. The Law on Public Officers and Election Law, p. 2.
364[25]
No. L-77663, April 12, 1988, 159 SCRA 558.
207

Chavez v. Sandiganbayan365[26] reiterates the same view. Indeed,


Section 4(b) has been frowned upon by this Court even before the filing of
the present petitions.

NEGROS ORIENTAL II ELECTRIC COOPERATIVE


VS. SANGGUNIANG PANGLUNGSOD OF
DUMAGUETE CITY, G.R. No. 72492, Nov. 5, 1987,
155 SCRA 421

Petitioners contend that the respondent Sangguniang Panlungsod


of Dumaguete is bereft of the power to compel the attendance and
testimony of witnesses, nor the power to order the arrest of witnesses
who fail to obey its subpoena. It is further argued that assuming the
power to compel the attendance and testimony of witnesses to be
lodged in said body, it cannot be exercised in the investigation of
matters affecting the terms and conditions of the franchise granted to
NORECO II which are beyond the jurisdiction of the Sangguniang
Panlungsod.

Respondents, for their part, claim that inherent in the legislative


functions performed by the respondent Sangguniang Panlungsod is the
power to conduct investigations in aid of legislation and with it, the
power to punish for contempt in inquiries on matters within its
jurisdiction (Rollo, p. 46). It is also the position of the respondents that
the contempt power, if not expressly granted, is necessarily implied
from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-
49). Furthermore, the respondents assert that an inquiry into the
installation or use of inefficient power lines and its effect on the power
consumption cost on the part of Dumaguete residents is well-within
the jurisdiction of the Sangguniang Panlungsod and its committees.

1. A line should be drawn between the powers of Congress as the


repository of the legislative power under the Constitution, and those
that may be exercised by the legislative bodies of local government
unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere
creatures of law, possess delegated legislative power. While the
Constitution does not expressly vest Congress with the power to
punish non-members for legislative contempt, the power has
nevertheless been invoked by the legislative body as a means of
preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29
[1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that
courts wield an inherent power to "enforce their authority, preserve
their integrity, maintain their dignity, and ensure the effectiveness of
the administration of justice." (Commissioner v. Cloribel, 127 Phil.
716, 723 [1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases).
The exercise by Congress of this awesome power was questioned for
the first time in the leading case of Arnault v. Nazareno, (87 Phil. 29
[1950]) where this Court held that the legislative body indeed
possessed the contempt power.

But no person can be punished for contumacy as a witness


before either House, unless his testimony is required in a matter into
which that House has jurisdiction to inquire. (Kilbourn vs. Thompson,
26, L.ed., 377.)
365[26]
193 SCRA 282 (1991).
208

The principle that Congress or any of its bodies has the power to
punish recalcitrant witnesses is founded upon reason and policy. Said
power must be considered implied or incidental to the exercise of
legislative power. How could a legislative body obtain the knowledge
and information on which to base intended legislation if it cannot
require and compel the disclosure of such knowledge and information,
if it is impotent to punish a defiance of its power and authority? When
the framers of the Constitution adopted the principle of separation of
powers, making each branch supreme within the real of its respective
authority, it must have intended each department's authority to be full
and complete, independently of the other's authority or power. And
how could the authority and power become complete if for every act
of refusal every act of defiance, every act of contumacy against it, the
legislative body must resort to the judicial department for the
appropriate remedy, because it is impotent by itself to punish or deal
therewith, with the affronts committed against its authority or dignity. .
. (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370
[1955]).

The aforequoted pronouncements in the two Arnault cases,


supra, broke ground in what was then an unexplored area of
jurisprudence, and succeeded in supplying the raison d' etre of this
power of Congress even in the absence of express constitutional grant.
Whether or not the reasons for upholding the existence of said power
in Congress may be applied mutatis mutandis to a questioned exercise
of the power of contempt by the respondent committee of a city
council is the threshold issue in the present controversy.

3. The exercise by the legislature of the contempt power is a matter


of self-preservation as that branch of the government vested with the
legislative power, independently of the judicial branch, asserts its
authority and punishes contempts thereof. The contempt power of the
legislature is, therefore, sui generis, and local legislative bodies cannot
correctly claim to possess it for the same reasons that the national
legislature does. The power attaches not to the discharge of legislative
functions per se but to the character of the legislature as one of the
three independent and coordinate branches of government. The same
thing cannot be said of local legislative bodies which are creations of
law.

4. To begin with, there is no express provision either in the 1973


Constitution or in the Local Government Code (Batas Pambansa Blg.
337) granting local legislative bodies, the power to subpoena witnesses
and the power to punish non-members for contempt. Absent a
constitutional or legal provision for the exercise of these powers, the
only possible justification for the issuance of a subpoena and for the
punishment of non-members for contumacious behaviour would be for
said power to be deemed implied in the statutory grant of delegated
legislative power. But, the contempt power and the subpoena power
partake of a judicial nature. They cannot be implied in the grant of
legislative power. Neither can they exist as mere incidents of the
performance of legislative functions. To allow local legislative bodies
or administrative agencies to exercise these powers without express
statutory basis would run afoul of the doctrine of separation of powers.
209

These cannot be presumed to exist in favor of the latter and must


be considered as an exception to Sec. 4 of B.P. 337 which
provides for liberal rules of interpretation in favor of local
autonomy. Since the existence of the contempt power in
conjunction with the subpoena power in any government body
inevitably poses a potential derogation of individual rights, i.e.
compulsion of testimony and punishment for refusal to testify,
the law cannot be liberally construed to have impliedly granted
such powers to local legislative bodies. It cannot be lightly
presumed that the sovereign people, the ultimate source of all
government powers, have reposed these powers in all
government agencies. The intention of the sovereign people,
through their representatives in the legislature, to share these
unique and awesome powers with the local legislative bodies
must therefore clearly appear in pertinent legislation.

There being no provision in the Local Government Code


explicitly granting local legislative bodies, the power to issue
compulsory process and the power to punish for contempt, the
Sanggunian Panlungsod of Dumaguete is devoid of power to punish
the petitioners Torres and Umbac for contempt. The Ad-Hoc
Committee of said legislative body has even less basis to claim that it
can exercise these powers.

Sections 22. The heads of departments may upon their


own initiative, with the consent of the President, or
upon the request of either House, as the Rules of each
House shall provide, appear before and be heard by
such House on any matter pertaining to their
departments. Written questions shall be submitted to
the President of the Senate or the Speaker of the HR at
least 3 days before their scheduled appearance.
Interpellations shall not be limited to written questions,
but may not cover matter matters related thereto.
When the security of the State or the public interest so
requires and the President so states in writing, the
appearance shall be conducted in executive session.

Section 23 [1] The Congress, by a vote of 2/3 of both


Houses in a 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 a resolution of the Congress, such powers
shall cease upon the next adjournment thereof.

a. Note the limitations and restrictions for the delegation.

b. Note also that it could be withdrawn by mere resolution.


210

c. What is referred to by the phrase "next adjournment?"

d. Read:
1) ARANETA VS. DINGLASAN, 84 Phil. 369
- the first emergency powers cases
2) RODRIGUEZ VS. GELLA, 92 Phil. 603
- the second emergency powers cases.
3) Republic Act No. 6826, Dec.20, 1989 which grants emergency
powers to President Aquino.

Sections 24. All appropriations, revenue or tariff bills, bills authorizing


increase of the public debt, bills of local application, and private bills
shall originate exclusively in the House of representatives, but the
Senate may propose or concur with amendments.

NOTE: In Tolentino vs. Secretary of Finance, the Supreme Court held


that the E-VAT Law is constitutional even if the same was the VERSION
which came from the Senate, not from the House of Representatives. This is
so because the Senate is allowed to “propose amendments” to bills which
must exclusively originate from the House of Representatives.

Section 25 [1] The Congress may not increase the appropriation


recommended by the President for the operation of the government as
specified in the budget. The form, content, and manner of preparation
of the budget shall be prescribed by law.

[2 No provision or enactment shall be embraced in the general


appropriations bill unless it relates specifically to some particular
appropriation therein. Any provision or enactment shall be limited in
its operation to the appropriation to which it relates.

[3] The procedure in approving appropriations for the Congress


shall strictly follow the procedure for approving appropriations for
other departments and agencies.

[4] A special appropriations bill shall specify the purpose for


which it is intended, and shall be supported by funds actually available
as certified by the national treasurer, or to be raised by a corresponding
revenue proposal therein.

[5] No law shall be passed authorizing any transfer of


appropriations; however, the President, the President of the Senate, the
Speaker of the house of Representatives, the Chief justice of the
Supreme Court, and the heads of the constitutional commissions may,
by law, be authorized to augment any item in the general
appropriations law for their respective offices from savings in other
items of their respective appropriations.

[6] Discretionary funds appropriated for particular officials shall


be disbursed only for the purposes to be supported by appropriate
vouchers and subject to such guidelines as may be prescribed by law.

[7] If, by the end of any fiscal year, the Congress shall have
failed to pass the general appropriations bill for the ensuing fiscal year,
211

the general appropriations law for the preceding year shall be deemed
reenacted and shall remain in force and effect until the general
appropriations bill is passed by the Congress.

Read: DEMETRIA vs. ALBA, 148 SCRA 208

Section 26. [1] Every bill passed by the Congress shall embrace only
one subject which shall be expressed in the title thereof.

[2] No bill shall be passed unless it has passed 3 readings on


separate days, and printed copies thereof in its final form have been
distributed to its members 3 days before its passage, except when the
President certifies as to its necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of the bill,
no amendment thereto shall be allowed, and the vote thereon shall be
taken immediately thereafter, and the yeas and nays entered in the
Journal.

Read:
1) TIO VS. VIDEOGRAM REGULATORY BOARD, 151 SCRA 208
2) DE LA CRUZ VS. PARAS, 123 SCRA 569
3) INSULAR LUMBER VS. CTA, 104 SCRA 710
2) LIDASAN VS. COMELEC, 21 SCRA 496

The case questions the law entitled "An Act Creating the Municipality
of Dianaton in the Province of Lanao del Sur", but which includes
barrios located in another province Cotabato to be spared from attack
planted upon the constitutional mandate that "No bill which may be
enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill"?

