G.R. No.

190259 June 7, 2011
DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-
GENERALE Petitioners,
vs.
HON. RONALDO PUNO, in his capacity as Secretary of the Department of
Interior and Local Government and alter-ego of President Gloria Macapagal-
Arroyo, and anyone acting in his stead and on behalf of the President of the
Philippines, ARMED FORCES OF THE PHILIPPINES (AFP), or any of their units
operating in the Autonomous Region in Muslim Mindanao (ARMM), and
PHILIPPINE NATIONAL POLICE, or any of their units operating in
ARMM, Respondents.
and 273-A be declared unconstitutional and that respondents DILG Secretary, the
AFP, and the PNP be enjoined from implementing them.
In its comment for the respondents,7 the Office of the Solicitor General (OSG) insisted
that the President issued Proclamation 1946, not to deprive the ARMM of its
autonomy, but to restore peace and order in subject places. 8She issued the
proclamation pursuant to her "calling out" power9 as Commander-in-Chief under the
first sentence of Section 18, Article VII of the Constitution. The determination of the
need to exercise this power rests solely on her wisdom. 10 She must use her judgment
based on intelligence reports and such best information as are available to her to call
out the armed forces to suppress and prevent lawless violence wherever and
whenever these reared their ugly heads.

DECISION
ABAD, J.:
On November 24, 2009, the day after the gruesome massacre of 57 men and women,
including some news reporters, then President Gloria Macapagal-Arroyo issued
Proclamation 1946,1 placing "the Provinces of Maguindanao and Sultan Kudarat and
the City of Cotabato under a state of emergency." She directed the Armed Forces of
the Philippines (AFP) and the Philippine National Police (PNP) "to undertake such
measures as may be allowed by the Constitution and by law to prevent and suppress
all incidents of lawless violence" in the named places.
Three days later or on November 27, President Arroyo also issued Administrative
Order 273 (AO 273)2"transferring" supervision of the Autonomous Region of Muslim
Mindanao (ARMM) from the Office of the President to the Department of Interior and
Local Government (DILG). But, due to issues raised over the terminology used in AO
273, the President issued Administrative Order 273-A (AO 273-A) amending the
former, by "delegating" instead of "transferring" supervision of the ARMM to the
DILG.3
Claiming that the President’s issuances encroached on the ARMM’s autonomy,
petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale,
all ARMM officials,4 filed this petition for prohibition under Rule 65. They alleged that
the proclamation and the orders empowered the DILG Secretary to take over ARMM’s
operations and seize the regional government’s powers, in violation of the principle of
local autonomy under Republic Act 9054 (also known as the Expanded ARMM Act)
and the Constitution. The President gave the DILG Secretary the power to exercise,
not merely administrative supervision, but control over the ARMM since the latter
could suspend ARMM officials and replace them.5
On the other hand, the President merely delegated through AOs 273 and 273-A her
supervisory powers over the ARMM to the DILG Secretary who was her alter ego any
way. These orders did not authorize a take over of the ARMM. They did not give him
blanket authority to suspend or replace ARMM officials.11 The delegation was
necessary to facilitate the investigation of the mass killings.12 Further, the assailed
proclamation and administrative orders did not provide for the exercise of emergency
powers.13
Although normalcy has in the meantime returned to the places subject of this petition,
it might be relevant to rule on the issues raised in this petition since some acts done
pursuant to Proclamation 1946 and AOs 273 and 273-A could impact on the
administrative and criminal cases that the government subsequently filed against
those believed affected by such proclamation and orders.
The Issues Presented
The issues presented in this case are:
1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the
principle of local autonomy under Section 16, Article X of the Constitution,
and Section 1, Article V of the Expanded ARMM Organic Act;
2. Whether or not President Arroyo invalidly exercised emergency powers
when she called out the AFP and the PNP to prevent and suppress all
incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato
City; and
3. Whether or not the President had factual bases for her actions.

Petitioner ARMM officials claimed that the President had no factual basis for declaring
a state of emergency, especially in the Province of Sultan Kudarat and the City of
Cotabato, where no critical violent incidents occurred. The deployment of troops and
the taking over of the ARMM constitutes an invalid exercise of the President’s
emergency powers.6 Petitioners asked that Proclamation 1946 as well as AOs 273
The Rulings of the Court
We dismiss the petition.
One. The claim of petitioners that the subject proclamation and administrative orders
violate the principle of local autonomy is anchored on the allegation that, through
them, the President authorized the DILG Secretary to take over the operations of the
ARMM and assume direct governmental powers over the region.
But, in the first place, the DILG Secretary did not take over control of the powers of
the ARMM. After law enforcement agents took respondent Governor of ARMM into
custody for alleged complicity in the Maguindanao massacre, the ARMM Vice-
Governor, petitioner Ansaruddin Adiong, assumed the vacated post on December 10,
2009 pursuant to the rule on succession found in Article VII, Section 12, 14 of RA 9054.
In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional
Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor.15 In short, the
DILG Secretary did not take over the administration or operations of the ARMM.
Two. Petitioners contend that the President unlawfully exercised emergency powers
when she ordered the deployment of AFP and PNP personnel in the places
mentioned in the proclamation.16 But such deployment is not by itself an exercise of
emergency powers as understood under Section 23 (2), Article VI of the Constitution,
which provides:
SECTION 23. x x x (2) In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry out
a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.
The President did not proclaim a national emergency, only a state of emergency in
the three places mentioned. And she did not act pursuant to any law enacted by
Congress that authorized her to exercise extraordinary powers. The calling out of the
armed forces to prevent or suppress lawless violence in such places is a power that
the Constitution directly vests in the President. She did not need a congressional
authority to exercise the same.
Three. The President’s call on the armed forces to prevent or suppress lawless
violence springs from the power vested in her under Section 18, Article VII of the
Constitution, which provides.17
SECTION 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. x x x
While it is true that the Court may inquire into the factual bases for the President’s
exercise of the above power,18 it would generally defer to her judgment on the matter.
As the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora, 19 it is
clearly to the President that the Constitution entrusts the determination of the need for
calling out the armed forces to prevent and suppress lawless violence. Unless it is
shown that such determination was attended by grave abuse of discretion, the Court
will accord respect to the President’s judgment. Thus, the Court said:
If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not
easily quantifiable and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may
use to judge necessity, information necessary to arrive at such judgment might also
prove unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon
which the President might decide that there is a need to call out the armed forces may
be of a nature not constituting technical proof.
On the other hand, the President, as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly confidential
or affecting the security of the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations to avert great loss
of human lives and mass destruction of property. Indeed, the decision to call out the
military to prevent or suppress lawless violence must be done swiftly and decisively if
it were to have any effect at all. x x x.20
Here, petitioners failed to show that the declaration of a state of emergency in the
Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the
President’s exercise of the "calling out" power had no factual basis. They simply
alleged that, since not all areas under the ARMM were placed under a state of
emergency, it follows that the take over of the entire ARMM by the DILG Secretary
had no basis too.21
But, apart from the fact that there was no such take over to begin with, the OSG also
clearly explained the factual bases for the President’s decision to call out the armed
forces, as follows:
The Ampatuan and Mangudadatu clans are prominent families engaged in the
political control of Maguindanao. It is also a known fact that both families have an
arsenal of armed followers who hold elective positions in various parts of the ARMM
and the rest of Mindanao.
Considering the fact that the principal victims of the brutal bloodshed are members of
the Mangudadatu family and the main perpetrators of the brutal killings are members
and followers of the Ampatuan family, both the military and police had to prepare for
and prevent reported retaliatory actions from the Mangudadatu clan and additional
offensive measures from the Ampatuan clan.
xxxx
The Ampatuan forces are estimated to be approximately two thousand four hundred
(2,400) persons, equipped with about two thousand (2,000) firearms, about four
hundred (400) of which have been accounted for. x x x
As for the Mangudadatus, they have an estimated one thousand eight hundred
(1,800) personnel, with about two hundred (200) firearms. x x x
Apart from their own personal forces, both clans have Special Civilian Auxiliary Army WHEREFORE, the petition is DISMISSED for lack of merit.
(SCAA) personnel who support them: about five hundred (500) for the Ampatuans
and three hundred (300) for the Mangudadatus. SO ORDERED.

What could be worse than the armed clash of two warring clans and their armed
supporters, especially in light of intelligence reports on the potential involvement of
rebel armed groups (RAGs).

One RAG was reported to have planned an attack on the forces of Datu Andal
Ampatuan, Sr. to show support and sympathy for the victims. The said attack shall
worsen the age-old territorial dispute between the said RAG and the Ampatuan
family.

xxxx

On the other hand, RAG faction which is based in Sultan Kudarat was reported to
have received three million pesos (₱3,000,000.00) from Datu Andal Ampatuan, Sr. for
the procurement of ammunition. The said faction is a force to reckon with because the
group is well capable of launching a series of violent activities to divert the attention of
the people and the authorities away from the multiple murder case. x x x

In addition, two other factions of a RAG are likely to support the Mangudadatu family.
The Cotabato-based faction has the strength of about five hundred (500) persons and
three hundred seventy-two (372) firearms while the Sultan Kudarat-based faction has
the strength of about four hundred (400) persons and three hundred (300) firearms
and was reported to be moving towards Maguindanao to support the Mangudadatu
clan in its armed fight against the Ampatuans.22

In other words, the imminence of violence and anarchy at the time the President
issued Proclamation 1946 was too grave to ignore and she had to act to prevent
further bloodshed and hostilities in the places mentioned. Progress reports also
indicated that there was movement in these places of both high-powered firearms and
armed men sympathetic to the two clans.23 Thus, to pacify the people’s fears and
stabilize the situation, the President had to take preventive action. She called out the
armed forces to control the proliferation of loose firearms and dismantle the armed
groups that continuously threatened the peace and security in the affected places.

Notably, the present administration of President Benigno Aquino III has not withdrawn
the declaration of a state of emergency under Proclamation 1946. It has been
reported24 that the declaration would not be lifted soon because there is still a need to
disband private armies and confiscate loose firearms. Apparently, the presence of
troops in those places is still necessary to ease fear and tension among the citizenry
and prevent and suppress any violence that may still erupt, despite the passage of
more than a year from the time of the Maguindanao massacre.

