Case Summary
Arigo vs. Swift (2014)
G.R. No. 206510 | 2014-09-15
Subject: Citizen suit in Environmental cases (Locus
Standi of petitioners); State immunity from suit
(Doctrine of sovereign immunity); Doctrine of non-
suability of the State also applies to complaints filed
against officials of the state for acts performed by
them in the discharge of their duties; Immunity of
foreign states from the jurisdiction of local courts;
State immunity extends only to acts Jure imperii;
Present petition is a suit against the United States,
and is barred under the principle of state immunity;
Waiver of State immunity under the VF A pertains only
to criminal jurisdiction; Award of damages not one of
the reliefs granted in a Writ of Kalikasan suit; US
expected to comply with international obligations
under the UNCLOS, despite being a non-party to the
international agreement; Court defers to the Executive
Branch on the matter of compensation and
rehabilitation measures
Facts:
This is a petition for the issuance of a Writ of
Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) in relation to
the grounding of the US military ship USS Guardian
over the Tubbataha Reefs.
In 1988, Tubbataha was declared a National Marine
Park. In 1993, Tubbataha was inscribed by the United
Nations Educational Scientific and Cultural
Organization (UNESCO) as a World Heritage Site.
Located in the middle of Central Sulu Sea, southeast
of Puerto Princesa City, Tubbataha lies at the heart of
the Coral Triangle, the global center of marine
biodiversity.
In 2010, Congress passed Republic Act No. 10067,
otherwise known as the "Tubbataha Reefs Natural
Park (TRNP) Act of 2009" "to ensure the protection
and conservation of the Tubbataha Reefs. Under the
"no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are
prohibited and penalized or fined, including fishing,
gathering, destroying and disturbing the resources
within the TRNP. The law likewise created the
Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and
permit-granting body of the TRNP.
On January 13, 2013, the USS Guardian, with
diplomatic clearance obtained by the US Embassy,
arrived at the port of Subic Bay “for the purpose of
routine ship replenishment, maintenance, and crew
liberty." Two days later, the USS Guardian departed
Subic Bay for its next port of call in Makassar,
Indonesia. On January 17, 2013 at 2:20 a.m. while
transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan.
The US Ambassador assured Foreign Affairs Secretary
Albert F. del Rosario that the United States will
provide appropriate compensation for damage to the
reef caused by the ship.
By March 30, 2013, the US Navy-led salvage team had
finished removing the last piece of the grounded ship
from the coral reef.
Petitioners on their behalf and in representation of
their respective sectors, filed the present petition for
issuance of a Writ of Kalikasan or TEPO against
respondents composed of members of the US Navy,
the President Aquino, Defense Secretary, Philippine
Coast Guard, etc. Petitioners claim that the grounding,
salvaging and post-salvaging operations of the USS
Guardian cause and continue to cause environmental
damage of such magnitude as to affect the provinces
of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros
Occidental, Negros Oriental, Zamboanga del Norte,
Basilan, Sulu, and Tawi-Tawi, which events violate
their constitutional rights to a balanced and healthful
ecology. They also seek a directive from the Court for
the institution of civil, administrative and criminal suits
for acts committed in violation of environmental laws
and regulations in connection with the grounding
incident.
Held:
Citizen suit in Environmental cases (Locus
Standi of petitioners)
1. Locus standi is "a right of appearance in a court of
justice on a given question." Specifically, it is "a
party’s personal and substantial interest in a case
where he has sustained or will sustain direct injury as
a result" of the act being challenged, and "calls for
more than just a generalized grievance."
1

2. However, the rule on standing is a procedural
matter which this Court has relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers and
legislators when the public interest so requires, such
as when the subject matter of the controversy is of
transcendental importance, of overreaching
significance to society, or of paramount public
interest.
3. In the landmark case of Oposa v. Factoran, Jr., we
recognized the "public right" of citizens to "a balanced
and healthful ecology which, for the first time in our
constitutional history, is solemnly incorporated in the
fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in
the Constitution for it is assumed, like other civil and
political rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of
transcendental importance with intergenerational
implications. Such right carries with it the correlative
duty to refrain from impairing the environment.
4. The Court ruled that not only do ordinary citizens
have legal standing to sue for the enforcement of
environmental rights, they can do so in representation
of their own and future generations. Their personality
to sue in behalf of the succeeding generations can
only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and
healthful ecology is concerned. Every generation has a
responsibility to the next to preserve that rhythm and
harmony of nature for the full enjoyment of a
balanced and healthful ecology.