Doubtless, as the statute stands, twelve barrios in two


municipalities in the province of Cotabato are transferred to the province
of Lanao del Sur. This brought about a change in the boundaries of the
two provinces.
Apprised of this development, on September 7, 1967, the Office of the
President, through the Assistant Executive Secretary, recommended to
Comelec that the operation of the statute be suspended until "clarified by
correcting legislation."

Comelec, by resolution of September 20, 1967, stood by its own


interpretation, declared that the statute "should be implemented unless
declared unconstitutional by the Supreme Court."

It may be well to state, right at the outset, that the constitutional


provision contains dual limitations upon legislative power. First.
Congress is to refrain from conglomeration, under one statute, of
heterogeneous subjects. Second. The title of the bill is to be couched in a
language sufficient to notify the legislators and the public and those
concerned of the import of the single subject thereof.

Of relevance here is the second directive. The subject of the statute


must be "expressed in the title" of the bill. This constitutional
requirement "breathes the spirit of command." Compliance is
imperative, given the fact that the Constitution does not exact of
212

Congress the obligation to read during its deliberations the entire text of
the bill. In fact, in the case of House Bill 1247, which became Republic
Act 4790, only its title was read from its introduction to its final approval
in the House of Representatives where the bill, being of local
application, originated.

Of course, the Constitution does not require Congress to employ in


the title of an enactment, language of such precision as to mirror, fully
index or catalogue all the contents and the minute details therein. It
suffices if the title should serve the purpose of the constitutional demand
that it inform the legislators, the persons interested in the subject of the
bill, and the public, of the nature, scope and consequences of the
proposed law and its operation. And this, to lead them to inquire into the
body of the bill, study and discuss the same, take appropriate action
thereon, and, thus, prevent surprise or fraud upon the legislators.

The test of the sufficiency of a title is whether or not it is


misleading; and, which technical accuracy is not essential, and the
subject need not be stated in express terms where it is clearly inferable
from the details set forth, a title which is so uncertain that the average
person reading it would not be informed of the purpose of the enactment
or put on inquiry as to its contents, or which is misleading, either in
referring to or indicating one subject where another or different one is
really embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act, is bad.

In determining sufficiency of particular title its substance rather


than its form should be considered, and the purpose of the constitutional
requirement, of giving notice to all persons interested, should be kept in
mind by the court.

With the foregoing principles at hand, we take a hard look at the


disputed statute. The title "An Act Creating the Municipality of
Dianaton, in the Province of Lanao del Sur" 8 projects the impression
that solely the province of Lanao del Sur is affected by the creation of
Dianaton. Not the slightest intimation is there that communities in the
adjacent province of Cotabato are incorporated in this new Lanao del Sur
town. The phrase "in the Province of Lanao del Sur," read without
subtlety or contortion, makes the title misleading, deceptive. For, the
known fact is that the legislation has a two-pronged purpose combined in
one statute: (1) it creates the municipality of Dianaton purportedly from
twenty-one barrios in the towns of Butig and Balabagan, both in the
province of Lanao del Sur; and (2) it also dismembers two municipalities
in Cotabato, a province different from Lanao del Sur.

The baneful effect of the defective title here presented is not so


difficult to perceive. Such title did not inform the members of Congress
as to the full impact of the law; it did not apprise the people in the towns
of Buldon and Parang in Cotabato and in the province of Cotabato itself
that part of their territory is being taken away from their towns and
province and added to the adjacent Province of Lanao del Sur; it kept the
public in the dark as to what towns and provinces were actually affected
by the bill. These are the pressures which heavily weigh against the
constitutionality of Republic Act 4790.
213

5) ALALAYAN VS. NAPOCOR, 24 SCRA 172


6) CORDERO VS. CABATUANDO, 6 SCRA 418
7) TATAD VS. SECRETARY OF ENERGY, November 5, 1997, 281 SCRA 330

17. Section 27. [1] Every bill passed by Congress shall, before it
becomes a law, be presented to the President. If he approves the same,
he shall sign it, otherwise, he shall veto it and return the same with his
objections to the House where it originated, which shall enter the
objections at large in its journal and proceed to reconsider it. If, after
such consideration , 2/3 of all the members of such House shall agree
to pass the bill, it shall be sent, together with the objections , to the
other House by which it shall likewise be reconsidered, and if
approved by 2/3 of all the members of that House, it shall become a
law. In all such cases, the votes of each house shall be determined by
yeas or nays, and the names of the members voting for or against shall
be entered in its journal. The President shall communicate his veto of
any bill to the House where it originated within 30 days after the date
of receipt thereof; otherwise, it shall become a law as if he signed it.

[2] The President shall have the power to veto any particular
item or items in an appropriation, revenue or tariff bill, but the veto
shall not affect the item or items to which he does not object.

1) Read:
a. BENGZON VS. SECRETARY OF JUSTICE, 62 Phil. 912
b. BOLINAO ELECTRONICS VS. VALENCIA, 11 SCRA 486
c. NEPTALI GONZALES VS. MACARAIG, November 19, 1990

Section 55 of the Appropriations Act of 1989 (Section 55 [FY '89]


hereinafter), which was vetoed by the President, reads:

SEC. 55. Prohibition Against the Restoration or Increase of Recommended


Appropriations Disapproved and /or Reduced by Congress: No item of
appropriation recommended by the President in the Budget submitted to
Congress pursuant to Article VII, Section 22 of the Constitution which has
been disapproved or reduced in this Act shall be restored or increased by the
use of appropriations authorized for other purposes by augmentation. An item
of appropriation for any purpose recommended by the President in the
Budget shall be deemed to have been disapproved by Congress if no
corresponding appropriation for the specific purpose is provided in this Act.

We quote below the reason for the Presidential veto:

The provision violates Section 25 (5) of Article VI of the Constitution. If


allowed, this Section would nullify not only the constitutional and statutory
authority of the President, but also that of the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and Heads of Constitutional Commissions, to augment any item in the
general appropriations law for their respective offices from savings in other
items of their respective appropriation. A careful review of the legislative
action on the budget as submitted shows that in almost all cases, the budgets
of agencies as recommended by the President, as well as those of the Senate,
the House of Representatives, and the Constitutional Commissions, have
been reduced. An unwanted consequence of this provision is the inability of
the President, the President of the Senate, Speaker of the House of
214

Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions to augment any item of appropriation of their
respective offices from savings in other items of their respective
appropriations even in cases of calamity or in the event of urgent need to
accelerate the implementation of essential public services and infrastructure
projects.

I am vetoing this provision for the reason that it violates Section 25 (5) of
Article VI of the Constitution in relation to Sections 44 and 45 of P.D. No.
1177 as amended by R.A. No. 6670 which authorizes the President to use
savings to augment any item of appropriations in the Executive Branch of the
Government.

The fundamental issue raised is whether or not the veto by the President
of Section 55 of the 1989 Appropriations Bill (Section 55 FY'89), and
subsequently of its counterpart Section 16 of the 1990 Appropriations Bill
(Section 16 FY'90), is unconstitutional and without effect.

The focal issue for resolution is whether or not the President exceeded
the item veto power accorded by the Constitution. Or differently put, has the
President the power to veto "provisions" of an Appropriations Bill?

Petitioners contend that Section 55 FY '89) and Section 16 (FY'90) are


provisions and not items and are, therefore, outside the scope of the item veto
power of the President.
The veto power of the President is expressed in Article VI, Section 27 of the
1987 Constitution reading, in full, as follows:

Sec. 27.

(2) The President shall have the power to veto any particular item or items
in an appropriation, revenue, or tariff bill, but the veto shall not affect the
item or items to which he does not object.

Paragraph (1) refers to the general veto power of the President and if
exercised would result in the veto of the entire bill, as a general rule.
Paragraph (2) is what is referred to as the item veto power or the line-veto
power. It allows the exercise of the veto over a particular item or items in an
appropriation, revenue, or tariff bill. As specified, the President may not veto
less than all of an item of an Appropriations Bill. In other words, the power
given the Executive to disapprove any item or items in an Appropriations Bill
does not grant the authority to veto a part of an item and to approve the
remaining portion of the same item.

It is to be noted that the counterpart provision in the 1987 Constitution


(Article VI, Section 27 [2], supra), is a verbatim reproduction except for the
public official concerned. In other words, also eliminated has been any
reference to the veto of a provision. The vital question is: should this
exclusion be interpreted to mean as a disallowance of the power to veto a
provision, as petitioners urge?
The terms item and provision in budgetary legislation and practice are
concededly different. An item in a bill refers to the particulars, the details, the
distinct and severable parts . . . of the bill (Bengzon, supra, at 916). It is an
indivisible sum of money dedicated to a stated purpose (Commonwealth v.
215

Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States
Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410,
414, 57 S.Ct 252, 81 L. Ed., 312) declared "that an 'item' of an appropriation
bill obviously means an item which in itself is a specific appropriation of
money, not some general provision of law, which happens to be put into an
appropriation bill."

It is our considered opinion that, notwithstanding the elimination in Article


VI, Section 27 (2) of the 1987 Constitution of any reference to the veto of a
provision, the extent of the President's veto power as previously defined by
the 1935 Constitution has not changed. This is because the eliminated proviso
merely pronounces the basic principle that a distinct and severable part of a
bill may be the subject of a separate veto (Bengzon v. Secretary of Justice, 62
Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J., The Constitution of the
Republic of the Philippines, 1st ed., 154-155, [1988]).