Since petitioners are not able to demonstrate that the proclamation of state of
emergency in the subject places and the calling out of the armed forces to prevent or
suppress lawless violence there have clearly no factual bases, the Court must respect
the President’s actions.
G.R. No. 158540 July 8, 2004
SOUTHERN CROSS CEMENT CORPORATION, petitioner,
vs.
THE PHILIPPINE CEMENT MANUFACTURERS CORP., THE SECRETARY OF
THE DEPARTMENT OF TRADE & INDUSTRY, THE SECRETARY OF THE
DEPARTMENT OF FINANCE, and THE COMMISSIONER OF THE BUREAU OF
CUSTOMS, respondents.
DECISION
TINGA, J.:
"Good fences make good neighbors," so observed Robert Frost, the archetype of
traditional New England detachment. The Frost ethos has been heeded by nations
adjusting to the effects of the liberalized global market. 1The Philippines, for one,
enacted Republic Act (Rep. Act) No. 8751 (on the imposition of countervailing duties),
Rep. Act No. 8752 (on the imposition of anti-dumping duties) and, finally, Rep. Act
No. 8800, also known as the Safeguard Measures Act ("SMA") 2 soon after it joined
the General Agreement on Tariff and Trade (GATT) and the World Trade
Organization (WTO) Agreement.3
The SMA provides the structure and mechanics for the imposition of emergency
measures, including tariffs, to protect domestic industries and producers from
increased imports which inflict or could inflict serious injury on them. 4 The wisdom of
the policies behind the SMA, however, is not put into question by the petition at bar.
The questions submitted to the Court relate to the means and the procedures
ordained in the law to ensure that the determination of the imposition or non-
imposition of a safeguard measure is proper.
Antecedent Facts
Petitioner Southern Cross Cement Corporation ("Southern Cross") is a domestic
corporation engaged in the business of cement manufacturing, production,
importation and exportation. Its principal stockholders are Taiheiyo Cement
Corporation and Tokuyama Corporation, purportedly the largest cement
manufacturers in Japan.5
Private respondent Philippine Cement Manufacturers Corporation6 ("Philcemcor") is
an association of domestic cement manufacturers. It has eighteen (18)
members,7 per Record. While Philcemcor heralds itself to be an association of
domestic cement manufacturers, it appears that considerable equity holdings, if not
controlling interests in at least twelve (12) of its member-corporations, were acquired
by the three largest cement manufacturers in the world, namely Financiere Lafarge
S.A. of France, Cemex S.A. de C.V. of Mexico, and Holcim Ltd. of Switzerland
(formerly Holderbank Financiere Glaris, Ltd., then Holderfin B.V.). 8
On 22 May 2001, respondent Department of Trade and Industry ("DTI") accepted an
application from Philcemcor, alleging that the importation of gray Portland cement 9 in
increased quantities has caused declines in domestic production, capacity utilization,
market share, sales and employment; as well as caused depressed local prices.
Accordingly, Philcemcor sought the imposition at first of provisional, then later,
definitive safeguard measures on the import of cement pursuant to the SMA.
Philcemcor filed the application in behalf of twelve (12) of its member-companies.10
After preliminary investigation, the Bureau of Import Services of the DTI, determined
that critical circumstances existed justifying the imposition of provisional
measures.11 On 7 November 2001, the DTI issued an Order, imposing a provisional
measure equivalent to Twenty Pesos and Sixty Centavos (P20.60) per forty (40)
kilogram bag on all importations of gray Portland cement for a period not exceeding
two hundred (200) days from the date of issuance by the Bureau of Customs (BOC)
of the implementing Customs Memorandum Order.12 The corresponding Customs
Memorandum Order was issued on 10 December 2001, to take effect that same day
and to remain in force for two hundred (200) days.13
In the meantime, the Tariff Commission, on 19 November 2001, received a request
from the DTI for a formal investigation to determine whether or not to impose a
definitive safeguard measure on imports of gray Portland cement, pursuant to Section
9 of the SMA and its Implementing Rules and Regulations. A notice of
commencement of formal investigation was published in the newspapers on 21
November 2001. Individual notices were likewise sent to concerned parties, such as
Philcemcor, various importers and exporters, the Embassies of Indonesia, Japan and
Taiwan, contractors/builders associations, industry associations, cement workers'
groups, consumer groups, non-government organizations and concerned government
agencies.14 A preliminary conference was held on 27 November 2001, attended by
several concerned parties, including Southern Cross.15 Subsequently, the Tariff
Commission received several position papers both in support and against
Philcemcor's application.16 The Tariff Commission also visited the corporate offices
and manufacturing facilities of each of the applicant companies, as well as that of
Southern Cross and two other cement importers.17
On 13 March 2002, the Tariff Commission issued its Formal Investigation Report
("Report"). Among the factors studied by the Tariff Commission in its Report were the
market share of the domestic industry,18 production and sales,19 capacity
utilization,20 financial performance and profitability,21 and return on sales.22 The Tariff
Commission arrived at the following conclusions:
1. The circumstances provided in Article XIX of GATT 1994 need not be
demonstrated since the product under consideration (gray Portland cement)
is not the subject of any Philippine obligation or tariff concession under the
WTO Agreement. Nonetheless, such inquiry is governed by the national
 legislation (R.A. 8800) and the terms and conditions of the Agreement on
Safeguards.
2. The collective output of the twelve (12) applicant companies constitutes a
major proportion of the total domestic production of gray Portland cement
and blended Portland cement.
3. Locally produced gray Portland cement and blended Portland cement
(Pozzolan) are "like" to imported gray Portland cement.
4. Gray Portland cement is being imported into the Philippines in increased
quantities, both in absolute terms and relative to domestic production,
starting in 2000. The increase in volume of imports is recent, sudden, sharp
and significant.
5. The industry has not suffered and is not suffering significant overall
impairment in its condition, i.e., serious injury.
6. There is no threat of serious injury that is imminent from imports of gray
Portland cement.
7. Causation has become moot and academic in view of the negative
determination of the elements of serious injury and imminent threat of
serious injury.23
Accordingly, the Tariff Commission made the following recommendation, to wit:
The elements of serious injury and imminent threat of serious injury not
having been established, it is hereby recommended that no definitive general
safeguard measure be imposed on the importation of gray Portland
cement.24
The DTI received the Report on 14 March 2002. After reviewing the report, then DTI
Secretary Manuel Roxas II ("DTI Secretary") disagreed with the conclusion of the
Tariff Commission that there was no serious injury to the local cement industry
caused by the surge of imports.25 In view of this disagreement, the DTI requested an
opinion from the Department of Justice ("DOJ") on the DTI Secretary's scope of
options in acting on the Commission's recommendations. Subsequently, then DOJ
Secretary Hernando Perez rendered an opinion stating that Section 13 of the SMA
precluded a review by the DTI Secretary of the Tariff Commission's negative finding,
or finding that a definitive safeguard measure should not be imposed.26
On 5 April 2002, the DTI Secretary promulgated a Decision. After quoting the
conclusions of the Tariff Commission, the DTI Secretary noted the DTI's
disagreement with the conclusions. However, he also cited the DOJ Opinion advising
the DTI that it was bound by the negative finding of the Tariff Commission. Thus, he
ruled as follows:
The DTI has no alternative but to abide by the [Tariff] Commission's
recommendations.
IN VIEW OF THE FOREGOING, and in accordance with Section 13 of RA
8800 which states:
"In the event of a negative final determination; or if the cash
bond is in excess of the definitive safeguard duty assessed,
the Secretary shall immediately issue, through the Secretary of
Finance, a written instruction to the Commissioner of
Customs, authorizing the return of the cash bond or the
remainder thereof, as the case may be, previously collected as
provisional general safeguard measure within ten (10) days
from the date a final decision has been made; Provided, that
the government shall not be liable for any interest on the
amount to be returned. The Secretary shall not accept for
consideration another petition from the same industry, with
respect to the same imports of the product under
consideration within one (1) year after the date of rendering
such a decision."
The DTI hereby issues the following:
The application for safeguard measures against the importation of gray
Portland cement filed by PHILCEMCOR (Case No. 02-2001) is hereby
denied.27 (Emphasis in the original)
Philcemcor received a copy of the DTI Decision on 12 April 2002. Ten days later, it
filed with the Court of Appeals a Petition for Certiorari, Prohibition and
Mandamus28 seeking to set aside the DTI Decision, as well as the Tariff Commission's
Report. Philcemcor likewise applied for a Temporary Restraining Order/Injunction to
enjoin the DTI and the BOC from implementing the questioned Decision and Report.
It prayed that the Court of Appeals direct the DTI Secretary to disregard the Report
and to render judgment independently of the Report. Philcemcor argued that the DTI
Secretary, vested as he is under the law with the power of review, is not bound to
adopt the recommendations of the Tariff Commission; and, that the Report is void, as
it is predicated on a flawed framework, inconsistent inferences and erroneous
methodology.29
On 10 June 2002, Southern Cross filed its Comment.30 It argued that the Court of
Appeals had no jurisdiction over Philcemcor's Petition, for it is on the Court of Tax
Appeals ("CTA") that the SMA conferred jurisdiction to review rulings of the Secretary
in connection with the imposition of a safeguard measure. It likewise argued that
Philcemcor's resort to the special civil action of certiorari is improper, considering that
what Philcemcor sought to rectify is an error of judgment and not an error of
jurisdiction or grave abuse of discretion, and that a petition for review with the CTA
was available as a plain, speedy and adequate remedy. Finally, Southern Cross
echoed the DOJ Opinion that Section 13 of the SMA precludes a review by the DTI
Secretary of a negative finding of the Tariff Commission.
After conducting a hearing on 19 June 2002 on Philcemcor's application for
preliminary injunction, the Court of Appeals' Twelfth Division31 granted the writ sought
in its Resolution dated 21 June 2002.32 Seven days later, on 28 June 2002, the two-
hundred (200)-day period for the imposition of the provisional measure expired.
Despite the lapse of the period, the BOC continued to impose the provisional
measure on all importations of Portland cement made by Southern Cross. The
uninterrupted assessment of the tariff, according to Southern Cross, worked to its
detriment to the point that the continued imposition would eventually lead to its
closure.33
Southern Cross timely filed a Motion for Reconsideration of the Resolution on 9
September 2002. Alleging that Philcemcor was not entitled to provisional relief,
Southern Cross likewise sought a clarificatory order as to whether the grant of the writ
of preliminary injunction could extend the earlier imposition of the provisional measure
beyond the two hundred (200)-day limit imposed by law. The appeals' court failed to
take immediate action on Southern Cross's motion despite the four (4) motions for
early resolution the latter filed between September of 2002 and February of 2003.
After six (6) months, on 19 February 2003, the Court of Appeals directed Philcemcor
to comment on Southern Cross's Motion for Reconsideration.34 After Philcemcor filed
its Opposition35 on 13 March 2003, Southern Cross filed another set of four (4)
motions for early resolution.
Despite the efforts of Southern Cross, the Court of Appeals failed to directly resolve
the Motion for Reconsideration. Instead, on 5 June 2003, it rendered
a Decision,36 granting in part Philcemcor's petition. The appellate court ruled that it
had jurisdiction over the petition for certiorari since it alleged grave abuse of
discretion. It refused to annul the findings of the Tariff Commission, citing the rule that
factual findings of administrative agencies are binding upon the courts and its
corollary, that courts should not interfere in matters addressed to the sound discretion
and coming under the special technical knowledge and training of such
agencies.37 Nevertheless, it held that the DTI Secretary is not bound by the factual
findings of the Tariff Commission since such findings are merely recommendatory and
they fall within the ambit of the Secretary's discretionary review. It determined that the
legislative intent is to grant the DTI Secretary the power to make a final decision on
the Tariff Commission's recommendation.38 The dispositive portion of
the Decision reads:
WHEREFORE, based on the foregoing premises, petitioner's prayer to set
aside the findings of the Tariff Commission in its assailed Report dated
March 13, 2002 is DENIED. On the other hand, the assailed April 5, 2002
Decision of the Secretary of the Department of Trade and Industry is
hereby SET ASIDE. Consequently, the case is REMANDED to the public
respondent Secretary of Department of Trade and Industry for a final
decision in accordance with RA 8800 and its Implementing Rules and
Regulations.
SO ORDERED.39
On 23 June 2003, Southern Cross filed the present petition, assailing the appellate
court's Decision for departing from the accepted and usual course of judicial
proceedings, and not deciding the substantial questions in accordance with law and
jurisprudence. The petition argues in the main that the Court of Appeals has no
jurisdiction over Philcemcor's petition, the proper remedy being a petition for review
with the CTA conformably with the SMA, and; that the factual findings of the Tariff
Commission on the existence or non-existence conditions warranting the imposition of
general safeguard measures are binding upon the DTI Secretary.
The timely filing of Southern Cross's petition before this Court necessarily prevented
the Court of Appeals Decisionfrom becoming final.40 Yet on 25 June 2003, the DTI
Secretary issued a new Decision, ruling this time that that in light of the appellate
court's Decision there was no longer any legal impediment to his deciding
Philcemcor's application for definitive safeguard measures. 41 He made a
determination that, contrary to the findings of the Tariff Commission, the local cement
industry had suffered serious injury as a result of the import surges. 42 Accordingly, he
imposed a definitive safeguard measure on the importation of gray Portland cement,
in the form of a definitive safeguard duty in the amount of P20.60/40 kg. bag for three
years on imported gray Portland Cement.43
On 7 July 2003, Southern Cross filed with the Court a "Very Urgent Application for a
Temporary Restraining Order and/or A Writ of Preliminary Injunction"
("TRO Application"), seeking to enjoin the DTI Secretary from enforcing
his Decision of 25 June 2003 in view of the pending petition before this Court.
Philcemcor filed an opposition, claiming, among others, that it is not this Court but the
CTA that has jurisdiction over the application under the law.
On 1 August 2003, Southern Cross filed with the CTA a Petition for Review, assailing
the DTI Secretary's 25 June 2003 Decision which imposed the definite safeguard
measure. Prescinding from this action, Philcemcor filed with this Court a Manifestation
and Motion to Dismiss in regard to Southern Cross's petition, alleging that it
deliberately and willfully resorted to forum-shopping. It points out that Southern
Cross's TRO Application seeks to enjoin the DTI Secretary's second decision, while
its Petition before the CTA prays for the annulment of the same decision. 44
Reiterating its Comment on Southern Cross's Petition for Review, Philcemcor also
argues that the CTA, being a special court of limited jurisdiction, could only review the
ruling of the DTI Secretary when a safeguard measure is imposed, and that the
factual findings of the Tariff Commission are not binding on the DTI Secretary.45
After giving due course to Southern Cross's Petition, the Court called the case for oral
argument on 18 February 2004.46 At the oral argument, attended by the counsel for
Philcemcor and Southern Cross and the Office of the Solicitor General, the Court
simplified the issues in this wise: (i) whether the Decision of the DTI Secretary is
appealable to the CTA or the Court of Appeals; (ii) assuming that the Court of
Appeals has jurisdiction, whether its Decision is in accordance with law; and, (iii)
whether a Temporary Restraining Order is warranted.47
During the oral arguments, counsel for Southern Cross manifested that due to the
imposition of the general safeguard measures, Southern Cross was forced to cease
operations in the Philippines in November of 2003.48
Propriety of the Temporary Restraining Order
Before the merits of the Petition, a brief comment on Southern Cross's application for
provisional relief. It sought to enjoin the DTI Secretary from enforcing the definitive
safeguard measure he imposed in his 25 June 2003 Decision. The Court did not grant
the provisional relief for it would be tantamount to enjoining the collection of taxes, a
peremptory judicial act which is traditionally frowned upon, 49 unless there is a clear
statutory basis for it.50 In that regard, Section 218 of the Tax Reform Act of 1997
prohibits any court from granting an injunction to restrain the collection of any national
internal revenue tax, fee or charge imposed by the internal revenue code. 51 A similar
philosophy is expressed by Section 29 of the SMA, which states that the filing of a
petition for review before the CTA does not stop, suspend, or otherwise toll the
imposition or collection of the appropriate tariff duties or the adoption of other
appropriate safeguard measures.52 This evinces a clear legislative intent that the
imposition of safeguard measures, despite the availability of judicial review, should
not be enjoined notwithstanding any timely appeal of the imposition.
The Forum-Shopping Issue
In the same breath, we are not convinced that the allegation of forum-shopping has
been duly proven, or that sanction should befall upon Southern Cross and its counsel.
The standard by Section 5, Rule 7 of the 1997 Rules of Civil Procedure in order that
sanction may be had is that "the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping."53 The standard implies a malicious intent to
subvert procedural rules, and such state of mind is not evident in this case.
The Jurisdictional Issue
On to the merits of the present petition.
In its assailed Decision, the Court of Appeals, after asserting only in brief that it had
jurisdiction over Philcemcor's Petition, discussed the issue of whether or not the DTI
Secretary is bound to adopt the negative recommendation of the Tariff Commission
on the application for safeguard measure. The Court of Appeals maintained that it had
jurisdiction over the petition, as it alleged grave abuse of discretion on the part of the
DTI Secretary, thus:
A perusal of the instant petition reveals allegations of grave abuse of
discretion on the part of the DTI Secretary in rendering the assailed April 5,
2002 Decision wherein it was ruled that he had no alternative but to abide by
the findings of the Commission on the matter of safeguard measures for the
local cement industry. Abuse of discretion is admittedly within the ambit of
certiorari.
Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. It is alleged that, in the
assailed Decision, the DTI Secretary gravely abused his discretion in
wantonly evading to discharge his duty to render an independent
determination or decision in imposing a definitive safeguard measure.54
We do not doubt that the Court of Appeals' certiorari powers extend to correcting
grave abuse of discretion on the part of an officer exercising judicial or quasi-judicial
functions.55 However, the special civil action of certiorari is available only when there
is no plain, speedy and adequate remedy in the ordinary course of law. 56 Southern
Cross relies on this limitation, stressing that Section 29 of the SMA is a plain, speedy
and adequate remedy in the ordinary course of law which Philcemcor did not avail of.
The Section reads:
Section 29. Judicial Review. – Any interested party who is adversely affected
by the ruling of the Secretary in connection with the imposition of a
safeguard measure may file with the CTA, a petition for review of such
ruling within thirty (30) days from receipt thereof. Provided, however, that the
filing of such petition for review shall not in any way stop, suspend or
otherwise toll the imposition or collection of the appropriate tariff duties or the
adoption of other appropriate safeguard measures, as the case may be.
The petition for review shall comply with the same requirements and shall
follow the same rules of procedure and shall be subject to the same
disposition as in appeals in connection with adverse rulings on tax matters to
the Court of Appeals.57 (Emphasis supplied)
It is not difficult to divine why the legislature singled out the CTA as the court with
jurisdiction to review the ruling of the DTI Secretary in connection with the imposition
of a safeguard measure. The Court has long recognized the legislative determination
to vest sole and exclusive jurisdiction on matters involving internal revenue and
customs duties to such a specialized court.58 By the very nature of its function, the
CTA is dedicated exclusively to the study and consideration of tax problems and has
necessarily developed an expertise on the subject. 59
At the same time, since the CTA is a court of limited jurisdiction, its jurisdiction to take
cognizance of a case should be clearly conferred and should not be deemed to exist
on mere implication.60 Concededly, Rep. Act No. 1125, the statute creating the CTA,
does not extend to it the power to review decisions of the DTI Secretary in connection
with the imposition of safeguard measures.61 Of course, at that time which was before
the advent of trade liberalization the notion of safeguard measures or safety nets was
not yet in vogue.
Undeniably, however, the SMA expanded the jurisdiction of the CTA by including
review of the rulings of the DTI Secretary in connection with the imposition of
safeguard measures. However, Philcemcor and the public respondents agree that the
CTA has appellate jurisdiction over a decision of the DTI Secretary imposing a
safeguard measure, but not when his ruling is not to impose such measure.
In a related development, Rep. Act No. 9282, enacted on 30 March 2004, expressly
vests unto the CTA jurisdiction over "[d]ecisions of the Secretary of Trade and
Industry, in case of nonagricultural product, commodity or article xxx involving
xxx safeguard measures under Republic Act No. 8800, where either party may
appeal the decision to impose or not to impose said duties."62 Had Rep. Act No.
9282 already been in force at the beginning of the incidents subject of this case, there
would have been no need to make any deeper inquiry as to the extent of the CTA's
jurisdiction. But as Rep. Act No. 9282 cannot be applied retroactively to the present
case, the question of whether such jurisdiction extends to a decision not to impose a
safeguard measure will have to be settled principally on the basis of the SMA.
Under Section 29 of the SMA, there are three requisites to enable the CTA to acquire
jurisdiction over the petition for review contemplated therein: (i) there must be a ruling
by the DTI Secretary; (ii) the petition must be filed by an interested party adversely
affected by the ruling; and (iii) such ruling must be in connection with the imposition of
a safeguard measure. The first two requisites are clearly present. The third requisite
deserves closer scrutiny.
Contrary to the stance of the public respondents and Philcemcor, in this case where
the DTI Secretary decides not to impose a safeguard measure, it is the CTA which
has jurisdiction to review his decision. The reasons are as follows:
First. Split jurisdiction is abhorred.
Essentially, respondents' position is that judicial review of the DTI Secretary's ruling is
exercised by two different courts, depending on whether or not it imposes a safeguard
measure, and in either case the court exercising jurisdiction does so to the exclusion
of the other. Thus, if the DTI decision involves the imposition of a safeguard measure
it is the CTA which has appellate jurisdiction; otherwise, it is the Court of Appeals.
Such setup is as novel and unusual as it is cumbersome and unwise. Essentially,
respondents advocate that Section 29 of the SMA has established split appellate
jurisdiction over rulings of the DTI Secretary on the imposition of safeguard measure.
This interpretation cannot be favored, as the Court has consistently refused to
sanction split jurisdiction.63 The power of the DTI Secretary to adopt or withhold a
safeguard measure emanates from the same statutory source, and it boggles the
mind why the appeal modality would be such that one appellate court is qualified if
what is to be reviewed is a positive determination, and it is not if what is appealed is a
negative determination. In deciding whether or not to impose a safeguard measure,
provisional or general, the DTI Secretary would be evaluating only one body of facts
and applying them to one set of laws. The reviewing tribunal will be called upon to
examine the same facts and the same laws, whether or not the determination is
positive or negative.
In short, if we were to rule for respondents we would be confirming the exercise by
two judicial bodies of jurisdiction over basically the same subject matter¾precisely the
split-jurisdiction situation which is anathema to the orderly administration of
justice.64 The Court cannot accept that such was the legislative motive especially
considering that the law expressly confers on the CTA, the tribunal with the
specialized competence over tax and tariff matters, the role of judicial review without
mention of any other court that may exercise corollary or ancillary jurisdiction in
relation to the SMA. The provision refers to the Court of Appeals but only in regard to
procedural rules and dispositions of appeals from the CTA to the Court of Appeals. 65
The principle enunciated in Tejada v. Homestead Property Corporation66 is applicable
to the case at bar:
The Court agrees with the observation of the [that] when an administrative
agency or body is conferred quasi-judicial functions, all controversies
relating to the subject matter pertaining to its specialization are
deemed to be included within the jurisdiction of said administrative
agency or body. Split jurisdiction is not favored.67
Second. The interpretation of the provisions of the SMA favors vesting untrammeled
appellate jurisdiction on the CTA.
A plain reading of Section 29 of the SMA reveals that Congress did not expressly bar
the CTA from reviewing a negative determination by the DTI Secretary nor conferred
on the Court of Appeals such review authority. Respondents note, on the other hand,
that neither did the law expressly grant to the CTA the power to review a negative
determination. However, under the clear text of the law, the CTA is vested with
jurisdiction to review the ruling of the DTI Secretary "in connection with the
imposition of a safeguard measure." Had the law been couched instead to incorporate
the phrase "the ruling imposing a safeguard measure," then respondent's claim would
have indisputable merit. Undoubtedly, the phrase "in connection with" not only
qualifies but clarifies the succeeding phrase "imposition of a safeguard measure." As
expounded later, the phrase also encompasses the opposite or converse ruling which
is the non-imposition of a safeguard measure.
In the American case of Shaw v. Delta Air Lines, Inc.,68 the United States Supreme
Court, in interpreting a key provision of the Employee Retirement Security Act of
1974, construed the phrase "relates to" in its normal sense which is the same as "if it
has connection with or reference to."69 There is no serious dispute that the phrase "in
connection with" is synonymous to "relates to" or "reference to," and that all three
phrases are broadly expansive. This is affirmed not just by jurisprudential fiat, but also
the acquired connotative meaning of "in connection with" in common parlance.
Consequently, with the use of the phrase "in connection with," Section 29 allows the
CTA to review not only the ruling imposing a safeguard measure, but all other rulings
related or have reference to the application for such measure.
Now, let us determine the maximum scope and reach of the phrase "in connection
with" as used in Section 29 of the SMA. A literalist reading or linguistic survey may
not satisfy. Even the US Supreme Court in New York State Blue Cross Plans v.
Travelers Ins.70 conceded that the phrases "relate to" or "in connection with" may be
extended to the farthest stretch of indeterminacy for, universally, relations or
connections are infinite and stop nowhere.71 Thus, in the case the US High Court,
examining the same phrase of the same provision of law involved in Shaw, resorted
to looking at the statute and its objectives as the alternative to an "uncritical
literalism."72 A similar inquiry into the other provisions of the SMA is in order to
determine the scope of review accorded therein to the CTA. 73
The authority to decide on the safeguard measure is vested in the DTI Secretary in
the case of non-agricultural products, and in the Secretary of the Department of
Agriculture in the case of agricultural products.74 Section 29 is likewise explicit that
only the rulings of the DTI Secretary or the Agriculture Secretary may be reviewed by
the CTA.75 Thus, the acts of other bodies that were granted some powers by the
SMA, such as the Tariff Commission, are not subject to direct review by the CTA.
Under the SMA, the Department Secretary concerned is authorized to decide on
several matters. Within thirty (30) days from receipt of a petition seeking the
imposition of a safeguard measure, or from the date he made motu proprio initiation,
the Secretary shall make a preliminary determination on whether the increased
imports of the product under consideration substantially cause or threaten to cause
serious injury to the domestic industry.76 Such ruling is crucial since only upon the
Secretary's positive preliminary determination that a threat to the domestic industry
exists shall the matter be referred to the Tariff Commission for formal investigation,
this time, to determine whether the general safeguard measure should be imposed or
not.77 Pursuant to a positive preliminary determination, the Secretary may also decide
that the imposition of a provisional safeguard measure would be warranted under
Section 8 of the SMA.78 The Secretary is also authorized to decide, after receipt of the
report of the Tariff Commission, whether or not to impose the general safeguard
measure, and if in the affirmative, what general safeguard measures should be
applied.79 Even after the general safeguard measure is imposed, the Secretary is
empowered to extend the safeguard measure,80 or terminate, reduce or modify his
previous rulings on the general safeguard measure.81
With the explicit grant of certain powers involving safeguard measures by the SMA on
the DTI Secretary, it follows that he is empowered to rule on several issues. These
are the issues which arise in connection with, or in relation to, the imposition of a
safeguard measure. They may arise at different stages – the preliminary investigation
stage, the post-formal investigation stage, or the post-safeguard measure stage – yet
all these issues do become ripe for resolution because an initiatory action has been
taken seeking the imposition of a safeguard measure. It is the initiatory action for the
imposition of a safeguard measure that sets the wheels in motion, allowing the
Secretary to make successive rulings, beginning with the preliminary determination.
Clearly, therefore, the scope and reach of the phrase "in connection with," as
intended by Congress, pertain to all rulings of the DTI Secretary or Agriculture
Secretary which arise from the time an application or motu proprioinitiation for the
imposition of a safeguard measure is taken. Indeed, the incidents which require
resolution come to the fore only because there is an initial application or action
seeking the imposition of a safeguard measure. From the legislative standpoint, it was
a matter of sense and practicality to lump up the questions related to the initiatory
application or action for safeguard measure and to assign only one court and; that is
the CTA to initially review all the rulings related to such initiatory application or action.
Both directions Congress put in place by employing the phrase "in connection with" in
the law.
Given the relative expanse of decisions subject to judicial review by the CTA under
Section 29, we do not doubt that a negative ruling refusing to impose a safeguard
measure falls within the scope of its jurisdiction. On a literal level, such negative ruling
is "a ruling of the Secretary in connection with the imposition of a safeguard
measure," as it is one of the possible outcomes that may result from the initial
application or action for a safeguard measure. On a more critical level, the rulings of
the DTI Secretary in connection with a safeguard measure, however diverse the
outcome may be, arise from the same grant of jurisdiction on the DTI Secretary by the
SMA.82 The refusal by the DTI Secretary to grant a safeguard measure involves the
same grant of authority, the same statutory prescriptions, and the same degree of
discretion as the imposition by the DTI Secretary of a safeguard measure.
The position of the respondents is one of "uncritical literalism" 83 incongruent with the
animus of the law. Moreover, a fundamentalist approach to Section 29 is not
warranted, considering the absurdity of the consequences.
Third. Interpretatio Talis In Ambiguis Semper Fienda Est, Ut Evitur Inconveniens Et
Absurdum.84
Even assuming arguendo that Section 29 has not expressly granted the CTA
jurisdiction to review a negative ruling of the DTI Secretary, the Court is precluded
from favoring an interpretation that would cause inconvenience and
absurdity.85 Adopting the respondents' position favoring the CTA's minimal jurisdiction
would unnecessarily lead to illogical and onerous results.
Indeed, it is illiberal to assume that Congress had intended to provide appellate relief
to rulings imposing a safeguard measure but not to those declining to impose the
measure. Respondents might argue that the right to relief from a negative ruling is not
lost since the applicant could, as Philcemcor did, question such ruling through a
special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, in
lieu of an appeal to the CTA. Yet these two reliefs are of differing natures and
gravamen. While an appeal may be predicated on errors of fact or errors of law, a
special civil action for certiorari is grounded on grave abuse of discretion or lack of or
excess of jurisdiction on the part of the decider. For a special civil action for certiorari
to succeed, it is not enough that the questioned act of the respondent is wrong. As the
Court clarified in Sempio v. Court of Appeals:
A tribunal, board or officer acts without jurisdiction if it/he does not have the
legal power to determine the case. There is excess of jurisdiction where,
being clothed with the power to determine the case, the tribunal, board or