5. The liberalization of standing first enunciated in
Oposa, insofar as it refers to minors and generations
yet unborn, is now enshrined in A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for
Environmental Cases (Rules) which allows the filing of
a citizen suit in environmental cases. The provision on
citizen suits in the Rules "collapses the traditional rule
on personal and direct interest, on the principle that
humans are stewards of nature.
State immunity from suit (Doctrine of sovereign
immunity)
6. The immunity of the State from suit, known also as
the doctrine of sovereign immunity or non-suability of
the State, is expressly provided in Section 3, Article
XVI of the 1987 Constitution which states: : “The
State may not be sued without its consent.”
7. The rule that a state may not be sued without its
consent is one of the generally accepted principles of
international law that we have adopted as part of the
law of our land under Article II, Section 2. Even
without such affirmation, we would still be bound by
the generally accepted principles of international law
under the doctrine of incorporation. Under this
doctrine, as accepted by the majority of states, such
principles are deemed incorporated in the law of every
civilized state as a condition and consequence of its
membership in the society of nations. Upon its
admission to such society, the state is automatically
obligated to comply with these principles in its
relations with other states. (see U.S. vs. Guinto)
8. As applied to the local state, the doctrine of state
immunity is based on the justification given by Justice
Holmes that "there can be no legal right against the
authority which makes the law on which the right
depends." [Kawanakoa v. Polybank] In the case of the
foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states
are sovereign equals and cannot assert jurisdiction
over one another. A contrary disposition would, in the
language of a celebrated case, "unduly vex the peace
of nations." (see U.S. vs. Guinto)
Doctrine of non-suability of the State also
applies to complaints filed against officials of
the state for acts performed by them in the
discharge of their duties
9. While the doctrine appears to prohibit only suits
against the state without its consent, it is also
applicable to complaints filed against officials of the
state for acts allegedly performed by them in the
discharge of their duties.The rule is that if the
judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same,
such as the appropriation of the amount needed to
pay the damages awarded against them, the suit must
be regarded as against the state itself although it has
not been formally impleaded. [Garcia vs. Chief of
Staff] In such a situation, the state may move to
dismiss the complaint on the ground that it has been
filed without its consent.
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Immunity of foreign states from the jurisdiction
of local courts
10. The precept that a State cannot be sued in the
courts of a foreign state is a long-standing rule of
customary international law then closely identified
with the personal immunity of a foreign sovereign
from suit and, with the emergence of democratic
states, made to attach not just to the person of the
head of state, or his representative, but also distinctly
to the state itself in its sovereign capacity. If the acts
giving rise to a suit arc those of a foreign government
done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official
capacity, the complaint could be barred by the
immunity of the foreign sovereign from suit without its
consent. Suing a representative of a state is believed
to be, in effect, suing the state itself. The proscription
is not accorded for the benefit of an individual but for
the State, in whose service he is, under the maxim -
par in parem, non habet imperium - that all states are
sovereign equals and cannot assert jurisdiction over
one another. The implication, in broad terms, is that if
the judgment against an official would require the
state itself to perform an affirmative act to satisfy the
award, such as the appropriation of the amount
needed to pay the damages decreed against him, the
suit must be regarded as being against the state itself,
although it has not been formally impleaded. (see
Minucher vs. Court of Appeals)
11. In the case of diplomatic immunity, the privilege
is not an immunity from the observance of the law of
the territorial sovereign or from ensuing legal liability;
it is, rather, an immunity from the exercise of
territorial jurisdiction.
State immunity extends only to acts Jure
imperii
12. The traditional rule of State immunity which
exempts a State from being sued in the courts of
another State without the former's consent or waiver
has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (Jure
imperii) from private, commercial and proprietary
acts (Jure gestionis). Under the restrictive rule of
State immunity, State immunity extends only to acts
Jure imperii. The restrictive application of State
immunity is proper only when the proceedings arise
out of commercial transactions of the foreign
sovereign, its commercial activities or economic
affairs.
13. The doctrine of immunity from suit will not
apply and may not be invoked where the public official
is being sued in his private and personal capacity as
an ordinary citizen. The cloak of protection afforded
the officers and agents of the government is removed
the moment they are sued in their individual capacity.