The restrictive interpretation urged by petitioners that the President may


not veto a provision without vetoing the entire bill not only disregards the
basic principle that a distinct and severable part of a bill may be the subject
of a separate veto but also overlooks the Constitutional mandate that any
provision in the general appropriations bill shall relate specifically to some
particular appropriation therein and that any such provision shall be limited
in its operation to the appropriation to which it relates (1987 Constitution,
Article VI, Section 25 [2]). In other words, in the true sense of the term, a
provision in an Appropriations Bill is limited in its operation to some
particular appropriation to which it relates, and does not relate to the entire
bill.

But even assuming arguendo that provisions are beyond the executive power
to veto, we are of the opinion that Section 55 (FY '89) and Section 16 (FY
'90) are not provisions in the budgetary sense of the term. Article VI, Section
25 (2) of the 1987 Constitution provides:

Sec. 25 (2) No provision or enactment shall be embraced in the


general appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be limited in its
operation to the appropriation to which it relates.

Explicit is the requirement that a provision in the Appropriations Bill should


relate specifically to some "particular appropriation" therein. The challenged
"provisions" fall short of this requirement. Firstly, the vetoed "provisions" do
not relate to any particular or distinctive appropriation. They apply generally
to all items disapproved or reduced by Congress in the Appropriations Bill.
Secondly, the disapproved or reduced items are nowhere to be found on the
face of the Bill. To discover them, resort will have to be made to the original
recommendations made by the President and to the source indicated by
petitioners themselves, i.e., the "Legislative Budget Research and Monitoring
Office" (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more
of an expression of Congressional policy in respect of augmentation from
savings rather than a budgetary appropriation. Consequently, Section 55 (FY
'89) and Section 16 (FY '90) although labelled as "provisions," are actually
inappropriate provisions that should be treated as items for the purpose of the
President's veto power. (Henry v. Edwards [1977] 346 S Rep. 2d, 157-158).
216

Just as the President may not use his item-veto to usurp constitutional
powers conferred on the legislature, neither can the legislature deprive the
Governor of the constitutional powers conferred on him as chief executive
officer of the state by including in a general appropriation bill matters more
properly enacted in separate legislation. The Governor's constitutional power
to veto bills of general legislation ... cannot be abridged by the careful
placement of such measures in a general appropriation bill, thereby forcing
the Governor to choose between approving unacceptable substantive
legislation or vetoing "items" of expenditure essential to the operation of
government. The legislature cannot by location ot a bill give it immunity
from executive veto. Nor it circumvent the Governor's veto power over
substantive legislation by artfully drafting general law measures so that they
appear to be true conditions or limitations on an item of appropriation.
Otherwise, the legislature would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of government in
contravention of the separation of powers doctrine ... We are no more willing
to allow the legislature to use its appropriation power to infringe on the
Governor's constitutional right to veto matters of substantive legislation than
we are to allow the Governor to encroach on the constitutional powers of the
legislature. In order to avoid this result, we hold that, when the legislature
inserts inappropriate provisions in a general appropriation bill, such
provisions must be treated as items for purposes of the Governor's item veto
power over general appropriation bills.

Petitioners maintain, however, that Congress is free to impose conditions in


an Appropriations Bill and where conditions are attached, the veto power
does not carry with it the power to strike them out, citing Commonwealth v.
Dodson (11 SE 2d 130, supra) and Bolinao Electronics Corporation v.
Valencia (No. L-20740, June 30, 1964, 11 SCRA 486). In other words, their
theory is that Section 55 (FY'89) and Section 16 (FY'90) are such
conditions/restrictions and thus beyond the veto power.

There can be no denying that inherent in the power of appropriation is the


power to specify how money shall be spent; and that in addition to distinct
"items" of appropriation, the Legislature may include in Appropriation Bills
qualifications, conditions, limitations or restrictions on expenditure of funds.
Settled also is the rule that the Executive is not allowed to veto a condition or
proviso of an appropriation while allowing the appropriation itself to stand
(Fairfield v. Foster, supra, at 320). That was also the ruling in Bolinao, supra,
which held that the veto of a condition in an Appropriations Bill which did
not include a veto of the items to which the condition related was deemed
invalid and without effect whatsoever.

The Power of augmentation and The Validity of the Veto


The President promptly vetoed Section 55 (FY'89) and Section 16 (FY'90)
because they nullify the authority of the Chief Executive and heads of
different branches of government to augment any item in the General
Appropriations Law for their respective offices from savings in other items of
their respective appropriations, as guaranteed by Article VI, Section 25 (5) of
the Constitution. Said provision reads:

Sec. 25. (5) No law shall be passed authorizing any transfer of


appropriations; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
217

authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations. (Emphasis ours).

If, indeed, the Legislature believed that the exercise of the veto powers by
the Executive were unconstitutional, the remedy laid down by the
Constitution is crystal clear. A Presidential veto may be overriden by the
votes of two-thirds of members of Congress (1987 Constitution, Article VI,
Section 27[l], supra). But Congress made no attempt to override the
Presidential veto. Petitioners' argument that the veto is ineffectual so that
there is "nothing to override" (citing Bolinao) has lost force and effect with
the executive veto having been herein upheld.

e. BENGZON VS. DRILON, April 15, 1992

In the case at bar, the veto of these specific provisions in the General
Appropriations Act is tantamount to dictating to the Judiciary how its funds
should be utilized, which is clearly repugnant to fiscal autonomy. The
freedom of the Chief Justice to make adjustments in the utilization of the
funds appropriated for the expenditures of the judiciary, including the use of
any savings from any particular item to cover deficits or shortages in other
items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the
Judiciary must enjoy freedom in the disposition of the funds allocated to it in
the appropriations law. It knows its priorities just as it is aware of the fiscal
restraints. The Chief Justice must be given a free hand on how to augment
appropriations where augmentation is needed.

Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452


[1990]), the Court upheld the authority of the President and other key
officials to augment any item or any appropriation from savings in the
interest of expediency and efficiency. The Court stated that:

There should be no question, therefore, that statutory authority has, in fact,


been granted. And once given, the heads of the different branches of the
Government and those of the Constitutional Commissions are afforded
considerable flexibility in the use of public funds and resources (Demetria v.
Alba, supra). The doctrine of separation of powers is in no way endangered
because the transfer is made within a department (or branch of government)
and not from one department (branch) to another.

The Constitution, particularly Article VI, Section 25(5) also provides:

Sec. 25. (5) No law shall be passed authorizing any transfer of


appropriations; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations.

In the instant case, the vetoed provisions which relate to the use of savings
for augmenting items for the payment of the pension differentials, among
others, are clearly in consonance with the abovestated pronouncements of the
Court. The veto impairs the power of the Chief Justice to augment other
218

items in the Judiciary's appropriation, in contravention of the constitutional


provision on "fiscal autonomy."

III

Finally, it can not be denied that the retired Justices have a vested right to the
accrued pensions due them pursuant to RA 1797.
The right to a public pension is of statutory origin and statutes dealing with
pensions have been enacted by practically all the states in the United States
(State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in
most countries of the world. Statutory provisions for the support of Judges or
Justices on retirement are founded on services rendered to the state. Where a
judge has complied with the statutory prerequisite for retirement with pay, his
right to retire and draw salary becomes vested and may not, thereafter, be
revoked or impaired. (Gay v. Whitehurst, 44 So ad 430)

Thus, in the Philippines, a number of retirement laws have been enacted, the
purpose of which is to entice competent men and women to enter the
government service and to permit them to retire therefrom with relative
security, not only those who have retained their vigor but, more so, those who
have been incapacitated by illness or accident. (In re: Amount of the Monthly
Pension of Judges and Justices Starting From the Sixth Year of their
Retirement and After the Expiration of the Initial Five-year Period of
Retirement, (190 SCRA 315 [1990]).

As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired
Justices of the Supreme Court and Court of Appeals.
This was amended by RA 1797 which provided for an automatic adjustment
of the pension rates. Through the years, laws were enacted and jurisprudence
expounded to afford retirees better benefits.
P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910
providing that the lump sum of 5 years gratuity to which the retired Justices
of the Supreme Court and Court of Appeals were entitled was to be computed
on the basis of the highest monthly aggregate of transportation, living and
representation allowances each Justice was receiving on the date of his
resignation. The Supreme Court in a resolution dated October 4, 1990, stated
that this law on gratuities covers the monthly pensions of retired Judges and
Justices which should include the highest monthly aggregate of
transportation, living and representation allowances the retiree was receiving
on the date of retirement. (In Re: Amount of the Monthly Pension of Judges
and Justices, supra)

The rationale behind the veto which implies that Justices and Constitutional
officers are unduly favored is, again, a misimpression.
Immediately, we can state that retired Armed Forces officers and enlisted
men number in the tens of thousands while retired Justices are so few they
can be immediately identified. Justices retire at age 70 while military men
retire at a much younger age some retired Generals left the military at age 50
or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply equally to
both groups. Any ideas arising from an alleged violation of the equal
protection clause should first be directed to retirees in the military or civil
service where the reason for the retirement provision is not based on
indubitable and constitutionally sanctioned grounds, not to a handful of
retired Justices whose retirement pensions are founded on constitutional
reasons.
219

The provisions regarding retirement pensions of justices arise from the


package of protections given by the Constitution to guarantee and preserve
the independence of the Judiciary.
The Constitution expressly vests the power of judicial review in this Court.
Any institution given the power to declare, in proper cases, that act of both
the President and Congress are unconstitutional needs a high degree of
independence in the exercise of its functions. Our jurisdiction may not be
reduced by Congress. Neither may it be increased without our advice and
concurrence. Justices may not be removed until they reach age 70 except
through impeachment. All courts and court personnel are under the
administrative supervision of the Supreme Court. The President may not
appoint any Judge or Justice unless he or she has been nominated by the
Judicial and Bar Council which, in turn, is under the Supreme Court's
supervision. Our salaries may not be decreased during our continuance in
office. We cannot be designated to any agency performing administrative or
quasi-judicial functions. We are specifically given fiscal autonomy. The
Judiciary is not only independent of, but also co-equal and coordinate with
the Executive and Legislative Departments. (Article VIII and section 30,
Article VI, Constitution)

Any argument which seeks to remove special privileges given by law to


former Justices of this Court and the ground that there should be no "grant of
distinct privileges" or "preferential treatment" to retired Justices ignores these
provisions of the Constitution and, in effect, asks that these Constitutional
provisions on special protections for the Judiciary be repealed. The integrity
of our entire constitutional system is premised to a large extent on the
independence of the Judiciary. All these provisions are intended to preserve
that independence. So are the laws on retirement benefits of Justices.