officer oversteps its/his authority as determined by law. And there is grave
abuse of discretion where the tribunal, board or officer acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of his judgment as to
be said to be equivalent to lack of jurisdiction. Certiorari is often resorted to
in order to correct errors of jurisdiction. Where the error is one of law or of
fact, which is a mistake of judgment, appeal is the remedy.86
It is very conceivable that the DTI Secretary, after deliberate thought and careful
evaluation of the evidence, may either make a negative preliminary determination as
he is so empowered under Section 7 of the SMA, or refuse to adopt the definitive
safeguard measure under Section 13 of the same law. Adopting the respondents'
theory, this negative ruling is susceptible to reversal only through a special civil action
for certiorari, thus depriving the affected party the chance to elevate the ruling on
appeal on the rudimentary grounds of errors in fact or in law. Instead, and despite
whatever indications that the DTI Secretary acted with measure and within the
bounds of his jurisdiction are, the aggrieved party will be forced to resort to a
gymnastic exercise, contorting the straight and narrow in an effort to discombobulate
the courts into believing that what was within was actually beyond and what was
studied and deliberate actually whimsical and capricious. What then would be the
remedy of the party aggrieved by a negative ruling that simply erred in interpreting the
facts or the law? It certainly cannot be the special civil action for certiorari, for as the
Court held in Silverio v. Court of Appeals: "Certiorari is a remedy narrow in its scope
and inflexible in its character. It is not a general utility tool in the legal workshop." 87
Fortunately, this theoretical quandary need not come to pass. Section 29 of the SMA
is worded in such a way that it places under the CTA's judicial review all rulings of the
DTI Secretary, which are connected with the imposition of a safeguard measure. This
is sound and proper in light of the specialized jurisdiction of the CTA over tax matters.
In the same way that a question of whether to tax or not to tax is properly a tax
matter, so is the question of whether to impose or not to impose a definitive safeguard
measure.
On another note, the second paragraph of Section 29 similarly reveals the legislative
intent that rulings of the DTI Secretary over safeguard measures should first be
reviewed by the CTA and not the Court of Appeals. It reads:
The petition for review shall comply with the same requirements and shall
follow the same rules of procedure and shall be subject to the same
disposition as in appeals in connection with adverse rulings on tax matters to
the Court of Appeals.
This is the only passage in the SMA in which the Court of Appeals is mentioned. The
express wish of Congress is that the petition conform to the requirements and
procedure under Rule 43 of the Rules of Civil Procedure. Since Congress mandated
that the form and procedure adopted be analogous to a review of a CTA ruling by the
Court of Appeals, the legislative contemplation could not have been that the appeal
be directly taken to the Court of Appeals.
Issue of Binding Effect of Tariff
Commission's Factual Determination
on DTI Secretary.
The next issue for resolution is whether the factual determination made by the Tariff
Commission under the SMA is binding on the DTI Secretary. Otherwise stated, the
question is whether the DTI Secretary may impose general safeguard measures in
the absence of a positive final determination by the Tariff Commission.
The Court of Appeals relied upon Section 13 of the SMA in ruling that the findings of
the Tariff Commission do not necessarily constitute a final decision. Section 13 details
the procedure for the adoption of a safeguard measure, as well as the steps to be
taken in case there is a negative final determination. The implication of the Court of
Appeals' holding is that the DTI Secretary may adopt a definitive safeguard measure,
notwithstanding a negative determination made by the Tariff Commission.
Undoubtedly, Section 13 prescribes certain limitations and restrictions before general
safeguard measures may be imposed. However, the most fundamental restriction
on the DTI Secretary's power in that respect is contained in Section 5 of the
SMA¾that there should first be a positive final determination of the Tariff
Commission¾which the Court of Appeals curiously all but ignored. Section 5 reads:
Sec. 5. Conditions for the Application of General Safeguard Measures. – The
Secretary shall apply a general safeguard measure upon a positive final
determination of the [Tariff] Commission that a product is being imported
into the country in increased quantities, whether absolute or relative to the
domestic production, as to be a substantial cause of serious injury or threat
thereof to the domestic industry; however, in the case of non-agricultural
products, the Secretary shall first establish that the application of such
safeguard measures will be in the public interest. (emphasis supplied)
The plain meaning of Section 5 shows that it is the Tariff Commission that has the
power to make a "positive final determination." This power lodged in the Tariff
Commission, must be distinguished from the power to impose the general safeguard
measure which is properly vested on the DTI Secretary.88
All in all, there are two condition precedents that must be satisfied before the DTI
Secretary may impose a general safeguard measure on grey Portland cement. First,
there must be a positive final determination by the Tariff Commission that a product is
being imported into the country in increased quantities (whether absolute or relative to
domestic production), as to be a substantial cause of serious injury or threat to the
domestic industry. Second, in the case of non-agricultural products the Secretary
must establish that the application of such safeguard measures is in the public
interest.89 As Southern Cross argues, Section 5 is quite clear-cut, and it is impossible
to finagle a different conclusion even through overarching methods of statutory
construction. There is no safer nor better settled canon of interpretation that when
language is clear and unambiguous it must be held to mean what it plainly
expresses:90 In the quotable words of an illustrious member of this Court, thus:
[I]f a statute is clear, plain and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. The verba legis or
plain meaning rule rests on the valid presumption that the words employed
by the legislature in a statute correctly express its intent or will and preclude
the court from construing it differently. The legislature is presumed to know
the meaning of the words, to have used words advisedly, and to have
expressed its intent by the use of such words as are found in the statute. 91
Moreover, Rule 5 of the Implementing Rules and Regulations of the SMA,92 which
interprets Section 5 of the law, likewise requires a positive final determination on the
part of the Tariff Commission before the application of the general safeguard
measure.
The SMA establishes a distinct allocation of functions between the Tariff Commission
and the DTI Secretary. The plain meaning of Section 5 shows that it is the Tariff
Commission that has the power to make a "positive final determination." This power,
which belongs to the Tariff Commission, must be distinguished from the power to
impose general safeguard measure properly vested on the DTI Secretary. The
distinction is vital, as a "positive final determination" clearly antecedes, as a condition
precedent, the imposition of a general safeguard measure. At the same time, a
positive final determination does not necessarily result in the imposition of a general
safeguard measure. Under Section 5, notwithstanding the positive final determination
of the Tariff Commission, the DTI Secretary is tasked to decide whether or not that
the application of the safeguard measures is in the public interest.
It is also clear from Section 5 of the SMA that the positive final determination to be
undertaken by the Tariff Commission does not entail a mere gathering of statistical
data. In order to arrive at such determination, it has to establish causal linkages from
the statistics that it compiles and evaluates: after finding there is an importation in
increased quantities of the product in question, that such importation is a substantial
cause of serious threat or injury to the domestic industry.
The Court of Appeals relies heavily on the legislative record of a congressional
debate during deliberations on the SMA to assert a purported legislative intent that
the findings of the Tariff Commission do not bind the DTI Secretary. 93 Yet as
explained earlier, the plain meaning of Section 5 emphasizes that only if the Tariff
Commission renders a positive determination could the DTI Secretary impose a
safeguard measure. Resort to the congressional records to ascertain legislative intent
is not warranted if a statute is clear, plain and free from ambiguity. The legislature is
presumed to know the meaning of the words, to have used words advisedly, and to
have expressed its intent by the use of such words as are found in the statute.94
Indeed, the legislative record, if at all to be availed of, should be approached with
extreme caution, as legislative debates and proceedings are powerless to vary the
terms of the statute when the meaning is clear.95 Our holding in Civil Liberties Union
v. Executive Secretary96 on the resort to deliberations of the constitutional convention
to interpret the Constitution is likewise appropriate in ascertaining statutory intent:
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason
and purpose of the resulting Constitution, resort thereto may be had only
when other guides fail as said proceedings are powerless to vary the terms
of the Constitution when the meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to
the views of the large majority who did not talk xxx. We think it safer to
construe the constitution from what appears upon its face." 97
Moreover, it is easy to selectively cite passages, sometimes out of their proper
context, in order to assert a misleading interpretation. The effect can be dangerous.
Minority or solitary views, anecdotal ruminations, or even the occasional crude
witticisms, may improperly acquire the mantle of legislative intent by the sole virtue of
their publication in the authoritative congressional record. Hence, resort to legislative
deliberations is allowable when the statute is crafted in such a manner as to leave
room for doubt on the real intent of the legislature.
Section 5 plainly evinces legislative intent to restrict the DTI Secretary's power to
impose a general safeguard measure by preconditioning such imposition on a positive
determination by the Tariff Commission. Such legislative intent should be given full
force and effect, as the executive power to impose definitive safeguard measures is
but a delegated power¾the power of taxation, by nature and by command of the
fundamental law, being a preserve of the legislature.98 Section 28(2), Article VI of the
1987 Constitution confirms the delegation of legislative power, yet ensures that the
prerogative of Congress to impose limitations and restrictions on the executive
exercise of this power:
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.99
The safeguard measures which the DTI Secretary may impose under the SMA may
take the following variations, to wit: (a) an increase in, or imposition of any duty on the
imported product; (b) a decrease in or the imposition of a tariff-rate quota on the
product; (c) a modification or imposition of any quantitative restriction on the
importation of the product into the Philippines; (d) one or more appropriate adjustment
measures, including the provision of trade adjustment assistance; and (e) any
combination of the above-described actions. Except for the provision of trade
adjustment assistance, the measures enumerated by the SMA are essentially
imposts, which precisely are the subject of delegation under Section 28(2), Article VI
of the 1987 Constitution.100
This delegation of the taxation power by the legislative to the executive is authorized
by the Constitution itself.101 At the same time, the Constitution also grants the
delegating authority (Congress) the right to impose restrictions and limitations on the
taxation power delegated to the President.102 The restrictions and limitations imposed
by Congress take on the mantle of a constitutional command, which the executive
branch is obliged to observe.
The SMA empowered the DTI Secretary, as alter ego of the President,103 to impose
definitive general safeguard measures, which basically are tariff imposts of the type
spoken of in the Constitution. However, the law did not grant him full, uninhibited
discretion to impose such measures. The DTI Secretary authority is derived from the
SMA; it does not flow from any inherent executive power. Thus, the limitations
imposed by Section 5 are absolute, warranted as they are by a constitutional fiat.104
Philcemcor cites our 1912 ruling in Lamb v. Phipps105 to assert that the DTI Secretary,
having the final decision on the safeguard measure, has the power to evaluate the
findings of the Tariff Commission and make an independent judgment thereon. Given
the constitutional and statutory limitations governing the present case, the citation is
misplaced. Lamb pertained to the discretion of the Insular Auditor of the Philippine
Islands, whom, as the Court recognized, "[t]he statutes of the United States require[d]
xxx to exercise his judgment upon the legality xxx [of] provisions of law and
resolutions of Congress providing for the payment of money, the means of procuring
testimony upon which he may act."106
Thus in Lamb, while the Court recognized the wide latitude of discretion that may
have been vested on the Insular Auditor, it also recognized that such latitude flowed
from, and is consequently limited by, statutory grant. However, in this case, the
provision of the Constitution in point expressly recognizes the authority of Congress to
prescribe limitations in the case of tariffs, export/import quotas and other such
safeguard measures. Thus, the broad discretion granted to the Insular Auditor of the
Philippine Islands cannot be analogous to the discretion of the DTI Secretary which is
circumscribed by Section 5 of the SMA.
For that matter, Cariño v. Commissioner on Human Rights,107 likewise cited by
Philcemcor, is also inapplicable owing to the different statutory regimes prevailing
over that case and the present petition. In Cariño, the Court ruled that the
constitutional power of the Commission on Human Rights (CHR) to investigate human
rights' violations did not extend to adjudicating claims on the merits. 108 Philcemcor
claims that the functions of the Tariff Commission being "only investigatory," it could
neither decide nor adjudicate.109
The applicable law governing the issue in Cariño is Section 18, Article XIII of the
Constitution, which delineates the powers and functions of the CHR. The provision
does not vest on the CHR the power to adjudicate cases, but only to investigate all
forms of human rights violations.110 Yet, without modifying the thorough disquisition of
the Court in Cariño on the general limitations on the investigatory power, the
precedent is inapplicable because of the difference in the involved statutory
frameworks. The Constitution does not repose binding effect on the results of the
CHR's investigation.111 On the other hand, through Section 5 of the SMA and under
the authority of Section 28(2), Article VI of the Constitution, Congress did intend to
bind the DTI Secretary to the determination made by the Tariff Commission. 112 It is of
no consequence that such determination results from the exercise of investigatory
powers by the Tariff Commission since Congress is well within its constitutional
mandate to limit the authority of the DTI Secretary to impose safeguard measures in
the manner that it sees fit.
The Court of Appeals and Philcemcor also rely on Section 13 of the SMA and Rule 13
of the SMA's Implementing Rules in support of the view that the DTI Secretary may
decide independently of the determination made by the Tariff Commission.
Admittedly, there are certain infelicities in the language of Section 13 and Rule 13.
But reliance should not be placed on the textual imprecisions. Rather, Section 13 and
Rule 13 must be viewed in light of the fundamental prescription imposed by Section
5. 113
Section 13 of the SMA lays down the procedure to be followed after the Tariff
Commission renders its report. The provision reads in full:
SEC. 13. Adoption of Definitive Measures. — Upon its positive
determination, the Commission shall recommend to the Secretary an
appropriate definitive measure, in the form of:
(a) An increase in, or imposition of, any duty on the imported product;
(b) A decrease in or the imposition of a tariff-rate quota (MAV) on the
product;
(c) A modification or imposition of any quantitative restriction on the
importation of the product into the Philippines;
(d) One or more appropriate adjustment measures, including the provision of
trade adjustment assistance;
(e) Any combination of actions described in subparagraphs (a) to (d).
The Commission may also recommend other actions, including the initiation
of international negotiations to address the underlying cause of the increase
of imports of the product, to alleviate the injury or threat thereof to the
domestic industry, and to facilitate positive adjustment to import competition.
The general safeguard measure shall be limited to the extent of redressing
or preventing the injury and to facilitate adjustment by the domestic industry
from the adverse effects directly attributed to the increased
imports: Provided, however, That when quantitative import restrictions are
used, such measures shall not reduce the quantity of imports below the
average imports for the three (3) preceding representative years, unless
clear justification is given that a different level is necessary to prevent or
remedy a serious injury.
A general safeguard measure shall not be applied to a product originating
from a developing country if its share of total imports of the product is less
than three percent (3%): Provided, however, That developing countries with
less than three percent (3%) share collectively account for not more than
nine percent (9%) of the total imports.
The decision imposing a general safeguard measure, the duration of which
is more than one (1) year, shall be reviewed at regular intervals for purposes
of liberalizing or reducing its intensity. The industry benefiting from the
application of a general safeguard measure shall be required to show
positive adjustment within the allowable period. A general safeguard
measure shall be terminated where the benefiting industry fails to show any
improvement, as may be determined by the Secretary.
The Secretary shall issue a written instruction to the heads of the concerned
government agencies to implement the appropriate general safeguard
measure as determined by the Secretary within fifteen (15) days from receipt
of the report.
In the event of a negative final determination, or if the cash bond is in excess
of the definitive safeguard duty assessed, the Secretary shall immediately
issue, through the Secretary of Finance, a written instruction to the
Commissioner of Customs, authorizing the return of the cash bond or the
remainder thereof, as the case may be, previously collected as provisional
general safeguard measure within ten (10) days from the date a final
decision has been made: Provided, That the government shall not be liable
for any interest on the amount to be returned. The Secretary shall not accept
for consideration another petition from the same industry, with respect to the
same imports of the product under consideration within one (1) year after the
date of rendering such a decision.
 When the definitive safeguard measure is in the form of a tariff increase,
such increase shall not be subject or limited to the maximum levels of tariff
as set forth in Section 401(a) of the Tariff and Customs Code of the
Philippines.
To better comprehend Section 13, note must be taken of the distinction between the
investigatory and recommendatory functions of the Tariff Commission under the SMA.
The word "determination," as used in the SMA, pertains to the factual findings on
whether there are increased imports into the country of the product under
consideration, and on whether such increased imports are a substantial cause of
serious injury or threaten to substantially cause serious injury to the domestic
industry.114 The SMA explicitly authorizes the DTI Secretary to make a preliminary
determination,115 and the Tariff Commission to make the final determination. 116 The
distinction is fundamental, as these functions are not interchangeable. The Tariff
Commission makes its determination only after a formal investigation process, with
such investigation initiated only if there is a positive preliminary determination by the
DTI Secretary under Section 7 of the SMA.117 On the other hand, the DTI Secretary
may impose definitive safeguard measure only if there is a positive final determination
made by the Tariff Commission.118
In contrast, a "recommendation" is a suggested remedial measure submitted by the
Tariff Commission under Section 13 after making a positive final determination in
accordance with Section 5. The Tariff Commission is not empowered to make a
recommendation absent a positive final determination on its part. 119 Under Section 13,
the Tariff Commission is required to recommend to the [DTI] Secretary an
"appropriate definitive measure."120 The Tariff Commission "may also recommend
other actions, including the initiation of international negotiations to address the
underlying cause of the increase of imports of the products, to alleviate the injury or
threat thereof to the domestic industry and to facilitate positive adjustment to import
competition."121
The recommendations of the Tariff Commission, as rendered under Section 13, are
not obligatory on the DTI Secretary. Nothing in the SMA mandates the DTI Secretary
to adopt the recommendations made by the Tariff Commission. In fact, the SMA
requires that the DTI Secretary establish that the application of such safeguard
measures is in the public interest, notwithstanding the Tariff Commission's
recommendation on the appropriate safeguard measure based on its positive final
determination.122 The non-binding force of the Tariff Commission's recommendations
is congruent with the command of Section 28(2), Article VI of the 1987 Constitution
that only the President may be empowered by the Congress to impose appropriate
tariff rates, import/export quotas and other similar measures.123 It is the DTI Secretary,
as alter ego of the President, who under the SMA may impose such safeguard
measures subject to the limitations imposed therein. A contrary conclusion would in
essence unduly arrogate to the Tariff Commission the executive power to impose the
appropriate tariff measures. That is why the SMA empowers the DTI Secretary to
adopt safeguard measures other than those recommended by the Tariff Commission.
Unlike the recommendations of the Tariff Commission, its determination has a
different effect on the DTI Secretary. Only on the basis of a positive final
determination made by the Tariff Commission under Section 5 can the DTI Secretary
impose a general safeguard measure. Clearly, then the DTI Secretary is bound by
the determinationmade by the Tariff Commission.
Some confusion may arise because the sixth paragraph of Section 13 124 uses the
variant word "determined" in a different context, as it contemplates "the appropriate
general safeguard measure as determined by the Secretary within fifteen (15) days
from receipt of the report." Quite plainly, the word "determined" in this context pertains
to the DTI Secretary's power of choice of the appropriate safeguard measure, as
opposed to the Tariff Commission's power to determine the existence of conditions
necessary for the imposition of any safeguard measure. In relation to Section 5, such
choice also relates to the mandate of the DTI Secretary to establish that the
application of safeguard measures is in the public interest, also within the fifteen (15)
day period. Nothing in Section 13 contradicts the instruction in Section 5 that the DTI
Secretary is allowed to impose the general safeguard measures only if there is a
positive determination made by the Tariff Commission.
Unfortunately, Rule 13.2 of the Implementing Rules of the SMA is captioned "Final
Determination by the Secretary." The assailed Decision and Philcemcor latch on this
phraseology to imply that the factual determination rendered by the Tariff Commission
under Section 5 may be amended or reversed by the DTI Secretary. Of course,
implementing rules should conform, not clash, with the law that they seek to
implement, for a regulation which operates to create a rule out of harmony with the
statute is a nullity.125 Yet imperfect draftsmanship aside, nothing in Rule 13.2 implies
that the DTI Secretary can set aside the determination made by the Tariff
Commission under the aegis of Section 5. This can be seen by examining the specific
provisions of Rule 13.2, thus:
RULE 13.2. Final Determination by the Secretary
RULE 13.2.a. Within fifteen (15) calendar days from receipt of the
Report of the Commission, the Secretary shall make a decision,
taking into consideration the measures recommended by the
Commission.
RULE 13.2.b. If the determination is affirmative, the Secretary shall
issue, within two (2) calendar days after making his decision, a
written instruction to the heads of the concerned government
agencies to immediately implement the appropriate general
safeguard measure as determined by him. Provided, however, that
in the case of non-agricultural products, the Secretary shall first
establish that the imposition of the safeguard measure will be in the
public interest.
RULE 13.2.c. Within two (2) calendar days after making his
decision, the Secretary shall also order its publication in two (2)
newspapers of general circulation. He shall also furnish a copy of
his Order to the petitioner and other interested parties, whether
affirmative or negative. (Emphasis supplied.)
Moreover, the DTI Secretary does not have the power to review the findings of the
Tariff Commission for it is not subordinate to the Department of Trade and Industry
("DTI"). It falls under the supervision, not of the DTI nor of the Department of Finance
(as mistakenly asserted by Southern Cross),126 but of the National Economic
Development Authority, an independent planning agency of the government of
co-equal rank as the DTI.127 As the supervision and control of a Department
Secretary is limited to the bureaus, offices, and agencies under him,128 the DTI
Secretary generally cannot exercise review authority over actions of the Tariff
Commission. Neither does the SMA specifically authorize the DTI Secretary to alter,
amend or modify in any way the determination made by the Tariff Commission. The
most that the DTI Secretary could do to express displeasure over the Tariff
Commission's actions is to ignore its recommendation, but not its determination.
The word "determination" as used in Rule 13.2 of the Implementing Rules is
dissonant with the same word as employed in the SMA, which in the latter case is
undeviatingly in reference to the determination made by the Tariff Commission.
Beyond the resulting confusion, however, the divergent use in Rule 13.2 is explicable
as the Rule textually pertains to the power of the DTI Secretary to review the
recommendations of the Tariff Commission, not the latter's determination. Indeed, an
examination of the specific provisions show that there is no real conflict to reconcile.
Rule 13.2 respects the logical order imposed by the SMA. The Rule does not remove
the essential requirement under Section 5 that a positive final determination be made
by the Tariff Commission before a definitive safeguard measure may be imposed by
the DTI Secretary.
The assailed Decision characterizes the findings of the Tariff Commission as merely
recommendatory and points to the DTI Secretary as the authority who renders the
final decision.129 At the same time, Philcemcor asserts that the Tariff Commission's
functions are merely investigatory, and as such do not include the power to decide or
adjudicate. These contentions, viewed in the context of the fundamental requisite set
forth by Section 5, are untenable. They run counter to the statutory prescription that a
positive final determination made by the Tariff Commission should first be obtained
before the definitive safeguard measures may be laid down.
Was it anomalous for Congress to have provided for a system whereby the Tariff
Commission may preclude the DTI, an office of higher rank, from imposing a
safeguard measure? Of course, this Court does not inquire into the wisdom of the
legislature but only charts the boundaries of powers and functions set in its
enactments. But then, it is not difficult to see the internal logic of this statutory
framework.
For one, as earlier stated, the DTI cannot exercise review powers over the Tariff
Commission which is not its subordinate office.
Moreover, the mechanism established by Congress establishes a measure of check
and balance involving two different governmental agencies with disparate
specializations. The matter of safeguard measures is of such national importance that
a decision either to impose or not to impose then could have ruinous effects on
companies doing business in the Philippines. Thus, it is ideal to put in place a system
which affords all due deliberation and calls to fore various governmental agencies
exercising their particular specializations.
Finally, if this arrangement drawn up by Congress makes it difficult to obtain a general
safeguard measure, it is because such safeguard measure is the exception, rather
than the rule. The Philippines is obliged to observe its obligations under the GATT,
under whose framework trade liberalization, not protectionism, is laid down. Verily, the
GATT actually prescribes conditions before a member-country may impose a
safeguard measure. The pertinent portion of the GATT Agreement on Safeguards
reads:
2. A Member may only apply a safeguard measure to a product only if that
member has determined, pursuant to the provisions set out below, that such
product is being imported into its territory in such increased quantities,
absolute or relative to domestic production, and under such conditions as to
cause or threaten to cause serious injury to the domestic industry that
produces like or directly competitive products.130
3. (a) A Member may apply a safeguard measure only following an
investigation by the competent authorities of that Member pursuant to
procedures previously established and made public in consonance with
Article X of the GATT 1994. This investigation shall include reasonable
public notice to all interested parties and public hearings or other appropriate
means in which importers, exporters and other interested parties could
present evidence and their views, including the opportunity to respond to the
presentations of other parties and to submit their views, inter alia, as to
whether or not the application of a safeguard measure would be in the public
interest. The competent authorities shall publish a report setting forth their
findings and reasoned conclusions reached on all pertinent issues of fact
and law.131
The SMA was designed not to contradict the GATT, but to complement it. The two
requisites laid down in Section 5 for a positive final determination are the same
conditions provided under the GATT Agreement on Safeguards for the application of
safeguard measures by a member country. Moreover, the investigatory procedure laid
down by the SMA conforms to the procedure required by the GATT Agreement on
Safeguards. Congress has chosen the Tariff Commission as the competent authority
to conduct such investigation. Southern Cross stresses that applying the provision of
the GATT Agreement on Safeguards, the Tariff Commission is clearly empowered to
arrive at binding conclusions.132 We agree: binding on the DTI Secretary is the Tariff
Commission's determinations on whether a product is imported in increased
quantities, absolute or relative to domestic production and whether any such increase
is a substantial cause of serious injury or threat thereof to the domestic industry. 133
Satisfied as we are with the proper statutory paradigm within which the SMA should
be analyzed, the flaws in the reasoning of the Court of Appeals and in the arguments
of the respondents become apparent. To better understand the dynamics of the
procedure set up by the law leading to the imposition of definitive safeguard
measures, a brief step-by-step recount thereof is in order.
1. After the initiation of an action involving a general safeguard measure, 134 the DTI
Secretary makes a preliminary determination whether the increased imports of the
product under consideration substantially cause or threaten to substantially cause
serious injury to the domestic industry,135 and whether the imposition of a provisional
measure is warranted under Section 8 of the SMA.136 If the preliminary determination
is negative, it is implied that no further action will be taken on the application.
2. When his preliminary determination is positive, the Secretary immediately transmits
the records covering the application to the Tariff Commission for immediate formal
investigation.137
3. The Tariff Commission conducts its formal investigation, keyed towards making a
final determination. In the process, it holds public hearings, providing interested
parties the opportunity to present evidence or otherwise be heard. 138 To repeat,
Section 5 enumerates what the Tariff Commission is tasked to determine: (a) whether
a product is being imported into the country in increased quantities, irrespective of
whether the product is absolute or relative to the domestic production; and (b)
whether the importation in increased quantities is such that it causes serious injury or
threat to the domestic industry.139 The findings of the Tariff Commission as to these
matters constitute the final determination, which may be either positive or negative.
4. Under Section 13 of the SMA, if the Tariff Commission makes a positive
determination, the Tariff Commission "recommends to the [DTI] Secretary an
appropriate definitive measure." The Tariff Commission "may also recommend other
actions, including the initiation of international negotiations to address the underlying
cause of the increase of imports of the products, to alleviate the injury or threat
thereof to the domestic industry, and to facilitate positive adjustment to import
competition."140
5. If the Tariff Commission makes a positive final determination, the DTI Secretary is
then to decide, within fifteen (15) days from receipt of the report, as to what
appropriate safeguard measures should he impose.
6. However, if the Tariff Commission makes a negative final determination, the DTI
Secretary cannot impose any definitive safeguard measure. Under Section 13, he is
instructed instead to return whatever cash bond was paid by the applicant upon the
initiation of the action for safeguard measure.
The Effect of the Court's Decision
The Court of Appeals erred in remanding the case back to the DTI Secretary, with the
instruction that the DTI Secretary may impose a general safeguard measure even if
there is no positive final determination from the Tariff Commission. More crucially, the
Court of Appeals could not have acquired jurisdiction over Philcemcor's petition for
certiorari in the first place, as Section 29 of the SMA properly vests jurisdiction on the
CTA. Consequently, the assailed Decision is an absolute nullity, and we declare it as
such.
What is the effect of the nullity of the assailed Decision on the 5 June
2003 Decision of the DTI Secretary imposing the general safeguard measure? We
have recognized that any initial judicial review of a DTI ruling in connection with the