This situation usually arises where the public official
acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that
a public official may be liable in his personal private
capacity for whatever damage he may have caused by
his act done with malice and in bad faith, or beyond
the scope of his authority or jurisdiction. The rationale
for this ruling is that the doctrine of state immunity
cannot be used as an instrument for perpetrating an
injustice. (Shauf vs. Court of Appeals)
Present petition is a suit against the United
States, and is barred under the principle of
state immunity
14. The US respondents in this case were sued in
their official capacity as commanding officers of the
US Navywho had control and supervision over the USS
Guardian and its crew. The alleged act or omission
resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they were
performing official military duties. Considering that the
satisfaction of a judgment against said officials will
require remedial actions and appropriation of funds by
the US government, the suit is deemed to be one
against the US itself. The principle of State immunity
therefore bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and
Robling.
Waiver of state immunity under the VF A
pertains only to criminal jurisdiction
15. Petitioners argue that there is a waiver of
immunity from suit found in the Visiting Forces
Ageement (VFA). Even under the common law tort
claims, petitioners asseverate that the US respondents
are liable for negligence, trespass and nuisance.
16. The waiver of State immunity under the VFA
pertains only to criminal jurisdiction and not to special
civil actions such as the present petition for issuance
of a writ of Kalikasan. In fact, it can be inferred from
Section 17, Rule 7 of the Rules that a criminal case
3
against a person charged with a violation of an
environmental law is to be filed separately.
17. The VFA is an agreement which defines the
treatment of United States troops and personnel
visiting the Philippines to promote "common security
interests" between the US and the Philippines in the
region. It defines the rights of the United States and
the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials
and supplies. The invocation of US federal tort laws
and even common law is thus improper considering
that it is the VFA which governs disputes involving US
military ships and crew navigating Philippine waters in
pursuance of the objectives of the agreement.
18. In any case, it is our considered view that a ruling
on the application or non-application of criminal
jurisdiction provisions of the VFA to US personnel who
may be found responsible for the grounding of the
USS Guardian, would be premature and beyond the
province of a petition for a writ of Kalikasan. We also
find it unnecessary at this point to determine whether
such waiver of State immunity is indeed absolute.
Award of damages not one of the reliefs
granted in a Writ of Kalikasan suit
19. We cannot grant damages which have resulted
from the violation of environmental laws. The Rules
allows the recovery of damages, including the
collection of administrative fines under R.A. No.
10067, in a separate civil suitor that deemed instituted
with the criminal action charging the same violation of
an environmental Law.
20. Section 15, Rule 7 enumerates the reliefs which
may be granted in a petition for issuance of a Writ of
Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the
time the petition is submitted for decision, the court
shall render judgment granting or denying the
privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the
following:
xxx
( e) Such other reliefs which relate to the right of the
people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration
of the environment, except the award of damages to
individual petitioners.
US expected to comply with international
obligations under the UNCLOS, despite being a
non-party to the international agreement
21. Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case, when
its warship entered a restricted area in violation of
R.A. No. 10067 and caused damage to the TRNP reef
system, brings the matter within the ambit of Article
31 of the United Nations Convention on the Law of the
Sea (UNCLOS). He explained that while historically,
warships enjoy sovereign immunity from suit as
extensions of their flag State, Art. 31 of the UNCLOS
creates an exception to this rule in cases where they
fail to comply with the rules and regulations of the
coastal State regarding passage through the latter's
internal waters and the territorial sea.
22. The international law of the sea is generally
defined as "a body of treaty rules arid customary
norms governing the uses of the sea, the exploitation
of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international
law, regulating the relations of states with respect to
the uses of the oceans." The UNCLOS is a multilateral
treaty which was opened for signature on December
10, 1982 at Montego Bay, Jamaica. It was ratified by
the Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the 60th
ratification.
23. The UNCLOS is a product of international
negotiation that seeks to balance State sovereignty
(mare clausum)and the principle of freedom of the
high seas (mare liberum). The freedom to use the
world's marine waters is one of the oldest customary
principles of international law. The UNCLOS gives to
the coastal State sovereign rights in varying degrees
over the different zones of the sea which are: 1)
internal waters, 2) territorial sea, 3) contiguous zone,
4) exclusive economic zone, and 5) the high seas. It
also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is
located.