One last point.

The Office of the Solicitor General argues that:

. . . Moreover, by granting these benefits to retired Justices implies that public


funds, raised from taxes on other citizens, will be paid off to select
individuals who are already leading private lives and have ceased performing
public service. Said the United States Supreme Court, speaking through Mr.
Justice Miller: "To lay with one hand the power of the government on the
property of the citizen, and with the other to bestow upon favored individuals
. . . is nonetheless a robbery because it is done under the forms of law . . ."
(Law Association V. Topeka, 20 Wall. 655) (Comment, p. 16)

The above arguments are not only specious, impolite and offensive;
they certainly are unbecoming of an office whose top officials are supposed
to be, under their charter, learned in the law.

Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal,


Justices J.B.L. Reyes, Cecilia Muñoz Palma, Efren Plana, Vicente Abad
Santos, and, in fact, all retired Justices of the Supreme Court and the Court of
Appeals may no longer be in the active service. Still, the Solicitor General
and all lawyers under him who represent the government before the two
courts and whose predecessors themselves appeared before these retirees,
should show some continuing esteem and good manners toward these
Justices who are now in the evening of their years.
220

All that the retirees ask is to be given the benefits granted by law. To
characterize them as engaging in "robbery" is intemperate, abrasive, and
disrespectful more so because the argument is unfounded.
If the Comment is characteristic of OSG pleadings today, then we are sorry to
state that the then quality of research in that institution has severely
deteriorated.
In the first place, the citation of the case is, wrong. The title is not LAW
Association v. Topeka but Citizen's Savings and Loan Association of
Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455
[1874]. Second, the case involved the validity of a statute authorizing cities
and counties to issue bonds for the purpose of building bridges, waterpower,
and other public works to aid private railroads improve their services. The
law was declared void on the ground that the right of a municipality to
impose a tax cannot be used for private interests.

The case was decided in 1874. The world has turned over more than 40,000
times since that ancient period. Public use is now equated with public
interest. Public money may now be used for slum clearance, low-cost
housing, squatter resettlement, urban and agrarian reform where only private
persons are the immediate beneficiaries. What was "robbery" in 1874 is now
called "social justice." There is nothing about retirement benefits in the cited
case. Obviously, the OSG lawyers cited from an old textbook or encyclopedia
which could not even spell "loan" correctly. Good lawyers are expected to go
to primary sources and to use only relevant citations.

The Court has been deluged with letters and petitions by former colleagues in
the Judiciary requesting adjustments in their pensions just so they would be
able to cope with the everyday living expenses not to mention the high cost
of medical bills that old age entails. As Justice Cruz aptly stated in Teodoro J.
Santiago v. COA, (G.R. No. 92284, July 12, 1991);

Retirement laws should be interpreted liberally in favor of the retiree because


their intention is to provide for his sustenance, and hopefully even comfort,
when he no longer has the stamina to continue earning his livelihood. After
devoting the best years of his life to the public service, he deserves the
appreciation of a grateful government as best concretely expressed in a
generous retirement gratuity commensurate with the value and length of his
services. That generosity is the least he should expect now that his work is
done and his youth is gone. Even as he feels the weariness in his bones and
glimpses the approach of the lengthening shadows, he should be able to
luxuriate in the thought that he did his task well, and was rewarded for it.

For as long as these retired Justices are entitled under laws which continue to
be effective, the government can not deprive them of their vested right to the
payment of their pensions.
WHEREFORE, the petition is hereby GRANTED. The questioned veto is
SET ASIDE as illegal and unconstitutional. The vetoed provisions of the
1992 Appropriations Act are declared valid and subsisting. The respondents
are ordered to automatically and regularly release pursuant to the grant of
fiscal autonomy the funds appropriated for the subject pensions as well as the
other appropriations for the Judiciary. The resolution in Administrative
Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to be
implemented as promulgated.
221

2) What is a "pocket veto?"

3) What are the three ways by which a bill becomes a law?

3. PHILCONSA VS. ENRIQUEZ, 235 SCRA 506

What is the so-called “executive impoundment”?

It means that although an item of appropriation is not vetoed by the


President, he however refuses for whatever reason, to spend funds made possible
by Congress. It is the failure to spend or obligate budget authority of any type.
Proponents of impoundment have invoked at least three (3) principal sources of
authority of the President. [1] authority to impound given to him by Congress,
either expressly or impliedly; [2] the executive power drawn from his power as
Commander-in-chief; and [3] the Faithful execution clause of the Constitution.

Note that in this case the SC held that the Countryside Development Fund
(CDF) of Congressmen and Senators is CONSTITUTIONAL because the same is
“set aside for ‘infrastructure, purchase of ambulances and computers and other
priority projects and activities, and credit facilities to qualified beneficiaries as
proposed and identified by said Senators and Congressmen.

18. Section 28. [1] The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive system of taxation.

[2] The Congress, may by law, authorize the President to fix


within specified limits, and subject to such limitations and restrictions
as it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the government.

[3] Charitable institutions, churches and parsonages or convents


appurtenant thereto, mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly, and exclusively used
for religious, charitable, or educational purposes shall be exempt from
taxation.

[4] No law granting any tax exemption shall be passed without


the concurrence of a majority of all the members of the Congress.

Section 29. (1) No money shall be paid out of the treasury except in
pursuance of an appropriation made by law.

No public money or property shall be appropriated, applied, paid


or employed…directly or indirectly for the benefit, use, or support of
any sect, denomination, or system of religion…except when such
preacher, priest… is assigned to the AFP, or to any penal institution, or
government orphanage or leprosarium.

All money collected on any tax for a special purpose shall be


treated as a special fund and paid out for such purpose only. If the
purpose for which a special fund was created has been fulfilled or
abandoned, the balance, if any, shall be transferred to the general funds
of the Government.
222

Read:

1. Garcia vs. Executive Sec., 211 SCRA 219


1-a) PEPSI COLA VS. THE CITY OF BUTUAN, 24 SCRA 789
2) PROVINCE OF ABRA VS. HERNANDO, 107 SCRA 104
3) APOSTOLIC PREFECT OF BAGUIO VS. TREASURER, 71 Phil.
547
4) PASCUAL VS. SECRETARY OF PUBLIC WORKS, 110 Phil. 331
3) AGLIPAY VS. RUIZ, 64 Phil. 201
4) MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987

Respondent Dr. Francisco A. Perez was named outstanding Health


Worker for 1980 by the Ministry of Health on January 22, 1981. Being such
an awardee, Dr. Perez was granted by the Ministry of Health a two-step
salary increase in accordance with the merit increase program as enunciated
in Letter of Instructions (LOI) No. 562. Thereafter, the Ministry of Health
requested the Sangguniang Panglunsod of San Pablo City, which is paying
Dr. Perez' salary in full to appropriate the amount corresponding to the merit
increase in its current budget. For lack of legal basis, the Bureau of Local
Government opposed the proposed merit increase because the provisions of
LOI No. 562 apply only to officials/employees in the national government,
and consequently, awardee Dr. Perez was not entitled thereto, since he is an
employee of the local government as provided for in the charter of San
Pablo City. This prompted Dr. Perez to request the Ministry of Health to
make the corresponding allocation to issue a notice of salary adjustment
effective January 1, 1981. The Minister of Justice, upon a query made by the
Ministry of Health, in his Opinion No. 177, Series of 1981, dated November
20, 1981, acknowledged that the merit increase program applies only to the
officials/employees of the national government but declared Dr. Perez as one
such official or employee and concluded that the Ministry of Health should
pay the merit increase to him. Relying on such opinion, the Ministry of
Health issued to respondent Dr. Perez on December 1, 1981 a notice of
salary adjustment which release of the amount was denied by the Office of
the Budget and Management which insisted that the awardee is an employee
of the local or city government who is not covered by the merit increase
program. Dr. Perez made his appeal therefrom to the Ministry of Health who
forwarded it, recommending favorable action thereon to the Office of the
President of the Philippines. The latter referred the appeal to the Minister of
the Budget who affirmed his earlier decision of disallowing the merit
increase and reiterating the same reasons. A petition for mandamus to
compel the Office of the Budget and Management to pay the merit increase
was filed by Dr. Perez before the lower court which granted the
aforementioned favorable decision, subject matter of the present petition for
review on certiorari before Us by petitioners arguing that:

1. The position of private respondent as the City Health Officer of San


Pablo City is embraced in Sec. 7 of Pres. Decree (P.D.) No. 1136 which
states among other things that the salary plan provided for in Sec. 8 of the
same decree shall cover the City Officer, among other officials, whose salary
shall be paid out of city funds and therefore a local government employee
whose position does not appear in the list of national government employees
defined under another law (P.D. 985).

2. The constitution provides that no money shag be paid out of the


Treasury except in pursuance of an appropriation made by law. Since there
223

is no such appropriation, the Minister of the Budget cannot be compelled to


release the amount for the payment of the merit salary increase because such
allocation entails the exercise of judgment and discretion of the Minister of
the Budget which cannot be controlled by mandamus.
3. The decision declaring respondent Dr. Perez as an employee of the
national government would have far reaching effects such that all other city
health officers and local officials similarly situated would also be so entitled
to an personal benefits given to national employee. Dr. Perez's exemplary
accomplishment which merited for him the grant to a two-step increase must
yield to the overriding economic consideration of availability of funds which
the government must set aside for the purpose.