imposition of a safeguard measure belongs to the CTA. At the same time, the Court
also recognizes the fundamental principle that a null and void judgment cannot
produce any legal effect. There is sufficient cause to establish that the 5 June
2003 Decision of the DTI Secretary resulted from the assailed Court of
Appeals Decision, even if the latter had not yet become final. Conversely, it can be
concluded that it was because of the putative imprimatur of the Court of
Appeals' Decision that the DTI Secretary issued his ruling imposing the safeguard
measure. Since the 5 June 2003 Decision derives its legal effect from the
void Decision of the Court of Appeals, this ruling of the DTI Secretary is consequently
void. The spring cannot rise higher than the source.
The DTI Secretary himself acknowledged that he drew stimulating force from the
appellate court's Decision for in his own 5 June 2003 Decision, he declared:
From the aforementioned ruling, the CA has remanded the case to the DTI
Secretary for a final decision. Thus, there is no legal impediment for the
Secretary to decide on the application.141
The inescapable conclusion is that the DTI Secretary needed the assailed Decision of
the Court of Appeals to justify his rendering a second Decision. He explicitly invoked
the Court of Appeals' Decision as basis for rendering his 5 June 2003 ruling, and
implicitly recognized that without such Decision he would not have the authority to
revoke his previous ruling and render a new, obverse ruling.
It is clear then that the 25 June 2003 Decision of the DTI Secretary is a product of the
void Decision, it being an attempt to carry out such null judgment. There is therefore
no choice but to declare it void as well, lest we sanction the perverse existence of a
fruit from a non-existent tree. It does not even matter what the disposition of the 25
June 2003 Decision was, its nullity would be warranted even if the DTI Secretary
chose to uphold his earlier ruling denying the application for safeguard measures.
It is also an unfortunate spectacle to behold the DTI Secretary, seeking to enforce a
judicial decision which is not yet final and actually pending review on appeal. Had it
been a judge who attempted to enforce a decision that is not yet final and executory,
he or she would have readily been subjected to sanction by this Court. The DTI
Secretary may be beyond the ambit of administrative review by this Court, but we are
capacitated to allocate the boundaries set by the law of the land and to exact fealty to
the legal order, especially from the instrumentalities and officials of government.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of
Appeals is DECLARED NULL AND VOID and SET ASIDE. The Decision of the DTI
Secretary dated 25 June 2003 is also DECLARED NULL AND VOID and SET ASIDE.
No Costs.
SO ORDERED.
G.R. No. 177597 July 16, 2008
BAI SANDRA S. A. SEMA, Petitioner,
vs.
COMMISSION ON ELECTIONS and DIDAGEN P. DILANGALEN, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178628
PERFECTO F. MARQUEZ, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
CARPIO, J.:
The Case
These consolidated petitions1 seek to annul Resolution No. 7902, dated 10 May 2007,
of the Commission on Elections (COMELEC) treating Cotabato City as part of the
legislative district of the Province of Shariff Kabunsuan.2
The Facts
The Ordinance appended to the 1987 Constitution apportioned two legislative districts
for the Province of Maguindanao. The first legislative district consists of Cotabato City
and eight municipalities.3 Maguindanao forms part of the Autonomous Region in
Muslim Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734 (RA
6734), as amended by Republic Act No. 9054 (RA 9054). 4 Although under the
Ordinance, Cotabato City forms part of Maguindanao’s first legislative district, it is not
part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in
the plebiscite held in November 1989.
On 28 August 2006, the ARMM’s legislature, the ARMM Regional Assembly,
exercising its power to create provinces under Section 19, Article VI of RA
9054,5 enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the
Province of Shariff Kabunsuan composed of the eight municipalities in the first district
of Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan,
Matanog, Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated
from the Province of Maguindanao and constituted into a distinct and independent
province, which is hereby created, to be known as the Province of Shariff Kabunsuan.
xxxx
Sec. 5. The corporate existence of this province shall commence upon the
appointment by the Regional Governor or election of the governor and majority of the
regular members of the Sangguniang Panlalawigan.
The incumbent elective provincial officials of the Province of Maguindanao shall
continue to serve their unexpired terms in the province that they will choose or where
they are residents: Provided, that where an elective position in both provinces
becomes vacant as a consequence of the creation of the Province of Shariff
Kabunsuan, all incumbent elective provincial officials shall have preference for
appointment to a higher elective vacant position and for the time being be appointed
by the Regional Governor, and shall hold office until their successors shall have been
elected and qualified in the next local elections; Provided, further, that they shall
continue to receive the salaries they are receiving at the time of the approval of this
Act until the new readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the members of the
Sangguniang Panlalawigan of the mother province.
Except as may be provided by national law, the existing legislative district, which
includes Cotabato as a part thereof, shall remain.
Later, three new municipalities6 were carved out of the original nine municipalities
constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus,
what was left of Maguindanao were the municipalities constituting its second
legislative district. Cotabato City, although part of Maguindanao’s first legislative
district, is not part of the Province of Maguindanao.
The voters of Maguindanao ratified Shariff Kabunsuan’s creation in a plebiscite held
on 29 October 2006.
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed
Resolution No. 3999 requesting the COMELEC to "clarify the status of Cotabato City
in view of the conversion of the First District of Maguindanao into a regular province"
under MMA Act 201.
In answer to Cotabato City’s query, the COMELEC issued Resolution No. 07-0407 on
6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff
Kabunsuan in the First Legislative District of Maguindanao." Resolution No. 07-0407,
which adopted the recommendation of the COMELEC’s Law Department under a
Memorandum dated 27 February 2007,7 provides in pertinent parts:
Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to
adopt the recommendation of the Law Department that pending the enactment of
the appropriate law by Congress, to maintain the status quo with Cotabato City as
part of Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis
supplied)
However, in preparation for the 14 May 2007 elections, the COMELEC promulgated
on 29 March 2007 Resolution No. 7845 stating that Maguindanao’s first legislative
district is composed only of Cotabato City because of the enactment of MMA Act
201.8
On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these
petitions, amending Resolution No. 07-0407 by renaming the legislative district in
question as "Shariff Kabunsuan Province with Cotabato City (formerly First District of
Maguindanao with Cotabato City)."91avvphi1
In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for
Representative of "Shariff Kabunsuan with Cotabato City," prayed for the nullification
of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes
cast in Cotabato City for that office. Sema contended that Shariff Kabunsuan is
entitled to one representative in Congress under Section 5 (3), Article VI of the
Constitution10 and Section 3 of the Ordinance appended to the Constitution. 11 Thus,
Sema asserted that the COMELEC acted without or in excess of its jurisdiction in
issuing Resolution No. 7902 which maintained the status quo in Maguindanao’s first
legislative district despite the COMELEC’s earlier directive in Resolution No. 7845
designating Cotabato City as the lone component of Maguindanao’s reapportioned
first legislative district.12 Sema further claimed that in issuing Resolution No. 7902, the
COMELEC usurped Congress’ power to create or reapportion legislative districts.
In its Comment, the COMELEC, through the Office of the Solicitor General (OSG),
chose not to reach the merits of the case and merely contended that (1) Sema
wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902
because the COMELEC issued the same in the exercise of its administrative, not
quasi-judicial, power and (2) Sema’s prayer for the writ of prohibition in G.R. No.
177597 became moot with the proclamation of respondent Didagen P. Dilangalen
(respondent Dilangalen) on 1 June 2007 as representative of the legislative district of
Shariff Kabunsuan Province with Cotabato City.
In his Comment, respondent Dilangalen countered that Sema is estopped from
questioning COMELEC Resolution No. 7902 because in her certificate of candidacy
filed on 29 March 2007, Sema indicated that she was seeking election as
representative of "Shariff Kabunsuan including Cotabato City." Respondent
Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did
not apportion a legislative district for Shariff Kabunsuan or reapportion the legislative
districts in Maguindanao but merely renamed Maguindanao’s first legislative district.
Respondent Dilangalen further claimed that the COMELEC could not reapportion
Maguindanao’s first legislative district to make Cotabato City its sole component unit
as the power to reapportion legislative districts lies exclusively with Congress, not to
mention that Cotabato City does not meet the minimum population requirement under
Section 5 (3), Article VI of the Constitution for the creation of a legislative district
within a city.13
Sema filed a Consolidated Reply controverting the matters raised in respondents’
Comments and reiterating her claim that the COMELEC acted ultra vires in issuing
Resolution No. 7902.
In the Resolution of 4 September 2007, the Court required the parties in G.R. No.
177597 to comment on the issue of whether a province created by the ARMM
Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law
creating a legislative district for such new province. The parties submitted their
compliance as follows:
(1) Sema answered the issue in the affirmative on the following grounds: (a)
the Court in Felwa v. Salas14stated that "when a province is created by
statute, the corresponding representative district comes into existence
neither by authority of that statute — which cannot provide otherwise — nor
by apportionment, but by operation of the Constitution, without a
reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160)
"affirms" the apportionment of a legislative district incident to the creation of
a province; and (c) Section 5 (3), Article VI of the Constitution and Section 3
of the Ordinance appended to the Constitution mandate the apportionment
of a legislative district in newly created provinces.
(2) The COMELEC, again represented by the OSG, apparently abandoned
its earlier stance on the propriety of issuing Resolution Nos. 07-0407 and
7902 and joined causes with Sema, contending that Section 5 (3), Article VI
of the Constitution is "self-executing." Thus, every new province created by
the ARMM Regional Assembly is ipso facto entitled to one representative in
the House of Representatives even in the absence of a national law; and
(3) Respondent Dilangalen answered the issue in the negative on the
following grounds: (a) the "province" contemplated in Section 5 (3), Article VI
of the Constitution is one that is created by an act of Congress taking into
account the provisions in RA 7160 on the creation of provinces; (b) Section
3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the
power to enact measures relating to national elections, which encompasses
the apportionment of legislative districts for members of the House of
Representatives; (c) recognizing a legislative district in every province the
ARMM Regional Assembly creates will lead to the disproportionate
representation of the ARMM in the House of Representatives as the
Regional Assembly can create provinces without regard to the requirements
in Section 461 of RA 7160; and (d) Cotabato City, which has a population of
less than 250,000, is not entitled to a representative in the House of
Representatives.
On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral
arguments on the following issues: (1) whether Section 19, Article VI of RA 9054,
delegating to the ARMM Regional Assembly the power to create provinces, is
constitutional; and (2) if in the affirmative, whether a province created under Section
19, Article VI of RA 9054 is entitled to one representative in the House of
Representatives without need of a national law creating a legislative district for such
new province.15
In compliance with the Resolution dated 27 November 2007, the parties in G.R. No.
177597 filed their respective Memoranda on the issues raised in the oral
arguments.16 On the question of the constitutionality of Section 19, Article VI of RA
9054, the parties in G.R. No. 177597 adopted the following positions:
 (1) Sema contended that Section 19, Article VI of RA 9054 is constitutional
(a) as a valid delegation by Congress to the ARMM of the power to create
provinces under Section 20 (9), Article X of the Constitution granting to the
autonomous regions, through their organic acts, legislative powers over
"other matters as may be authorized by law for the promotion of the general
welfare of the people of the region" and (b) as an amendment to Section 6 of
RA 7160.17 However, Sema concedes that, if taken literally, the grant in
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the
power to "prescribe standards lower than those mandated" in RA 7160 in the
creation of provinces contravenes Section 10, Article X of the
Constitution.18 Thus, Sema proposed that Section 19 "should be construed
as prohibiting the Regional Assembly from prescribing standards x x x that
do not comply with the minimum criteria" under RA 7160.19
(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054
is unconstitutional on the following grounds: (a) the power to create
provinces was not among those granted to the autonomous regions under
Section 20, Article X of the Constitution and (b) the grant under Section 19,
Article VI of RA 9054 to the ARMM Regional Assembly of the power to
prescribe standards lower than those mandated in Section 461 of RA 7160
on the creation of provinces contravenes Section 10, Article X of the
Constitution and the Equal Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with respondent
Dilangalen (thus effectively abandoning the position the COMELEC adopted
in its Compliance with the Resolution of 4 September 2007) and contended
that Section 19, Article VI of RA 9054 is unconstitutional because (a) it
contravenes Section 10 and Section 6,20 Article X of the Constitution and (b)
the power to create provinces was withheld from the autonomous regions
under Section 20, Article X of the Constitution.
On the question of whether a province created under Section 19, Article VI of RA
9054 is entitled to one representative in the House of Representatives without need of
a national law creating a legislative district for such new province, Sema and
respondent Dilangalen reiterated in their Memoranda the positions they adopted in
their Compliance with the Resolution of 4 September 2007. The COMELEC deemed it
unnecessary to submit its position on this issue considering its stance that Section 19,
Article VI of RA 9054 is unconstitutional.
The pendency of the petition in G.R. No. 178628 was disclosed during the oral
arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the
Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in
G.R. No. 178628 echoed Sema's contention that the COMELEC acted ultra vires in
issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative
in the House of Representatives. In its Comment to the petition in G.R. No. 178628,
the COMELEC, through the OSG, maintained the validity of COMELEC Resolution
No. 7902 as a temporary measure pending the enactment by Congress of the
"appropriate law."
The Issues
The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and Mandamus are
proper to test the constitutionality of COMELEC Resolution No.
7902; and
(2) whether the proclamation of respondent Dilangalen as
representative of Shariff Kabunsuan Province with Cotabato City
mooted the petition in G.R. No. 177597.
(B) On the merits –
(1) whether Section 19, Article VI of RA 9054, delegating to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the ARMM
Regional Assembly under MMA Act 201 pursuant to Section 19,
Article VI of RA 9054 is entitled to one representative in the House
of Representatives without need of a national law creating a
legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution
No. 7902 is valid for maintaining the status quo in the first legislative district
of Maguindanao (as "Shariff Kabunsuan Province with Cotabato City
[formerly First District of Maguindanao with Cotabato City]"), despite the
creation of the Province of Shariff Kabunsuan out of such district (excluding
Cotabato City).
The Ruling of the Court
The petitions have no merit. We rule that (1) Section 19, Article VI of RA
9054 is unconstitutional insofar as it grants to the ARMM Regional Assembly
the power to create provinces and cities; (2) MMA Act 201 creating the
Province of Shariff Kabunsuan is void; and (3) COMELEC Resolution No.
7902 is valid.
On the Preliminary Matters
The Writ of Prohibition is Appropriate
to Test the Constitutionality of
Election Laws, Rules and Regulations
The purpose of the writ of Certiorari is to correct grave abuse of discretion by "any
tribunal, board, or officer exercising judicial or quasi-judicial functions."21 On the other
hand, the writ of Mandamus will issue to compel a tribunal, corporation, board, officer,
or person to perform an act "which the law specifically enjoins as a duty." 22 True, the
COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or quasi-
judicial functions.23 Nor is there a law which specifically enjoins the COMELEC to
exclude from canvassing the votes cast in Cotabato City for representative of "Shariff
Kabunsuan Province with Cotabato City." These, however, do not justify the outright
dismissal of the petition in G.R. No. 177597 because Sema also prayed for the
issuance of the writ of Prohibition and we have long recognized this writ as proper for
testing the constitutionality of election laws, rules, and regulations.24
Respondent Dilangalen’s Proclamation
Does Not Moot the Petition
There is also no merit in the claim that respondent Dilangalen’s proclamation as
winner in the 14 May 2007 elections for representative of "Shariff Kabunsuan
Province with Cotabato City" mooted this petition. This case does not concern
respondent Dilangalen’s election. Rather, it involves an inquiry into the validity of
COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and
Section 19, Article VI of RA 9054. Admittedly, the outcome of this petition, one way or
another, determines whether the votes cast in Cotabato City for representative of the
district of "Shariff Kabunsuan Province with Cotabato City" will be included in the
canvassing of ballots. However, this incidental consequence is no reason for us not to
proceed with the resolution of the novel issues raised here. The Court’s ruling in these
petitions affects not only the recently concluded elections but also all the other
succeeding elections for the office in question, as well as the power of the ARMM
Regional Assembly to create in the future additional provinces.
On the Main Issues
Whether the ARMM Regional Assembly
Can Create the Province of Shariff Kabunsuan
The creation of local government units is governed by Section 10, Article X of the
Constitution, which provides:
Sec. 10. 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 units directly affected.
Thus, the creation of any of the four local government units – province, city,
municipality or barangay – must comply with three conditions. First, the creation of a
local government unit must follow the criteria fixed in the Local Government Code.
Second, such creation must not conflict with any provision of the Constitution. Third,
there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an express grant of authority in the
Constitution for Congress to delegate to regional or local legislative bodies the power
to create local government units. However, under its plenary legislative powers,
Congress can delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided no conflict arises
with any provision of the Constitution. In fact, Congress has delegated to provincial
boards, and city and municipal councils, the power to create barangays within their
jurisdiction,25 subject to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government Code, "only x x x an Act of
Congress" can create provinces, cities or municipalities.261avvphi1
Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays within
the ARMM. Congress made the delegation under its plenary legislative powers
because the power to create local government units is not one of the express
legislative powers granted by the Constitution to regional legislative bodies. 27 In the
present case, the question arises whether the delegation to the ARMM Regional
Assembly of the power to create provinces, cities, municipalities and barangays
conflicts with any provision of the Constitution.
There is no provision in the Constitution that conflicts with the delegation to regional
legislative bodies of the power to create municipalities and barangays, provided
Section 10, Article X of the Constitution is followed. However, the creation of
provinces and cities is another matter. Section 5 (3), Article VI of the Constitution
provides, "Each city with a population of at least two hundred fifty thousand, or each
province, shall have at least one representative" in the House of Representatives.
Similarly, Section 3 of the Ordinance appended to the Constitution provides, "Any
province that may hereafter 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 x x x."
Clearly, a province cannot be created without a legislative district because it will
violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same reason, a city with a
population of 250,000 or more cannot also be created without a legislative district.
Thus, the power to create a province, or a city with a population of 250,000 or more,
requires also the power to create a legislative district. Even the creation of a city with
a population of less than 250,000 involves the power to create a legislative district
because once the city’s population reaches 250,000, the city automatically becomes
entitled to one representative under Section 5 (3), Article VI of the Constitution and
Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a
province or city inherently involves the power to create a legislative district.
For Congress to delegate validly the power to create a province or city, it must also
validly delegate at the same time the power to create a legislative district. The
threshold issue then is, can Congress validly delegate to the ARMM Regional
Assembly the power to create legislative districts for the House of Representatives?
The answer is in the negative.
Legislative Districts are Created or Reapportioned
Only by an Act of Congress
Under the present Constitution, as well as in past 28 Constitutions, the power to
increase the allowable membership in the House of Representatives, and to
reapportion legislative districts, is vested exclusively in Congress. 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 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.
xxxx
(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. (Emphasis supplied)
Section 5 (1), Article VI of the Constitution vests in Congress the power to increase,
through a law, the allowable membership in the House of Representatives. Section 5
(4) empowers Congress to reapportion legislative districts. The power to reapportion
legislative districts necessarily includes the power to create legislative districts out of
existing ones. Congress exercises these powers through a law that Congress itself
enacts, and not through a law that regional or local legislative bodies enact. The
allowable membership of the House of Representatives can be increased, and new
legislative districts of Congress can be created, only through a national law passed by
Congress. In Montejo v. COMELEC,29 we held that the "power of redistricting x x x is
traditionally regarded as part of the power (of Congress) to make laws," and thus is
vested exclusively in Congress.
This textual commitment to Congress of the exclusive power to create or reapportion
legislative districts is logical. Congress is a national legislature and any increase in its
allowable membership or in its incumbent membership through the creation of
legislative districts must be embodied in a national law. Only Congress can enact
such a law. It would be anomalous for regional or local legislative bodies to create or
reapportion legislative districts for a national legislature like Congress. An inferior
legislative body, created by a superior legislative body, cannot change the
membership of the superior legislative body.
The creation of the ARMM, and the grant of legislative powers to its Regional
Assembly under its organic act, did not divest Congress of its exclusive authority to
create legislative districts. This is clear from the Constitution and the ARMM Organic
Act, as amended. Thus, Section 20, Article X of the Constitution provides:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide
for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region.
Nothing in Section 20, Article X of the Constitution authorizes autonomous
regions, expressly or impliedly, to create or reapportion legislative districts for
Congress.
On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic
Act, provides, "The Regional Assembly may exercise legislative power x x
x except on the following matters: x x x (k) National elections. x x x." Since the
ARMM Regional Assembly has no legislative power to enact laws relating to national
elections, it cannot create a legislative district whose representative is elected in
national elections. Whenever Congress enacts a law creating a legislative district, the
first representative is always elected in the "next national elections" from the
effectivity of the law.30
Indeed, the office of a legislative district representative to Congress is a national
office, and its occupant, a Member of the House of Representatives, is a national
official.31 It would be incongruous for a regional legislative body like the ARMM
Regional Assembly to create a national office when its legislative powers extend only
to its regional territory. The office of a district representative is maintained by national
funds and the salary of its occupant is paid out of national funds. It is a self-evident
inherent limitation on the legislative powers of every local or regional legislative body
that it can only create local or regional offices, respectively, and it can never create a
national office.
To allow the ARMM Regional Assembly to create a national office is to allow its
legislative powers to operate outside the ARMM’s territorial jurisdiction. This violates
Section 20, Article X of the Constitution which expressly limits the coverage of the
Regional Assembly’s legislative powers "[w]ithin its territorial jurisdiction x x x."
The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the
exclusive nature of Congress’ power to create or reapportion legislative districts by
abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA
Act 201 provides that:
Except as may be provided by national law, the existing legislative district, which
includes Cotabato City as a part thereof, shall remain. (Emphasis supplied)
However, a province cannot legally be created without a legislative district because
the Constitution mandates that "each province shall have at least one representative."
Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is
unconstitutional.
Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the
Constitution, which 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)
and Section 3 of the Ordinance appended to the Constitution, which states:
Any province that may hereafter 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. The number of Members apportioned to the province out of
which such new province was created or where the city, whose population has so
increased, is geographically located shall be correspondingly adjusted by the
Commission on Elections but such adjustment shall not be made within one hundred
and twenty days before the election. (Emphasis supplied)
serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on
29 October 2006, is automatically entitled to one member in the House of
Representatives in the 14 May 2007 elections. As further support for her stance,
petitioner invokes the statement in Felwa that "when a province is created by statute,
the corresponding representative district comes into existence neither by authority of
that statute — which cannot provide otherwise — nor by apportionment, but by
operation of the Constitution, without a reapportionment."
The contention has no merit.
First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA
4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-
Apayao and providing for congressional representation in the old and new provinces,
was unconstitutional for "creati[ng] congressional districts without the apportionment
provided in the Constitution." The Court answered in the negative, thus:
The Constitution ordains:
"The House of Representatives shall be composed of not more than one hundred and
twenty Members who shall be apportioned among the several provinces as nearly as
may be according to the number of their respective inhabitants, but each province
shall have at least one Member. The Congress shall by law make an apportionment
within three years after the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National Assembly, who shall
be elected by the qualified electors from the present Assembly districts. Each
representative district shall comprise as far as practicable, contiguous and compact
territory."
Pursuant to this Section, a representative district may come into existence: (a)
indirectly, through the creation of a province — for "each province shall have at
least one member" in the House of Representatives; or (b) by direct creation of
several representative districts within a province. The requirements concerning
the apportionment of representative districts and the territory thereof refer only to the
second method of creation of representative districts, and do not apply to those
incidental to the creation of provinces, under the first method. This is deducible, not
only from the general tenor of the provision above quoted, but, also, from the fact that
the apportionment therein alluded to refers to that which is made by an Act of
Congress. Indeed, when a province is created by statute, the corresponding
representative district, comes into existence neither by authority of that statute —
which cannot provide otherwise — nor by apportionment, but by operation of the
Constitution, without a reapportionment.
There is no constitutional limitation as to the time when, territory of, or other
conditions under which a province may be created, except, perhaps, if the
consequence thereof were to exceed the maximum of 120 representative districts
prescribed in the Constitution, which is not the effect of the legislation under
consideration. As a matter of fact, provinces have been created or subdivided into
other provinces, with the consequent creation of additional representative districts,
without complying with the aforementioned requirements. 32 (Emphasis supplied)
Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly
created legislative districts "indirectly" through a special law enacted by
Congress creating a province and (2) the creation of the legislative districts will not
result in breaching the maximum number of legislative districts provided under the
1935 Constitution. Felwa does not apply to the present case because in Felwa the
new provinces were created by a national law enacted by Congress itself. Here,
the new province was created merely by a regional law enacted by the ARMM
Regional Assembly.
What Felwa teaches is that the creation of a legislative district by Congress does not Justice Carpio:
emanate alone from Congress’ power to reapportion legislative districts, but also from
Congress’ power to create provinces which cannot be created without a legislative So, you mean to say [a] Local Government can create legislative district[s] and pack
district. Thus, when a province is created, a legislative district is created by operation Congress with their own representatives [?]
of the Constitution because the Constitution provides that "each province shall have
at least one representative" in the House of Representatives. This does not detract
from the constitutional principle that the power to create legislative districts belongs Atty. Vistan II:35
exclusively to Congress. It merely prevents any other legislative body, except
Congress, from creating provinces because for a legislative body to create a province Yes, Your Honor, because the Constitution allows that.
such legislative body must have the power to create legislative districts. In short, only
an act of Congress can trigger the creation of a legislative district by operation of the Justice Carpio:
Constitution. Thus, only Congress has the power to create, or trigger the creation of, a
legislative district.
So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x
x and, therefore, they can have thirty-five (35) new representatives in the House of
Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff Representatives without Congress agreeing to it, is that what you are saying? That
Kabunsuan upon its creation, this will leave Cotabato City as the lone component of can be done, under your theory[?]
the first legislative district of Maguindanao. However, Cotabato City cannot constitute
a legislative district by itself because as of the census taken in 2000, it had a
population of only 163,849. To constitute Cotabato City alone as the surviving first Atty. Vistan II:
legislative district of Maguindanao will violate Section 5 (3), Article VI of the
Constitution which requires that "[E]ach city with a population of at least two hundred Yes, Your Honor, under the correct factual circumstances.
fifty thousand x x x, shall have at least one representative."
Justice Carpio:
Second. Sema’s theory also undermines the composition and independence of the
House of Representatives. Under Section 19,33 Article VI of RA 9054, the ARMM
Under your theory, the ARMM legislature can create thirty-five (35) new provinces,
Regional Assembly can create provinces and cities within the ARMM with or without
there may be x x x [only] one hundred thousand (100,000) [population], x x x, and
regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual
they will each have one representative x x x to Congress without any national law, is
income of ₱20,000,000, and minimum contiguous territory of 2,000 square kilometers
that what you are saying?
or minimum population of 250,000.34The following scenarios thus become distinct
possibilities:
Atty. Vistan II:
(1) An inferior legislative body like the ARMM Regional Assembly can create
100 or more provinces and thus increase the membership of a superior Without law passed by Congress, yes, Your Honor, that is what we are saying.
legislative body, the House of Representatives, beyond the maximum limit of
250 fixed in the Constitution (unless a national law provides otherwise); xxxx