24. Insofar as the internal waters and territorial sea is
concerned, the Coastal State exercises sovereignty,
subject to the UNCLOS and other rules of international
law. Such sovereignty extends to the air space over
4
the territorial sea as well as to its bed and subsoil.
25. In the case of warships, they continue to enjoy
sovereign immunity subject to the following
exceptions: Article 30(Non-compliance by warships
with the laws and regulations of the coastal State);
Article 31 (Responsibility of the flag State for damage
caused by a warship or other government ship
operated for non-commercial purposes); Article 32
(Immunities of warships and other government
ships operated for non-commercial purposes).
26. A foreign warship's unauthorized entry into our
internal waters with resulting damage to marine
resources is one situation in which the above
exception (removing immunity) may apply. But what if
the offending warship is a non-party to the UNCLOS,
as in this case, the US? While over 80% of nation
states are now members of UNCLOS, the US, the
world's leading maritime power, has not ratified it.
27. According to Justice Carpio, although the US to
date has not ratified the UNCLOS, as a matter of long-
standing policy the US considers itself bound by
customary international rules on the "traditional uses
of the oceans" as codified in UNCLOS.
28. Non-membership in the UNCLOS does not mean
that the US will disregard the rights of the Philippines
as a Coastal State over its internal waters and
territorial sea. We thus expect the US to bear
"international responsibility" under Art. 31 in
connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs.
29. Although the said treaty upholds the immunity of
warships from the jurisdiction of Coastal States while
navigating the latter's territorial sea, the flag States
shall be required to leave the territorial sea
immediately if they flout the laws and regulations of
the Coastal State, and they will be liable for damages
caused by their warships or any other government
vessel operated for non-commercial purposes under
Article 31.
Court defers to the Executive Branch on the
matter of compensation and rehabilitation
measures
30. This petition has become moot in the sense that
the salvage operation sought to be enjoined or
restrained had already been accomplished when
petitioners sought recourse from this Court. But
insofar as the directives to Philippine respondents to
protect and rehabilitate the coral reef structure and
marine habitat adversely affected by the grounding
incident are concerned, petitioners are entitled to
these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef.
31. The US and Philippine governments both
expressed readiness to negotiate and discuss the
matter of compensation for the damage caused by the
USS Guardian. Exploring avenues for settlement of
environmental cases is not proscribed by The Rules.
Mediation and settlement are available for the
consideration of the parties, and which dispute
resolution methods are encouraged by the court.
32. The Court defers to the Executive Branch on the
matter of compensation and rehabilitation measures
through diplomatic channels. Resolution of these
issues impinges on our relations with another State in
the context of common security interests under the
VFA. It is settled that "[t]he conduct of the foreign
relations of our government is committed by the
Constitution to the executive and legislative-"the
political" --departments of the government, and the
propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or
decision.
2. Case Summary
Heirs of Mendoza vs DPWH (2014)
G.R. No. 203834 | 2014-07-09
Subject: Termination of the project contract was
justified due to delays incurred by contractor; State
will be deemed to have impliedly waived its
nonsuability only if it has entered into a contract in its
proprietary or private capacity; Contracts entered into
by DPWH with Mendoza for public works construction
were done in the exercise of its governmental
functions
Facts:
Diosdado Mendoza, doing business under the name
and style of D’ Superior Builders, was the winning
bidder for the construction of the 15- kilometer
Madaymen Masala Amsuling Road in Benguet and the
engineers’ quarters and laboratory, designated as
Package VI, of the Highland Agriculture Development
Project (HADP). His total bid for materials and labor
5
was P16,176,878.58. He was also the winning bidder
for the construction of the 15-kilometer barangay
roads in Benguet, designated as Package IX of the
HADP, with a bid of P10,527,192.14.
The DPWH hired United Technologies, Inc. (UTI) as
consultant for Packages VI and IX, under the direct
charge of UTI’s President Pedro Templo and UTI’s
Project Manager Rodante Samonte.
During the pre-construction survey for Package VI,
Mendoza alleged that he discovered that the whole
stretch of the 15-kilometer project had no right-of-
way, in violation of Ministry Order No. 65. He brought
the matter to the attention of the DPWH and UTI but
according to him, it was only resolved on 29
November 1989 when the affected landowners and
farmers allowed passage at Mendoza’s risk.
Mendoza alleged that the defendants DPWH and UTI,
except for DPWH Secretary Estuar, conspired to make
it appear that Superior Builders incurred negative
slippage of 29% and recommended the forfeiture of
the contract.