We do not agree with the arguments set down by petitioners. Private


respondent invites Our attention to the City Charter of San Pablo City (CA
#5201, Sec. 87, May 7, 1940) more specifically, Art. IV thereof, which
provides that the position of a City Health Officer is not included among the
heads of the regular departments of the city but included among the national
officials performing municipal functions under the direct control of the
Health Minister and not the city mayor as provided for in Art. XIV of the
same charter. Such principle is reiterated in the Decentralization Act of 1967
which shows that the appointing authority is the Health Minister and not the
local officials. Petitioner Minister of the Budget admitted thru the testimony
of its representative, Alice S. Torres, chief of the Compensation and Position
Classification and a specialist thereon that the City Health Officer is under
the administrative and technical supervision of the Ministry of Health (p. 69,
tsn, June 16, 1983, p. 72, Rollo). Be it noted that, Section 7 of PD 1136
relied upon by petitioners provides that the basic salary of the City Health
Officer is paid from city funds. However, the last paragraph of the same Sec.
7, excludes the city health officer from the classification of local
government official as can be gathered from the phrase "... except those
occupied by (a) officials whose compensation is fixed in the constitution,
Presidential Decrees and other laws and (b) officials and employees who are
under the direct supervision and control of the National Government or its
agencies and who are paid wholly or partially from national funds."

Provincial and city health officers are all considered national


government officials irrespective of the source of funds of their salary
because the preservation of health is a national service. Also their positions
are partially funded by the national government. Some are receiving one-
half of their salary from the national funds and the other one-half from local
funds.

We cannot likewise ignore the opinions of the Ministry of Justice cited


by private respondent to wit: 1) Opinion No. 26, Series of 1976 which
categorically rules that "Officials and employees of provincial and city
health offices render service as officials and employees of the Bureau of
Health (Ministry of Health) and they are for that reason not local but
national officials under the direct supervision and control of the Ministry of
Health; 2) Opinion No. 177, Series of 1981, which is specific and definitive
that the private respondent is a national government employee and the
Ministry of Health should pay the merit increase awarded to him. In this
1981 opinion, it was explained in detail how the said funds corresponding to
his merit increase could be legally disbursed contrary to the unfounded
speculations expressed by the petitioners.
224

Lastly, there is no basis in petitioner's allegations that they cannot be


compelled by mandamus as the appropriation is not authorized by law and it
is discretionary on the part of the Ministry of the Budget whether or not to
allocate. Respondent Dr. Perez has been proven to be a national government
official, hence covered by the merit promotion plan of the government more
particularly the Health Ministry wherein private respondent is its lone
beneficiary for the year 1980 in Region IV. It thus becomes the ministerial
duty of the Budget Minister to approve the request for allotment. Having
failed to do so, he could be compelled by mandamus.

19. Section 30. No law shall be passed increasing the


appellate jurisdiction of the Supreme Court as provided
in the Constitution without its advice and concurrence.

TERESITA FABIAN VS. HONORABLE ANIANO


DESIERTO, G.R. No. 129742, September 16, 1998)

Regalado, J.

Section 27 of RA 6770 or the Ombudsman Act of 1989 provides:

“In all administrative disciplinary cases, orders, directives


or decisions of the Office of the Ombudsman may be appealed to
the Supreme Court by filing a petition for Certiorari within 10
days from receipt of the written notice of the order, directive or
decision or denial of the Motion for Reconsideration in
accordance with Rule 45 of the Rules of Court”

Issue:

Is Section 27 of RA 6770 constitutional?

Held:

Section 27 of RA 6770 is unconstitutional since it increases the


appellate jurisdiction of the Supreme Court without its advice and consent as
provided under Section 30, Article VI of the 1987 Constitution. As explained
in FIRST LEPANTO CERAMICS INC. VS. CA, 237 SCRA 519, the
aforesaid constitutional provision “was intended to give the Supreme Court
a measure of control over cases placed under its appellate jurisdiction.
Otherwise, the enactment of legislation enlarging its appellate jurisdiction
would unnecessarily burden the Court.”

Appeal of cases decided by the Office of the Ombudsman covered by


Section 27 of RA 6770 shall be filed with the Court of Appeals.

Read: MANUEL ALBA VS. PEREZ, G.R. No. 65917, Sept. 24, 1987

20. Sections 32. The Congress, shall, as early as possible,


provide for a system of initiative and referendum, and
the exceptions therefrom, whereby the people can
directly propose and enact laws or approve or reject
any law or part thereof passed by the Congress or local
legislative body after the registration of a petition
therefore signed by at least 10% of the total number of
225

registered voters, of which every legislative district


must be represented by at least 3% of the registered
voters thereof.

Read again RA 6735 & SANTIAGO VS. COMELEC & PIRMA

PART VII
ARTICLE VII - THE EXECUTIVE DEPARTMENT

Section 1. The executive power shall be vested


in the President of the Philippines.

1. a. Define executive power

b. May the President refuse to enforce a law on the ground that in his opinion
it is unconstitutional?

No. Otherwise, he will be violating the doctrine of separation of powers


because by doing so, he will be arrogating unto himself the power to interpret the
law, not merely to implement it.

Read:
1) L.S. MOON & CO. VS. HARRISON, 43 Phil.38
2) GOV'T. VS. SPRINGER, 50 Phil. 529, read also the separate opinion.
3) VALLEY TRADING VS. CFI, 171 SCRA 501

What is the extent of the executive or administrative orders that may be


issued by the President as the Chief Executive, under the Administrative Code of
1987?

BLAS OPLE VS. RUBEN TORRES, ET AL.


G.R. No. 127685, July 23, 1998

Puno, J.

Facts:

On December 12, 1996, then President FIDEL V. RAMOS issued


Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.

The AO seeks to have all Filipino citizens and foreign residents to


have a Population Reference Number (PRN) generated by the National
Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1. The establishment of the PRN without any law is an


unconstitutional usurpation of the legislative powers of the
Congress of the Philippines;
2. The appropriation of public funds for the implementation of the
said AO is unconstitutional since Congress has the exclusive
authority to appropriate funds for such expenditure; and
226

3. The AO violates the citizen’s right to privacy protected by the Bill


of Rights of the Constitution.

Held:

1. The AO establishes a system of identification that is all-encompassing in


scope, affects the life and liberty of every Filipino citizens and foreign
residents and therefore, it is supposed to be a law passed by Congress that
implements it, not by an Administrative Order issued by the President.
Administrative Power, which is supposed to be exercised by the
President, is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. It enables the
President to fix a uniform standard of administrative efficiency and check
the official conduct of his agents. Prescinding from the foregoing
precepts, AO 308 involves a subject that is not appropriate to be covered
by an Administrative Order. An administrative order is an ordinance
issued by the President which relates to specific aspects in the
administrative operation of the government. It must be in harmony with
the law and should be for the sole purpose of implementing the law and
carrying out the legislative policy. The subject of AO 308 therefore is
beyond the power of the President to issue and it is a usurpation of
legislative power.

2. The AO likewise violates the right to privacy since its main purpose is to
provide a “common reference number to establish a linkage among
concerned agencies through the use of BIOMETRICS TECHNOLOGY.
Biometry is the science of the application of statistical methods to
biological facts; a mathematical analysis of a biological data. It is the
confirmation of an individual’s identity through a fingerprint, retinal scan,
hand geometry or facial features. Through the PRN, the government
offices has the chance of building a huge and formidable information
base through the electronic linkage of the files of every citizen. The data,
however, may be gathered for gainful and useful government purposes;
but the existence of this vast reservoir of personal information constitutes
a covert invitation to misuse, a temptation that may be too great for some
of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms
how these informations gathered shall be handled. It does not provide
who shall control and access the data and under what circumstances and
for what purpose. These factors are essential to safeguard the privacy and
guaranty the integrity of the information. The computer linkage gives
other government agencies access to the information. YET, THERE ARE
NO CONTROLS TO GUARD AGAINST LEAKAGE OF
INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL
PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS
BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR
PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER
PURPOSE, OR WORSE, MANIPULATE THE DATA STORED
WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that


personal information gathered about our people will be used only for
specified purposes thereby violating the citizen’s right to privacy.
227

Sections 2. No person shall be elected


President unless he is a natural born citizen of
the Philippines, a registered voter, able to read
and write, at least forty years o f age on the day
of the election, and a resident o f the
Philippines for at least ten years immediately
preceding the election.

Section 3. There shall be a Vice President who


shall have the same qualifications and term of
office and be elected with and in the same
manner as the President. He may be removed
from Office in the same manner as the
President.

The Vice President may be appointed as a


Member of the cabinet. Such appointment
requires no confirmation.

Note: Section 13, Art. VII. The President, Vice President, the members of
the cabinet, and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure…

Section 8, Article VIII. The Judicial and Bar Council-----Secretary of


Justice..

Section 2, Article XI. The President, VP, …may be removed from office, on
impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public
trust.

Section 4. The President and the Vice President


shall be elected by direct vote of the people for a
term of six years which shall begin at noon on the
30th day of June next following their election and
shall end at noon of the same date six years
thereafter. The President shall not be eligible for any
reelection. No person who has succeeded as
President and has served as such for more than 4
years shall be qualified for election to the same office
at any time.

No Vive President shall serve for more than 2


successive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an
interruption in the continuity of the service for the
full term for which he was elected.
The returns of every election for President and
Vice President duly certified by the Board of
canvassers of each province or city shall be
transmitted to the congress….

The candidate having the highest number of


votes shall be proclaimed elected, but in case two or
more shall have an equal number of votes, one of
228

them shall forthwith be chosen by the vote of a


majority of all the members of both Houses of
Congress voting separately.

Section 5…Oath
Section 6. Residence…Salary may not be
decreased…not increased until after the expiration of
his terms…shall not received any other emolument
from the government of from any source during their
tenure.

Section 7. ..shall assume office at the beginning


of their terms.
…P & VP not qualified, the Senate President shall
act as President or the Speaker, if SP is not yet
qualified..

Congress shall pass a law if the SP & Speaker


are not qualified to act as President…

Section 9. VP is vacant, the President shall


nominate from the Senate of HR and who shall
become VP upon confirmation of majority vote of the
members of the Senate & H of R voting separately.