(2) The proportional representation in the House of Representatives based Justice Carpio:
on one representative for at least every 250,000 residents will be negated
because the ARMM Regional Assembly need not comply with the
So, they can also create one thousand (1000) new provinces, sen[d] one thousand
requirement in Section 461(a)(ii) of RA 7160 that every province created
(1000) representatives to the House of Representatives without a national law[,] that
must have a population of at least 250,000; and
is legally possible, correct?

(3) Representatives from the ARMM provinces can become the majority in
Atty. Vistan II:
the House of Representatives through the ARMM Regional Assembly’s
continuous creation of provinces or cities within the ARMM.
Yes, Your Honor.36 (Emphasis supplied)
The following exchange during the oral arguments of the petition in G.R. No. 177597
highlights the absurdity of Sema’s position that the ARMM Regional Assembly can Neither the framers of the 1987 Constitution in adopting the provisions in Article X on
create provinces: regional autonomy,37 nor Congress in enacting RA 9054, envisioned or intended
these disastrous consequences that certainly would wreck the tri-branch system of
government under our Constitution. Clearly, the power to create or reapportion only within its territorial jurisdiction as provided in Section 20, Article X of the
legislative districts cannot be delegated by Congress but must be exercised by Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional
Congress itself. Even the ARMM Regional Assembly recognizes this. Assembly and creating the Province of Shariff Kabunsuan, is void.