Mendoza further alleged that as regards Package IX,
the DPWH did not execute any contract despite the
Superior Builders’ compliance with all the post-
evaluation requirements. The DPWH also
recommended the rebidding of Package IX. Package
IX was, in effect, canceled together with the forfeiture
of the contract for Package VI.
Mendoza filed an action for specific performance and
damages, with prayer for preliminary injunction
against DPWH and UTI.
The RTC ruled that the termination of the contract
over Package VI and the non-award of Package IX to
Superior Builders were arbitrary and unjustified.
Superior Builders could not be faulted for its failure to
perform the obligation within the stipulated period
because the DPWH made it impossible by its failure to
acquire the necessary right-of-way. The trial court
further ruled that in entering into a contract, the
DPWH divested itself of immunity from suit and
assumed the character of an ordinary litigant.
The Court of Appeals set aside the trial court’s
decision and held that the DPWH’s forfeiture order of
Package VI of the HADP as well as the non-award of
Package IX to Superior Builders was justified. The
negative slippage of Superior Builders was already
31.852%, or more than double the limit of what is
considered as being at “terminal stage”, which is 15%.
The Court of Appeals also ruled that the DPWH’s
contractual obligation was made in the exercise of its
governmental functions and was imbued with public
interest.
Held:
Termination of the project contract was
justified due to delays incurred by contractor
1. The negative slippage incurred by Superior
Builders, which reached 31.852%, far exceeded the
allowable slippage under Presidential Decree No.
1870, series of 1983, which states that: “Whenever a
contractor is behind schedule in its contract work and
incur 15% or more negative slippage based on its
approved PERT/CPM, the implementing agency, at the
discretion of the Minister concerned, may undertake
by administration the whole or a portion of the
unfinished work, or have the whole or a portion of
such unfinished work done by another qualified
contractor through negotiated contract at the current
valuation price.”
2. Under Department Order No. 102, series of 1988,
the discretion of the DPWH to terminate or rescind the
contract comes into play when the contractor shall
have incurred a negative slippage of 15% or more.
3. Superior Builders claimed that the negative
slippages were attributable to the government, citing
the right-of-way problem because the construction
site was privately owned. However, the right-of-way
problem turned out to affect only the first 3.2
kilometers of the project. Apparently, Superior
Builders was not able to go beyond the 3.2 kilometers
because of the limited equipment it mobilized on the
project site. In fact, its bulldozer broke down after
three days of work, proving that Superior Builders had
been remiss in its responsibilities as a contractor. In
addition, Abalos, the property owner affected by the
right of way, denied that he disallowed the passage of
Superior Builders’ vehicles and equipment on the road
within his property. In short, Superior Builders could
have proceeded with the project, as it was constantly
reminded to do so, but it capitalized on the right-of-
way problem to justify its delays.
4. Given the foregoing, the DPWH was justified in
6
forfeiting Package VI for Superior Builders’ failure to
comply with its contractual obligations. We also note
that Package IX of the HADP was tied to the
completion of Package VI because the Asian
Development Bank could not approve the award of
Package IX to Superior Builders unless its work on
Package VI was satisfactory to the DPWH. This
explains why Package IX had to be rebid despite the
initial award of the project to Superior Builders.
State will be deemed to have impliedly waived
its nonsuability only if it has entered into a
contract in its proprietary or private capacity
5. The doctrine of immunity from suit is anchored on
Section 3, Article XVI of the 1987 Constitution which
provides: “The State may not be sued without its
consent.”
6. The general rule is that a state may not be sued,
but it may be the subject of a suit if it consents to be
sued, either expressly or impliedly. There is express
consent when a law so provides, while there is implied
consent when the State enters into a contract or it
itself commences litigation.
7. In order to determine implied waiver when the
State or its agency entered into a contract, there is a
need to distinguish whether the contract was entered
into in its governmental or proprietary capacity.
8. When a state enters into a contract, it does not
automatically mean that it has waived its nonsuability.
The State will be deemed to have impliedly waived
its nonsuability only if it has entered into a contract
in its proprietary or private capacity.
However, when the contract involves its sovereign or
governmental capacity, no such waiver may be
implied.” Statutory provisions waiving state immunity
are construed in strictissimi juris. For, waiver of
immunity is in derogation of sovereignty. (see
Department of Health v. Phil. Pharmawealth, Inc.)