Section 10. …In case of vacancy in the office


of the President and VP, Congress shall convene on
the 3rd day after the vacancy to enact a law calling for
special election to be held not later than 60 days…the
law is deemed certified under Section 26, par. 2 of
Art. VI and shall become a law upon 3rd reading..
Special elections cannot be postponed but no special
election if the vacancy occurs within 18 months
before the next presidential election.

Section 11. When President transmits to


Congress his written declaration of inability to
perform his duties, the VP shall be acting President
until the President transmits another declaration to
the contrary.

When majority of the members of the cabinet


transmit to the Senate President a written declaration
that the President is unable to perform his duties, the
VP shall act as the President.

If the President transmits to the SP his


declaration that there is no disability, he shall
reassume his post but if the majority of all the
members of the Cabinet still insists that the President
is unable to discharge his powers, CONGRESS
SHALL DECIDE THE ISSUE. IT MUST
CONVENE WITHIN 48 HOURS if not in session
without need of a call.
229

If 2/3 of both Houses, voting separately,


determines that the President is unable to discharge
his powers, the VP shall act as President. Otherwise,
the President shall continue exercising his powers
and duties of his office.

Section 12. In case of serious illness of the


President, the public shall be informed of the state of
his health. The members of the cabinet in charge of
national security and foreign relations and the Chief
of the AFP shall not be denied access to the
President.

a. Qualifications, disqualifications, term of office, etc., of the President and


Vice-President.

b. See: Sec. 17 of Art. XVIII.

c. Read: PHILIPPINE BAR ASSOCIATION VS. COMELEC, 140 SCRA


453 (The snap presidential election case)

3. Sections 7-12

a. Note the order of succession to the office of the President and Vice
President

b. Query: Is President Gloria Macapagal Arroyo a de jure or a de facto


President? If de jure, how did she succeed? Resignation or permanent disability of
former President Estrada?

JOSEPH EJERCITO ESTRADA VS. DESIERTO, G.R.


Nos. 146710-15 and 146738, March 2, 2001

Puno, J [En Banc]

F A C T S:

1. On 13 November 2000, the Speaker of the House of Representatives


transmitted to the Senate the Articles of Impeachment charging petitioner
Joseph Estrada with bribery, graft and corruption, betrayal of public trust and
culpable violation of the Constitution. The impeachment of petitioner resulted
from disclosures made by Ilocos Sur Governor, Luis Chavit Singson in
October, 2000 that petitioner had received payments from illegal jueteng
operations and excise taxes;

The impeachment trial began on 07 December 2000. A highlight of the


December 2000 hearings was the testimony of CLARISSA OCAMPO of the
Equitable – PCI Bank that she witnessed petitioner affixing the signature of
“JOSE VELARDE” on bank documents involving a P500 M investment
agreement;

2. On 16 January 2001, the issue of whether or not to open what has been dubbed
as the “Second Envelope” arose before the impeachment court. The envelope
allegedly contained proof that petitioner held P3.3 B in a secret bank account
under the name “JOSE VELARDE”. The motion to open the said envelope was
230

struck down by the senator-judges by a vote of 11-10. The public and private
prosecutors walked out of the trial to protect the ruling. Hours after the
controversial ruling, the public began to rally at the EDSA SHRINE; the rally
continued in the following days;

3. On January 17, 2001, the public prosecutors tendered their collective


resignation to the Speaker. They also filed a Manifestation of WITHDRAWAL
OF APPEARANCE with the Impeachment Court. Thereafter, Senator Roco
moved for the indefinite postponement of the impeachment proceedings. Chief
Justice Davide granted the same;

4. In the afternoon of 19 January, 2001, the Chief of Staff of the AFP withdrew his
support to President Estrada. The same is true with the PNP Chief and majority
of the members of the Estrada Cabinet;

5. In early hours of 20 January 2001, negotiations for the peaceful and orderly
transfer of power began between petitioner’s representatives and that of
respondent GLORIA MACAPAGAL-ARROYO, then Vice President. Later in
the morning, Arroyo reportedly requested the Chief Justice to administer her
oath. The letter, sent through fax was quoted thus by Justice Vitug in his
concurring opinion, as follows:

“The undersigned respectfully informs this Honorable


Court that Joseph Ejercito Estrada is permanently
incapable of performing the duties of his office resulting
in his permanent disability to govern and serve his
unexpired term. Almost all of his cabinet members have
resigned and the Philippine National Police have
withdrawn their support for Joseph Ejercito Estrada. Civil
society has likewise refused to recognize him as President.

“In view of this, I am assuming the position of the


President of the Philippines. Accordingly, I would like to
take my oath as President of the Republic before the
Honorable Chief Justice Hilario Davide, Jr. today, 20
January 2001, 12:00 noon at EDSA SHRINE, Quezon City,
Metro Manila.

“May I have the honor to invite the members of the


Honorable Court to attend the oath-taking”.

6. At 12 noon, Arroyo was sworn in by Chief Justice Davide as the 14 th President


of the Republic of the Philippines. At 2:30 p.m., petitioner and his family left
Malacanang Palace. Petitioner issued the following statement:

“At 12 o’clock noon today, Vice President Gloria


Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious
doubts about the legality and constitutionality of her
Proclamation as President, I do not wish to be a factor that
will prevent the restoration of unity and order in our civil
society.
231

It is for this reason that I now leave Malacanang


Palace, the seat of the Presidency of this country, for the
sake of peace and in order to begin the healing process of
our nation. I leave the palace of our people with gratitude
for the opportunities given to me for service to our people.
I will not shirk from any future challenges that may come
ahead in the same service of our country.

I call all my supporters and followers to join me in


the promotion of a constructive national spirit of
reconciliation and solidarity.

May the Almighty bless our country and beloved


people.

Mabuhay”

“(Sgd.) Joseph Ejercito Estrada”

7. Petitioner also sent copies of the following letter to the Senate President and
Speaker of the House of Representatives on 20 January 2001. The copy for the
House Speaker was sent at 8:30 a.m.. Another copy was transmitted to the
Senate President and received only at 9:00 p.m.

“Sir:

By virtue of the provisions of Section 11, Art. VII of


the Constitution, I am hereby transmitting this declaration
that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice
President shall be Acting President.

(Sgd.) Joseph Ejercito Estrada”

8. Prior to the events of January, 2001, 6 cases had been filed before the Office of
the Ombudsman Aniano Desierto. A special panel was created to investigate
these cases. On January 22, 2001, petitioner was directed to file his counter-
affidavit and affidavit of his witnesses;

9. On February 5, 2001, petitioner filed these cases to prohibit the respondent


from investigating the charges of plunder, bribery and graft and corruption on the
ground that he is immune from suit;

10. On February 6, 2001, the petitioner filed the petition docketed as GR No.
146738 for quo warranto against Arroyo praying that he be declared the lawful
President of the Philippines and respondent GMA merely as acting President on
account of his temporary disability.

I S S U E S:

1. DO THE CASES AT BAR INVOLVE A POLITICAL


QUESTION AND ARE BEYOND THE
JURISDICTION OF THE SUPREME COURT TO
DECIDE?
232

2. DID PETITIONER ESTRADA RESIGN AS


PRESIDENT?
3. IS THE PETITIONER TEMPORARILY UNABLE TO
ACT AS PRESIDENT?
4. DOES THE PETITIONER ENJOY IMMUNITY
FROM SUIT? IF SO, TO WHAT EXTENT?
5. SHOULD THE PROSECUTION OF ESTRADA BE
ENJOINED DUE TO PREJUDICIAL PUBLICITY?

H E L D:

No, the cases do not involve political question. In Tanada vs. Cuenco, 103
Phil. 1051 [1957], it was held that 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 and executive branches of the government. It is concerned with
issues dependent upon the wisdom, not the legality of a particular measure.”

The 1987 Constitution narrowed the reach of the political question doctrine
when it expanded the power of judicial review of the court, 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 government.

IN support of the contention that the cases involve political questions, the
respondents cited the cases of LAWYER'’ LEAGE FOR A BETTER
PHILIPPINES VS. PRESIDENT CORAZON AQUINO, May 22, 1986 and
related cases. The court pointed out that in those cases, it held that the government
of President Aquino was the result of a successful but peaceful revolution by the
Filipino people. The Freedom Constitution itself declared that the Aquino
government was installed through the direct exercise of the power of the Filipino
people “in defiance of the 1973 Constitution, as amended.” IN contrast, the
Arroyo government is not revolutionary in character. The oath of President Arroyo
took at the EDSA Shrine is an oath under the 1987 Constitution where she swore
to preserve and defend the 1987 Constitution.

The EDSA 1 that installed President Aquino and EDSA II which installed
Arroyo are different because the first involves the exercise of the people power of
revolution which overthrew the whole government. EDSA II is an exercise of
people power of freedom of speech and freedom of assembly to petition the
government for redress of grievances which only affected the Office of the
President. EDSA I is extra constitutional and the legitimacy of the new
government that resulted from it cannot be the subject of judicial review, but
EDSA II is intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are subject to judicial
review. EDSA I presented a political question, EDSA II involves legal questions.

Therefore, the present cases involve legal questions requiring the proper
interpretation of provisions of the 1987 Constitution on the scope of presidential
immunity from suit and the correct calibration of the right of petitioner against
prejudicial publicity.
233

II

Using the totality test, the SC held that petitioner Estrada resigned as President.

Resignation is not a high level abstraction. It is a factual question and its


elements are beyond quibble: there must be an intent to resign and the intent must
be coupled by acts of relinquishment. The validity of a resignation is not governed
by any formal requirement as to form. It can be written. It can be express. It can
be implied. As long as the resignation is clear, it must be given legal effect.