The Constitution empowered Congress to create or reapportion legislative districts,
not the regional assemblies. Section 3 of the Ordinance to the Constitution which
states, "[A]ny province that may hereafter be created x x x shall be entitled in the
immediately following election to at least one Member," refers to a province created
by Congress itself through a national law. The reason is that the creation of a
province increases the actual membership of the House of Representatives, an
increase that only Congress can decide. Incidentally, in the present 14th Congress,
there are 21938 district representatives out of the maximum 250 seats in the House of
Representatives. Since party-list members shall constitute 20 percent of total
membership of the House, there should at least be 50 party-list seats available in
every election in case 50 party-list candidates are proclaimed winners. This leaves
only 200 seats for district representatives, much less than the 219 incumbent district
representatives. Thus, there is a need now for Congress to increase by law the
allowable membership of the House, even before Congress can create new
provinces.
Resolution No. 7902 Complies with the Constitution
Consequently, we hold that COMELEC Resolution No. 7902, preserving the
geographic and legislative district of the First District of Maguindanao with Cotabato
City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article
X of the Constitution, as well as Section 1 of the Ordinance appended to the
Constitution.
WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054
UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the
Autonomous Region in Muslim Mindanao the power to create provinces and cities.
Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the
Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No.
7902 is VALID.

It is axiomatic that organic acts of autonomous regions cannot prevail over the Let a copy of this ruling be served on the President of the Senate and the Speaker of
Constitution. Section 20, Article X of the Constitution expressly provides that the the House of Representatives.
legislative powers of regional assemblies are limited "[w]ithin its territorial
jurisdiction and subject to the provisions of the Constitution and national SO ORDERED.
laws, x x x." The Preamble of the ARMM Organic Act (RA 9054) itself states that the
ARMM Government is established "within the framework of the Constitution." This
follows Section 15, Article X of the Constitution which mandates that the ARMM
"shall be created x x x within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines."