9. An unincorporated agency without any separate
juridical personality of its own enjoys immunity from
suit because it is invested with an inherent power of
sovereignty. However, the need to distinguish
between an unincorporated government agency
performing governmental function and one performing
proprietary functions has arisen. The immunity has
been upheld in favor of the former because its
function is governmental or incidental to such
function; it has not been upheld in favor of the latter
whose function was not in pursuit of a necessary
function of government but was essentially a
business. (see Air Transportation Office v. Ramos)
Contracts entered into by DPWH with Mendoza
for public works construction were done in the
exercise of its governmental functions
10. The DPWH is an unincorporated government
agency without any separate juridical personality of its
own and it enjoys immunity from suit.
11. It is clear from the enumeration of its functions
that the DPWH performs governmental functions.
Section 5(d) of EO 124 states that it has the power to
“[i]dentify, plan, secure funding for, program, design,
construct or undertake prequalification, bidding, and
award of contracts of public works projects x x x”
while Section 5(e) states that it shall “[p]rovide the
works supervision function for all public works
construction and ensure that actual construction is
done in accordance with approved government plans
and specifications.”
12. The contracts that the DPWH entered into with
Mendoza for the construction of Packages VI and IX of
the HADP were done in the exercise of its
governmental functions. Hence, petitioners cannot
claim that there was an implied waiver by the DPWH
simply by entering into a contract. The Court of
Appeals correctly ruled that theDPWH enjoys
immunity from suit and may not be sued without its
consent.
3. Case Summary
ACCFA v. CUGCO
G.R. No. L-21484 | 1969-11-29
Subject: Governmental function, proprietary
function, constituent function, ministrant function
Facts:
The Agricultural Credit and Cooperative Financing
Administration (ACCFA) was a government agency
created under Republic Act No. 821. The Land Reform
Code (Republic Act No. 3844) reorganized and
changed its name to the Agricultural Credit
Administration. A collective bargaining agreement was
entered into between ACCFA and its two unions. The
7
Union declared a strike and, together with its mother
union, the Confederation of Unions in Government
Corporations and Offices (CUGCO) filed a case with
the Court of Industrial Relations (CIR) for unfair labor
practice. During the pendency of this case, the unions
filed a petition for certification election with the CIR.
In both instances, ACCFA challenges the jurisdiction of
the CIR arguing that is engaged in governmental
functions
Held:
Governmental functions
1. ACCFA is a government office or agency engaged in
government, not proprietary functions
2. It was established to extend credit and similar
assistance to agriculture. The implementation of the
land reform program in accordance with the Land
Reform Code is most certainly a governmental, not a
proprietary function.
Constituent functions
3. These functions may not be strictly what President
Wilson described as "constituent," as opposed to
“ministrant” such as those relating to the maintenance
of peace and the prevention of crime, those regulating
property and property rights, those relating to the
administration of justice and the determination of
political duties of citizens, and those relating to
national defense and foreign relations.
4. Under this traditional classification, such constituent
functions are exercised by the State as attributes of
sovereignty, and not merely to promote the welfare,
progress and prosperity of the people — these letter
functions being ministrant he exercise of which is
optional on the part of the government.
5. The growing complexities of modern society,
however, have rendered this traditional classification
of the functions of government quite unrealistic, not to
say obsolete. The areas which used to be left to
private enterprise and initiative and which the
government was called upon to enter optionally, and
only "because it was better equipped to administer for
the public welfare than is any private individual or
group of individuals," continue to lose their well-
defined boundaries and to be absorbed within
activities that the government must undertake in its
sovereign capacity if it is to meet the increasing social
challenges of the times. Here as almost everywhere
else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this
development was envisioned, indeed adopted as a
national policy, by the Constitution itself in its
declaration of principle concerning the promotion of
social justice.
4. Case Summary
Shell Philippines Exploration B. V. vs. Efren
Jalos
G.R. No. 179918 | 2010-09-08
Subject: The case falls within the administrative
jurisdiction of the Pollution Adjudication Board; The
complaint sufficiently alleges a cause of action against
Shell; Shell is not an agent of the State and cannot
invoke state immunity
Facts:
In 1990, Shell Philippines Exploration B.V. (Shell) and
the Republic of the Philippines entered into Service
Contract 38 for the exploration and extraction of
petroleum in northwestern Palawan. Two years later,
Shell discovered natural gas in the Camago-
Malampaya area and pursued its development of the
well under the Malampaya Natural Gas Project. This
entailed the construction and installation of a pipeline
spanning 504 kilometers which crossed the Oriental
Mindoro Sea.