Since Estrada did not write a letter of resignation before evacuating the
Malacanang Palace on January 20, 2001, the determination of whether he resigned
should be based on his acts and omission before, during and after 20 January
2001. THIS IS THE TOTALITY TEST, THE TOTALITY OF PRIOR,
CONTEMPORANEOUS AND POSTERIOR FACTS AND CIRCUMSTANTIAL
EVIDENCE BEARING MATERIAL RELEVANCE TO THE ISSUE.

The diary of former Executive Secretary Angara as serialized in the


Philippine Daily Inquirer on February 4-6, 2001 gives an “authoritative window
on the state of mind of the petitioner.” These are:

a. On January 19, 2001 at the height of the EDSA protest, Estrada called for a
snap presidential election in May 2001 and made it on record that he will not
be a candidate. It is an indication that he had given up the presidency even at
that time since his term is supposed to be up to 2004;
b. Estrada did not object to the suggestion that he consider a “dignified exit” and
that he be allowed to go abroad with enough funds;
c. Estrada’s statement that he was guaranteed by Chief of Staff Angelo Reyes that
he would be given a 5-day grace period in the palace which shows that he had
reconciled himself to the reality that he had to resign;
d. During the negotiations between the Estrada and Arroyo groups in the early
morning of January 20, 2001, the resignation of the petitioner was treated as a
fact;
e. During the 1st round of negotiations, Estrada said “Pagod na pagod na ako.
Ayoko masyado nang masakit. Pagod na ako sa red tape, intriga”. The court
held that this was a “high grade evidence” that he had resigned. The SC held
that “ayoko na” are words of resignation.
f. The President’s act of leaving the palace on January 20, 2001 confirmed his
resignation. Petitioner’s press release, “his final act and farewell”,
acknowledged the oath-taking of Arroyo as President, his reservation about its
legality. He said he was leaving the palace for the sake of peace and order. He
did not say that he was leaving as a result of a disability and was going to re-
assume the presidency as soon as the disability appears

III

NO.

The court held that the petitioner has in fact resigned and his claim of
inability was laid to rest by Congress. The decision that respondent Arroyo is the
de jure President, made by a co-equal branch of the government, cannot be
reviewed by the Court.

Both Houses of Congress had recognized that Arroyo is the President when
they passed Resolution “expressing their support to the administration of Her
234

Excellency Gloria Macapagal Arroyo, President of the Philippines” which was


passed on January 24, 2001; another resolution dated January 24, 2001
“expressing full support to the assumption into office by VP Arroyo as President
of the Philippines”; and the Resolution dated February 7, 2001 “confirming
President Arroyo’s nomination of Senator Teopisto Guingona, Jr. as Vice President
of the Philippines.”

Both Houses also sent bills for the New President (GMA) to sign into law.
Therefore, the Court has no jurisdiction to review the claim of temporary
disability and could not revise the decision of Congress recognizing Arroyo as
President without transgressing the principle of separation of powers.

IV

NO.

As a non-sitting President, Estrada enjoys no immunity from the criminal


charges of plunder, bribery and graft and corruption filed against him. Likewise,
the argument that he should first be convicted in the impeachment proceedings
before he could be charged criminally is without merit since the impeachment
court has adjourned indefinitely insofar as the case against him is concerned. To
follow his line of argument would put a perpetual bar against his prosecution. In
fact, the Constitutional Commission in its deliberations show that even if the
case against an impeachable officer has become moot as a result of his
resignation, the proper criminal and civil cases may be filed against him.

Also, as held in RE: SATURNINO BERMUDEZ, 145 SCRA 160, an


incumbent President is immune from suit or from being brought to court BUT
NOT BEYOND. In NIXON VS. FITSGERALD, 457 US 731, the US Supreme
Court held that the immunity of the President from civil damages covers only
official acts. In the 1997 case of CLINTON VS. JONES, 520 US 681, the US
Supreme Court held that the president’s immunity from suits for money damages
arising out of official acts is inapplicable to unofficial conduct.

Finally, the constitutional provision that a public office is a public trust


would be “devalued if we sustain petitioner’s claim that a non-sitting President
enjoys immunity from suit for criminal acts committed during his incumbency.”

NO.

The SC held that the evidence presented by the petitioner is insufficient for
the Court to rule that the preliminary investigation by respondent Desierto be
enjoined. The claim of the petitioner, based on news reports, that the Ombudsman
had prejudged his case is not sufficient ground to stop the investigation. As held in
MARTELINO VS. ALEJANDRO, 32 SCRA 106, “to warrant a finding of
prejudicial publicity, there must be an actual prejudice---there must be allegation
and proof that the judges have been unduly influenced. The accuracy of the
reports cited by the petitioner could not be the subject of judicial notice since the
Ombudsman is entitled to the presumption of good faith and regularity in the
performance of official duty.

(NOTE: On April 7, 2001, the Motion for Reconsideration of Estrada of the above
decision was denied for lack of merit.)
235

4. Section 13. The President, VP, Members of the Cabinet or their assistants shall
not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure.. They shall not during their tenure, directly or
indirectly practice any profession, participate in any business or be financially
interested in any contract with…the government or any government owned or
controlled corporation or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.

Read: 1. PUNZALAN VS. MENDOZA, 140 SCRA 153


2. ADAZA VS. PACANA, 135 SCRA 431
3. Opinion No. 155, Series of 1988 by the Secretary of Justice
4. Executive Order No. 284
5. Civil Liberties Union vs. Exec. Sec., February 22, 1991

DENNIS FUNA VS. EXECUTIVE SECRETARY


EDUARDO ERMITA, G.R. No. 184740, February 11,
2010

VILLARAMA, JR., J.:

This is a petition for certiorari, prohibition and mandamus


under Rule 65 with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction, to declare as
unconstitutional the designation of respondent Undersecretary
Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime
Industry Authority (MARINA).

FACTS:

On October 4, 2006, President Gloria Macapagal-Arroyo


appointed respondent Maria Elena H. Bautista (Bautista) as
Undersecretary of the Department of Transportation and
Communications (DOTC), vice Agustin R. Bengzon. Bautista was
designated as Undersecretary for Maritime Transport of the
department under Special Order No. 2006-171 dated October 23,
2006.

On September 1, 2008, following the resignation of then


MARINA Administrator Vicente T. Suazo, Jr., Bautista was
designated as Officer-in-Charge (OIC), Office of the Administrator,
MARINA, in concurrent capacity as DOTC Undersecretary.

On October 21, 2008, Dennis A. B. Funa in his capacity as


taxpayer, concerned citizen and lawyer, filed the instant petition
challenging the constitutionality of Bautista’s
appointment/designation, which is proscribed by the prohibition
on the President, Vice-President, the Members of the Cabinet, and
their deputies and assistants to hold any other office or
employment.

On January 5, 2009, during the pendency of this petition,


Bautista was appointed Administrator of the MARINA vice
Vicente T. Suazo, Jr. and she assumed her duties and
responsibilities as such on February 2, 2009.

ISSUE:
236

Whether or not Bautista’s concurrent positions as DOTC


Undersecretary and MARINA OIC is in violation of Section 13,
Article VII of the 1987 Constitution.

HELD:

The petition is meritorious.

On petitioner’s personality to sue as a mere taxpayer:

The courts’ power of judicial review, like almost all other


powers conferred by the Constitution, is subject to several
limitations, namely: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person challenging
the act must have “standing” to challenge; he must have a personal
and substantial interest in the case, such that he has sustained or will
sustain, direct injury as a result of its enforcement; (3) the question
of constitutionality must be raised at the earliest possible
opportunity; and (4) the issue of constitutionality must be the very
lis mota of the case. Respondents assert that the second requisite
is absent in this case.

Generally, a party will be allowed to litigate only when (1) he


can show that he has personally suffered some actual or threatened
injury because 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. The question
on 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.”

In David v. Macapagal-Arroyo, summarizing the rules culled


from jurisprudence, we held that taxpayers, voters, concerned
citizens, and legislators may be accorded standing to sue, provided
that the following requirements are met:

(1) 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.
[EMPHASIS SUPPLIED.]

Petitioner having alleged a grave violation of the


constitutional prohibition against Members of the Cabinet, their
deputies and assistants holding two (2) or more positions in
government, the fact that he filed this suit as a concerned citizen
sufficiently confers him with standing to sue for redress of such
illegal act by public officials.

The other objection raised by the respondent is that the


resolution of this case had been overtaken by events considering the
effectivity of respondent Bautista’s appointment as MARINA
237

Administrator effective February 2, 2009 and her relinquishment of


her former position as DOTC Undersecretary for Maritime
Transport.

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 use or value.
Generally, courts decline jurisdiction over such case or dismiss it on
ground of mootness. However, as we held in Public Interest
Center, Inc. v. Elma, supervening events, whether intended or
accidental, cannot prevent the Court from rendering a decision if
there is a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did not
hesitate to resolve the legal or constitutional issues raised to
formulate controlling principles to guide the bench, bar, and public.

Undersecretary Bautista’s designation as MARINA OIC falls


under the stricter prohibition under Section 13, Article VII of
the 1987 Constitution.

Resolution of the present controversy hinges on the correct


application of Section 13, Article VII of the 1987 Constitution,
which provides:

SEC. 13. The President, Vice-President, the Members of


the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the
conduct of their office.

On the other hand, Section 7, paragraph (2), Article IX-B


reads:

SEC. 7. x x x

Unless otherwise allowed by law or the primary functions


of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.