The present case involves the creation of a local government unit that necessarily
involves also the creation of a legislative district. The Court will not pass upon the
constitutionality of the creation of municipalities and barangays that does not comply
with the criteria established in Section 461 of RA 7160, as mandated in Section 10,
Article X of the Constitution, because the creation of such municipalities and
barangays does not involve the creation of legislative districts. We leave the
resolution of this issue to an appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the
ARMM Regional Assembly the power to create provinces and cities, is void for being
contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as
well as Section 3 of the Ordinance appended to the Constitution. Only Congress can
create provinces and cities because the creation of provinces and cities necessarily
includes the creation of legislative districts, a power only Congress can exercise
under Section 5, Article VI of the Constitution and Section 3 of the Ordinance
appended to the Constitution. The ARMM Regional Assembly cannot create a
province without a legislative district because the Constitution mandates that every
province shall have a legislative district. Moreover, the ARMM Regional Assembly
cannot enact a law creating a national office like the office of a district representative
of Congress because the legislative powers of the ARMM Regional Assembly operate
G.R. No. 156208 September 26, 2006
NPC DRIVERS AND MECHANICS ASSOCIATION, (NPC DAMA), represented by
Its President ROGER S. SAN JUAN, SR., NPC EMPLOYEES & WORKERS UNION
(NEWU) – NORTHERN LUZON REGIONAL CENTER, represented by its Regional
President JIMMY D. SALMAN, in their own individual capacities and in behalf of
the members of the associations and all affected officers and employees of
National Power Corporation (NPC), ZOL D. MEDINA, NARCISO M. MAGANTE,
VICENTE B. CIRIO, JR., NECITAS B. CAMAMA, in their individual capacities as
employees of National Power Corporation, petitioners,
vs.
THE NATIONAL POWER CORPORATION (NPC), NATIONAL POWER BOARD OF
DIRECTORS (NPB), JOSE ISIDRO N. CAMACHO as Chairman of the National
Power Board of Directors (NPB), ROLANDO S. QUILALA, as President – Officer-
in-charge/CEO of National Power Corporation and Member of National Power
Board, and VINCENT S. PEREZ, JR., EMILIA T. BONCODIN, MARIUS P.
CORPUS, RUBEN S. REINOSO, JR., GREGORY L. DOMINGO and NIEVES L.
OSORIO, respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a special civil action for Injunction to enjoin public respondents from
implementing the National Power Board (NPB) Resolutions No. 2002-124 and No.
2002-125, both dated 18 November 2002, directing, among other things, the
termination of all employees of the National Power Corporation (NPC) on 31 January
2003 in line with the restructuring of the NPC.
On 8 June 2001, Republic Act No. 9136, otherwise known as the "Electric Power
Industry Reform Act of 2001" (EPIRA Law), was approved and signed into law by
President Gloria Macapagal-Arroyo, and took effect on 26 June 2001. Section 2(i) and
Section 3 of the EPIRA Law states:
Section 2. Declaration of Policy. – It is hereby declared the policy of the
State:
xxxx
(i) To provide for an orderly and transparent privatization of the assets and
liabilities of the National Power Corporation (NPC);
xxxx
Section 3. Scope. – This Act shall provide a framework for the restructuring
of the electric power industry, including the privatization of the assets of
NPC, the transition to the desired competitive structure, and the definition of
the responsibilities of the various government agencies and private entities. 1
Under the EPIRA Law,2 a new National Power Board of Directors was constituted
composed of the Secretary of Finance as Chairman, with the Secretary of Energy, the
Secretary of Budget and Management, the Secretary of Agriculture, the Director-
General of the National Economic and Development Authority, the Secretary of
Environment and Natural Resources, the Secretary of Interior and Local Government,
the Secretary of the Department of Trade and Industry, and the President of the
National Power Corporation as members.
On 27 February 2002, the Secretary of the Department of Energy (DOE) promulgated
the Implementing Rules and Regulations (IRR) of the EPIRA Law, pursuant to Section
773 thereof. Said IRR were approved by the Joint Congressional Power Commission
on even date. Meanwhile, also in pursuant to the provisions of the EPIRA Law, the
DOE created the Energy Restructuring Steering Committee (Restructuring
Committee) to manage the privatization and restructuring of the NPC, the National
Transmission Corporation (TRANSCO), and the Power Sector Assets and Liabilities
Corporation (PSALM).
To serve as the overall organizational framework for the realigned functions of the
NPC mandated under the EPIRA Law, the Restructuring Committee proposed a new
NPC Table of Organization which was approved by the NPB through NPB Resolution
No. 2002-53 dated 11 April 2002. Likewise, the Restructuring Committee reviewed
the proposed 2002 NPC Restructuring Plan and assisted in the implementation of
Phase I (Realignment) of said Plan, and thereafter recommended to the NPB for
approval the adoption of measures pertaining to the separation and hiring of NPC
personnel. The NPB, taking into consideration the recommendation of the
Restructuring Committee, thus amended the Restructuring Plan approved under NPB
Resolution No. 2002-53.
On 18 November 2002, pursuant to Section 634 of the EPIRA Law and Rule 335 of
the IRR, the NPB passed NPB Resolution No. 2002-124 which provided for the
Guidelines on the Separation Program of the NPC and the Selection and Placement
of Personnel in the NPC Table of Organization. Under said Resolution, all NPC
personnel shall be legally terminated on 31 January 2003, and shall be entitled to
separation benefits. On the same day, the NPB approved NPB Resolution No. 2002-
125, whereby a Transition Team was constituted to manage and implement the
NPC's Separation Program.
In a Memorandum dated 21 November 2002, the NPC OIC-President and CEO
Rolando S. Quilala circulated the assailed Resolutions and directed the concerned
NPC officials to disseminate and comply with said Resolutions and implement the
same within the period provided for in the timetable set in NPB Resolution No. 2002-
125. As a result thereof, Mr. Paquito F. Garcia, Manager – HRSD and Resources and
Administration Coordinator of NPC, circulated a Memorandum dated 22 November
2002 to all NPC officials and employees providing for a checklist of the documents
required for securing clearances for the processing of separation benefits of all
employees who shall be terminated under the Restructuring Plan.
Contending that the assailed NPB Resolutions are void and without force and effect,
herein petitioners, in their individual and representative capacities, filed the present
Petition for Injunction to restrain respondents from implementing NPB Resolutions No.
2002-124 and No. 2002-125. In support thereof, petitioners invoke Section 78 of the
EPIRA Law, to wit:
Section 78. Injunction and Restraining Order. – The implementation of the
provisions of this Act shall not be restrained or enjoined except by an order
issued by the Supreme Court of the Philippines.
In assailing the validity of NPB Resolutions No. 2002-124 and No. 2002-125,
petitioners maintain that said Resolutions were not passed and issued by a majority of
the members of the duly constituted Board of Directors since only three of its
members, as provided under Section 486 of the EPIRA Law, were present, namely:
DOE Secretary Vincent S. Perez, Jr.; Department of Budget and Management
Secretary Emilia T. Boncodin; and NPC OIC-President Rolando S. Quilala. According
to petitioners, the other four members who were present at the meeting and signed
the Resolutions were not the secretaries of their respective departments but were
merely representatives or designated alternates of the officials who were named
under the EPIRA Law to sit as members of the NPB. Petitioners claim that the acts of
these representatives are violative of the well-settled principle that "delegated power
cannot be further delegated." Thus, petitioners conclude that the questioned
Resolutions have been illegally issued as it were not issued by a duly constituted
board since no quorum existed because only three of the nine members, as provided
under Section 48 of the EPIRA Law, were present and qualified to sit and vote.
It is petitioners' submission that even assuming arguendo that there was no undue
delegation of power to the four representatives who signed the assailed Resolutions,
said Resolutions cannot still be given legal effect because the same did not comply
with the mandatory requirement of endorsement by the Joint Congressional Power
Commission and approval of the President of the Philippines, as provided under
Section 47 of the EPIRA Law which states that:
Section 47. NPC Privatization. – Except for the assets of SPUG, the
generation assets, real estate, and other disposable assets as well as IPP
contracts of NPC shall be privatized in accordance with this Act. Within six
(6) months from effectivity of this Act, the PSALM Corp. shall submit a plan
for the endorsement by the Joint Congressional Power Commission and the
approval of the President of the Philippines, on the total privatization of the
generation assets, real estate, other disposable assets as well as existing
IPP contracts of NPC and thereafter, implement the same, in accordance
with the following guidelines, except as provided for in paragraph (f) herein: x
x x.
Petitioners insist that if ever there exists a valid wholesale abolition of their positions
and their concomitant separation form the service, such a process is an integral part
of "privatization" and "restructuring" as defined under the EPIRA Law and, therefore,
must comply with the above-quoted provision requiring the endorsement of the Joint
Congressional Power Commission and the approval of the President of the
Philippines. Furthermore, petitioner highlight the fact that said Resolutions will have
an adverse effect on about 5,648 employees of the NPC and will result in the
displacement of some 2,370 employees, which, petitioners argue, is contrary to the
mandate of the Constitution to promote full employment and security of tenure.
Respondents, on the other hand, uphold the validity of the assailed Resolutions by
arguing that while it is true that four members of the National Power Board of
Directors, particularly the respective Secretaries of the Department of Interior and
Local Government, the Department of Trade and Industry, and the Department of
Finance, as well as the Director-General of the National Economic and Development
Authority, were not the actual signatories in NPB Resolutions No. 2002-124 and No.
2002-125, they were, however, ably represented by their respective alternates.
Respondents claim that the validity of such administrative practice whereby an
authority is exercised by persons or subordinates appointed by the responsible official
has long been settled. Respondents further contend that Section 48 of the EPIRA
Law does not in any way prohibit any member of the NPB from authorizing his
representative to sign resolutions adopted by the Board.
From the arguments put forward by herein parties, it is evident that the pivotal issue to
be resolved in this Petition for Injunction is whether or not NPB Resolutions No. 2002-
124 and No. 2002-125 were properly enacted. It is petitioners' contention that the
failure of the four specifically identified department heads 7 under Section 48 of the
EPIRA Law to personally approve and sign the assailed Resolutions invalidates the
adoption of said Resolutions. Petitioners maintain that there was undue delegation of
delegated power when only the representatives of certain members of the NPB
attended the board meetings and passed and signed the questioned Resolutions.
We agree with petitioners. In enumerating under Section 48 those who shall compose
the National Power Board of Directors, the legislature has vested upon these persons
the power to exercise their judgment and discretion in running the affairs of the NPC.
Discretion may be defined as "the act or the liberty to decide according to the
principles of justice and one's ideas of what is right and proper under the
circumstances, without willfulness or favor.8 Discretion, when applied to public
functionaries, means a power or right conferred upon them by law of acting officially in
certain circumstances, according to the dictates of their own judgment and
conscience, uncontrolled by the judgment or conscience of others. 9 It is to be
presumed that in naming the respective department heads as members of the board
of directors, the legislature chose these secretaries of the various executive
departments on the basis of their personal qualifications and acumen which made
them eligible to occupy their present positions as department heads. Thus, the
department secretaries cannot delegate their duties as members of the NPB, much
less their power to vote and approve board resolutions, because it is their personal
judgment that must be exercised in the fulfillment of such responsibility.
There is no question that the enactment of the assailed Resolutions involves the
exercise of discretion and not merely a ministerial act that could be validly performed
by a delegate, thus, the rule enunciated in the case of Binamira v. Garrucho10 is
relevant in the present controversy, to wit:
An officer to whom a discretion is entrusted cannot delegate it to another, the
presumption being that he was chosen because he was deemed fit and
competent to exercise that judgment and discretion, and unless the power to
substitute another in his place has been given to him, he cannot delegate his
duties to another.
 In those cases in which the proper execution of the office requires, on the
part of the officer, the exercise of judgment or discretion, the presumption is
that he was chosen because he was deemed fit and competent to exercise
that judgment and discretion, and, unless power to substitute another in his
place has been given to him, he cannot delegate his duties to another.