In 2003, respondents Efren Jalos and 75 other
individuals (Jalos, et al) filed a complaint for damages
against Shell before the Regional Trial Court (RTC).
Jalos, et al claimed that they were all subsistence
fishermen from the coastal barangay of Bansud,
Oriental Mindoro whose livelihood was adversely
affected by the construction and operation of Shell's
natural gas pipeline. They claimed that their fish catch
became few after the construction of the pipeline. As
a result, their average net income per month fell from
a high of P4,848.00 to only P573.00. They said that
"the pipeline greatly affected biogenically hard-
structured communities such as coral reefs and led
[to] stress to the marine life in the Mindoro Sea." They
now have to stay longer and farther out at sea to
catch fish, as the pipeline's operation has driven the
fish population out of coastal waters.
Instead of filing an answer, Shell moved for dismissal
8
of the complaint. It alleged that the trial court had no
jurisdiction over the action, as it is a "pollution case"
and the Pollution Adjudication Board (PAB) has
primary jurisdiction. Shell also claimed that it could
not be sued pursuant to the doctrine of state
immunity since under Service Contract, it served
merely as an agent of the Philippine government in
the development of the Malampaya gas reserves. Shell
points out that the complaint also states no cause of
action because it failed to specify any actionable
wrong or particular act or omission on Shell's part.
The RTC dismissed the complaint ruling that the
action should be brought before the PAB, the
government agency vested with jurisdiction over
pollution-related cases.
The Court of Appeals (CA) reversed and upheld the
jurisdiction of the RTC over the action. It said that
Shell was not being sued for committing pollution, but
for constructing and operating a natural gas pipeline
that caused fish decline and considerable reduction in
the fishermen's income. The claim for damages was
thus based on a quasi-delict over which the regular
courts have jurisdiction. The CA also rejected Shell's
assertion that the suit was actually against the State
and that it stated no cause of action.
Shell moved for reconsideration of the CA's decision
but the same was denied. Hence, it filed this petition
for review under Rule 45. The issues for resolution
are:
(a) Whether or not the complaint is a pollution case
that falls within the primary jurisdiction of the PAB;
(b) Whether or not the complaint sufficiently alleges a
cause of action against Shell; and
(c) Whether or not the suit is actually against the
State and is barred under the doctrine of state
immunity.
Held:
The case falls within the administrative
jurisdiction of the Pollution Adjudication Board
1. Although the complaint of Jalos, et al does not use
the word "pollution" in describing the cause of the
alleged fish decline in the Mindoro Sea, it is
unmistakable based on their allegations that Shell's
pipeline produced some kind of poison or emission
that drove the fish away from the coastal areas. While
the complaint did not specifically attribute to Shell any
specific act of "pollution," it alleged that "the pipeline
greatly affected biogenically hard-structured
communities such as coral reefs and led [to] stress to
the marine life in the Mindoro Sea." This constitutes
"pollution" as defined by law.
2. Section 2(a) of P.D. 984 defines "pollution" as
"any alteration of the physical, chemical and biological
properties of any water x x x as will or is likely to
create or render such water x x x harmful, detrimental
or injurious to public health, safety or welfare or which
will adversely affect their utilization for domestic,
commercial, industrial, agricultural, recreational or
other legitimate purposes."
3. It is clear from this definition that the stress to
marine life claimed by Jalos, et al is caused by some
kind of pollution emanating from Shell's natural gas
pipeline. The pipeline, they said, "greatly affected" or
altered the natural habitat of fish and affected the
coastal waters' natural function as fishing grounds.
Inevitably, in resolving Jalos, et al's claim for
damages, the proper tribunal must determine whether
or not the operation of the pipeline adversely altered
the coastal waters' properties and negatively affected
its life sustaining function. The power and expertise
needed to determine such issue lies with the Pollution
Adjudication Board (PAB).
4. Executive Order 192 (1987) transferred to the PAB
the powers and functions of the National Pollution and
Control Commission provided in R.A. 3931, as
amended by P.D. 984. These empowered the PAB to
"determine the location, magnitude, extent, severity,
causes and effects" of water pollution. Among its
functions is to "serve as arbitrator for the
determination of reparation, or restitution of the
damages and losses resulting from pollution." In this
regard, the PAB has the power to conduct hearings,
impose penalties for violation of P.D. 984, and issue
writs of execution to enforce its orders and decisions.