In Civil Liberties Union, a constitutional challenge was


brought before this Court to nullify EO No. 284 issued by then
President Corazon C. Aquino on July 25, 1987, which included
Members of the Cabinet, undersecretaries and assistant secretaries
in its provisions limiting to two (2) the positions that appointive
officials of the Executive Department may hold in government and
government corporations. Interpreting the above provisions in the
light of the history and times and the conditions and circumstances
under which the Constitution was framed, this Court struck down as
unconstitutional said executive issuance, saying that it actually
allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of
the 1987 Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.
238

Noting that the prohibition imposed on the President


and his official family is all-embracing, the disqualification was
held to be absolute, as the holding of “any other office” is not
qualified by the phrase “in the Government” unlike in Section 13,
Article VI prohibiting Senators and Members of the House of
Representatives from holding “any other office or employment in
the Government”; and when compared with other officials and
employees such as members of the armed forces and civil service
employees, we concluded thus:

These sweeping, all-embracing prohibitions imposed on the


President and his official family, which prohibitions are not
similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and
members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a
class by itself and to impose upon said class stricter
prohibitions.
Such intent of the 1986 Constitutional Commission to be
stricter with the President and his official family was also succinctly
articulated by Commissioner Vicente Foz after Commissioner
Regalado Maambong noted during the floor deliberations and
debate that there was no symmetry between the Civil Service
prohibitions, originally found in the General Provisions and the
anticipated report on the Executive Department. Commissioner Foz
Commented, “We actually have to be stricter with the President and
the members of the Cabinet because they exercise more powers and,
therefore, more checks and restraints on them are called for because
there is more possibility of abuse in their case.”
Thus, while all other appointive officials in the civil
service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or
by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words,
Section 7, Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President,
Members of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the President,
Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in
the government during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood
as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment.
Verily, wherever the language used in the constitution is prohibitory,
it is to be understood as intended to be a positive and unequivocal
negation. The phrase “unless otherwise provided in this
Constitution” must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the
Vice-President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII;
and, the Secretary of Justice being ex-officio member of the Judicial
and Bar Council by virtue of Section 8 (1), Article VIII.
[EMPHASIS SUPPLIED.]
239

Respondent Bautista being then the appointed


Undersecretary of DOTC, she was thus covered by the stricter
prohibition under Section 13, Article VII and consequently she
cannot invoke the exception provided in Section 7, paragraph 2,
Article IX-B where holding another office is allowed by law or the
primary functions of the position. Neither was she designated OIC
of MARINA in an ex-officio capacity, which is the exception
recognized in Civil Liberties Union.

The prohibition against holding dual or multiple offices or


employment under Section 13, Article VII of the 1987 Constitution
was held inapplicable to posts occupied by the Executive officials
specified therein, without additional compensation in an ex-officio
capacity as provided by law and as required by the primary
functions of said office. The reason is that these posts do not
comprise “any other office” within the contemplation of the
constitutional prohibition but are properly an imposition of
additional duties and functions on said officials. Apart from their
bare assertion that respondent Bautista did not receive any
compensation when she was OIC of MARINA, respondents failed
to demonstrate clearly that her designation as such OIC was in an
ex-officio capacity as required by the primary functions of her office
as DOTC Undersecretary for Maritime Transport.

Given the vast responsibilities and scope of administration of


the Authority, we are hardly persuaded by respondents’ submission
that respondent Bautista’s designation as OIC of MARINA was
merely an imposition of additional duties related to her primary
position as DOTC Undersecretary for Maritime Transport. It appears
that the DOTC Undersecretary for Maritime Transport is not even a
member of the Maritime Industry Board, which includes the DOTC
Secretary as Chairman, the MARINA Administrator as Vice-
Chairman, and the following as members: Executive Secretary
(Office of the President), Philippine Ports Authority General
Manager, Department of National Defense Secretary, Development
Bank of the Philippines General Manager, and the Department of
Trade and Industry Secretary.

Finally, the Court similarly finds respondents’ theory that


being just a “designation,” and temporary at that, respondent
Bautista was never really “appointed” as OIC Administrator of
MARINA, untenable. In Binamira v. Garrucho, Jr., we
distinguished between the terms appointment and designation, as
follows:

Appointment may be defined as the selection, by the


authority vested with the power, of an individual who is to exercise
the functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the
person chosen unless he is replaceable at pleasure because of the
nature of his office. Designation, on the other hand, connotes
merely the imposition by law of additional duties on an incumbent
official, as where, in the case before us, the Secretary of Tourism is
designated Chairman of the Board of Directors of the Philippine
Tourism Authority, or where, under the Constitution, three Justices
of the Supreme Court are designated by the Chief Justice to sit in
the Electoral Tribunal of the Senate or the House of
Representatives. It is said that appointment is essentially executive
while designation is legislative in nature.

Designation may also be loosely defined as an appointment


because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the
term. However, where the person is merely designated and not
240

appointed, the implication is that he shall hold the office only in a


temporary capacity and may be replaced at will by the appointing
authority. In this sense, the designation is considered only an acting
or temporary appointment, which does not confer security of
tenure on the person named. [EMPHASIS SUPPLIED.]

Clearly, respondents’ reliance on the foregoing definitions is


misplaced considering that the above-cited case addressed the issue of
whether petitioner therein acquired valid title to the disputed position
and so had the right to security of tenure. It must be stressed though
that while the designation was in the nature of an acting and temporary
capacity, the words “hold the office” were employed. Such holding of
office pertains to both appointment and designation because the
appointee or designate performs the duties and functions of the office.
The 1987 Constitution in prohibiting dual or multiple offices, as well
as incompatible offices, refers to the holding of the office, and not to
the nature of the appointment or designation, words which were not
even found in Section 13, Article VII nor in Section 7, paragraph 2,
Article IX-B. To “hold” an office means to “possess or occupy” the
same, or “to be in possession and administration,” which implies
nothing less than the actual discharge of the functions and duties of the
office.

The disqualification laid down in Section 13, Article VII is


aimed at preventing the concentration of powers in the Executive
Department officials, specifically the President, Vice-President,
Members of the Cabinet and their deputies and assistants. Civil
Liberties Union traced the history of the times and the conditions
under which the Constitution was framed, and construed the
Constitution consistent with the object sought to be accomplished
by adoption of such provision, and the evils sought to be avoided or
remedied. We recalled the practice, during the Marcos regime, of
designating members of the Cabinet, their deputies and assistants as
members of the governing bodies or boards of various government
agencies and instrumentalities, including government-owned or
controlled corporations. This practice of holding multiple offices or
positions in the government led to abuses by unscrupulous public
officials, who took advantage of this scheme for purposes of self-
enrichment. The blatant betrayal of public trust evolved into one of
the serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the overwhelming
sentiment of the people that the 1986 Constitutional Commission
would draft into the proposed Constitution the provisions under
consideration, which were envisioned to remedy, if not correct, the
evils that flow from the holding of multiple governmental offices
and employment. Our declaration in that case cannot be more
explicit:

But what is indeed significant is the fact that although


Section 7, Article IX-B already contains a blanket prohibition
against the holding of multiple offices or employment in the
government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to
formulate another provision, Sec. 13, Article VII, specifically
prohibiting the President, Vice-President, members of the Cabinet,
their deputies and assistants from holding any other office or
employment during their tenure, unless otherwise provided in the
Constitution itself.

Evidently, from this move as well as in the different


phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as
241

holding other offices or employment in the government or


elsewhere is concerned. [EMPHASIS SUPPLIED.]

Such laudable intent of the law will be defeated and rendered


sterile if we are to adopt the semantics of respondents. It would open
the veritable floodgates of circumvention of an important
constitutional disqualification of officials in the Executive
Department and of limitations on the President’s power of
appointment in the guise of temporary designations of Cabinet
Members, undersecretaries and assistant secretaries as officers-in-
charge of government agencies, instrumentalities, or government-
owned or controlled corporations.

As to respondents’ contention that the concurrent positions of


DOTC Undersecretary for Maritime Transport and MARINA OIC
Administrator are not incompatible offices, we find no necessity for
delving into this matter. Incompatibility of offices is irrelevant in
this case, unlike in the case of PCGG Chairman Magdangal Elma in
Public Interest Center, Inc. v. Elma. Therein we held that Section
13, Article VII is not applicable to the PCGG Chairman or to the
Chief Presidential Legal Counsel, as he is not a cabinet member,
undersecretary or assistant secretary.

WHEREFORE, the petition is GRANTED. The


designation of respondent Ma. Elena H. Bautista as Officer-in-
Charge, Office of the Administrator, Maritime Industry
Authority, in a concurrent capacity with her position as DOTC
Undersecretary for Maritime Transport, is hereby declared
UNCONSTITUTIONAL for being violative of Section 13,
Article VII of the 1987 Constitution and therefore, NULL and
VOID.

Sections 14 Appointments extended by an Acting President shall remain


effective, unless revoked by the elected President within 90 days from his
assumption of office.

Section 15. Two months immediately before the next presidential election
and up to the end of his term, a President or Acting President shall not make
appointments, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public
safety.

(NOTE: Section 9, Article VIII. The President shall issue the appointments
within 90 days from the submission of the list)
Read:
1) AYTONA VS. CASTILLO, 4 SCRA 1
2) PAMANTASAN VS. IAC, 140 SCRA 22
3) IN RE: JUDGE VALLARTA and JUDGE VALENZUELA

ARTURO DE CASTRO VS. JUDICIAL AND BAR COUNCIL,


G.R. No. 191032, March 17, 2010

BERSAMIN, J.:

ISSUES:

May the incumbent President appoint the successor of Chief


Justice Reynato Puno when he retires on May 17, 2010, considering
that Section 15, Article VII (Executive Department) of the
242

Constitution prohibits the President or Acting President from


making appointments within two months immediately before the
next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public
safety? What is the relevance of Section 4 (1), Article VIII (Judicial
Department) of the Constitution, which provides that any vacancy
in the Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of his
successor? May the Judicial and Bar Council (JBC) resume the
process of screening the candidates nominated or being considered
to succeed Chief Justice Puno, and submit the list of nominees to
the incumbent President even during the period of the prohibition
under Section 15, Article VII? Does mandamus lie to compel the
submission of the shortlist of nominees by the JBC?

The main question presented in all the filings herein –


because it involves two seemingly conflicting provisions of the
Constitution – imperatively demands the attention and resolution of
this Court, the only authority that can resolve the question
definitively and finally. The imperative demand rests on the ever-
present need, first, to safeguard the independence, reputation, and
integrity of the entire Judiciary, particularly this Court, an
institution that has been unnecessarily drag