Respondents' assertion to the contrary is not tenable. The ruling in the case cited by
respondents to support their contention is not applicable in the case at bar. While it is
true that the Court has determined in the case of American Tobacco Company v.
Director of Patents11 that a delegate may exercise his authority through persons he
appoints to assist him in his functions, it must be stressed that the Court explicitly
stated in the same case that said practice is permissible only when the judgment
and discretion finally exercised are those of the officer authorized by
law. According to the Court, the rule that requires an administrative officer to exercise
his own judgment and discretion does not preclude him from utilizing, as a matter of
practical administrative procedure, the aid of subordinates, so long as it is the legally
authorized official who makes the final decision through the use of his own personal
judgment.

In the case at bar, it is not difficult to comprehend that in approving NPB Resolutions
No. 2002-124 and No. 2002-125, it is the representatives of the secretaries of the
different executive departments and not the secretaries themselves who exercised
judgment in passing the assailed Resolution, as shown by the fact that it is the
signatures of the respective representatives that are affixed to the questioned
Resolutions. This, to our mind, violates the duty imposed upon the specifically
enumerated department heads to employ their own sound discretion in exercising the
corporate powers of the NPC. Evidently, the votes cast by these mere representatives
in favor of the adoption of the said Resolutions must not be considered in determining
whether or not the necessary number of votes was garnered in order that the assailed
Resolutions may be validly enacted. Hence, there being only three valid votes cast
out of the nine board members, namely those of DOE Secretary Vincent S. Perez, Jr.;
Department of Budget and Management Secretary Emilia T. Boncodin; and NPC OIC-
President Rolando S. Quilala, NPB Resolutions No. 2002-124 and No. 2002-125 are
void and are of no legal effect.

Having determined that the assailed Resolutions are void as they lack the necessary
number of votes for their adoption, We no longer deem it necessary to pass upon the
other issues raised in the instant petition

WHEREFORE, premises considered, National Power Board Resolutions No. 2002-

124 and No. 2002-125 are hereby declared VOID and WITHOUT LEGAL EFFECT.
The Petition for Injunction is hereby GRANTED and respondents are
hereby ENJOINED from implementing said NPB Resolutions No. 2002-124 and No.
2002-125.

SO ORDERED.