The PAB's final decisions may be reviewed by the CA
under Rule 43 of the Rules of Court.
5. Jalos, et al had, therefore, an administrative
recourse before filing their complaint with the regular
courts. The laws creating the PAB and vesting it with
powers are wise. The definition of the term "pollution"
itself connotes the need for specialized knowledge and
skills, technical and scientific, in determining the
presence, the cause, and the effects of pollution.
9
These knowledge and skills are not within the
competence of ordinary courts. Consequently, resort
must first be made to the PAB, which is the agency
possessed of expertise in determining pollution-related
matters.
6. To this extent, the failure of Jalos, et al to allege in
their complaint that they had first taken resort to PAB
before going to court means that they failed to state a
cause of action that the RTC could act on. This
warranted the dismissal of their action.
The complaint sufficiently alleges a cause of
action against Shell
7. A cause of action is the wrongful act or omission
committed by the defendant in violation of the primary
rights of the plaintiff. Its elements consist of: (1)
a right existing in favor of the plaintiff, (2) a duty on
the part of the defendant to respect the plaintiff's
right, and (3) an act or omission of the defendant in
violation of such right. To sustain a motion to dismiss
for lack of cause of action, however, the complaint
must show that the claim for relief does not exist and
not only that the claim was defectively stated or is
ambiguous, indefinite or uncertain.
8. All the elements of a cause of action are present.
First, Jalos, et al had the right to the preferential use
of marine and fishing resources which is guaranteed
by no less than the Constitution. Second, Shell had
the correlative duty to refrain from acts or omissions
that could impair Jalos, et al's use and enjoyment of
the bounties of the seas. Lastly, Shell's construction
and operation of the pipeline, which is an act of
physical intrusion into the marine environment, is said
to have disrupted and impaired the natural habitat of
fish and resulted in considerable reduction of fish
catch and income for Jalos, et al.
9. While the complaint did not contain some scientific
explanation regarding how the construction and
operation of the pipeline disturbed the waters and
drove away the fish from their usual habitat as the
fishermen claimed, the lack of particulars is not a
ground for dismissing the complaint.
10. The construction and operation of the pipeline
may, in itself, be a wrongful act that could be the
basis of Jalos, et al's cause of action. The rules do not
require that the complaint establish in detail the
causal link between the construction and operation of
the pipeline, on the one hand, and the fish decline and
loss of income, on the other hand, it being sufficient
that the complaint states the ultimate facts on which it
bases its claim for relief. The test for determining the
sufficiency of a cause of action rests on whether the
complaint alleges facts which, if true, would justify the
relief demanded. In this case, a valid judgment for
damages can be made in favor of Jalos, et al, if the
construction and operation of the pipeline indeed
caused fish decline and eventually led to the
fishermen's loss of income, as alleged in the
complaint.
Shell is not an agent of the State and cannot
invoke state immunity
11. Shell is not an agent of the Republic of the
Philippines. It is but a service contractor for the
exploration and development of one of the country's
natural gas reserves. While the Republic appointed
Shell as the exclusive party to conduct petroleum
operations in the Camago-Malampayo area under the
State's full control and supervision, it does not follow
that Shell has become the State's "agent" within the
meaning of the law.
12. The essence of an agency is the agent's ability to
represent his principal and bring about business
relations between the latter and third persons. It is
this power to affect the principal's contractual
relations with third persons that differentiates the
agent from a service contractor.
13. Shell's main undertaking under Service Contract
38 is to "perform all petroleum operations and provide
all necessary technology and finance" as well as other
connected services to the Philippine government.
Shell's primary obligation under the contract is not to
represent the Philippine government for the purpose
of transacting business with third persons. Rather, its
contractual commitment is to develop and manage
petroleum operations on behalf of the State.
14. Consequently, Shell is not an agent of the
Philippine government, but a provider of services,
technology and financing for the Malampaya Natural
Gas Project. It is not immune from suit and may be
sued for claims even without the State's consent.
Notably, Service Contract 38 stipulated that payment
of claims and damages pursuant to a judgment
against Shell can be deducted from gross proceeds.
10
This signifies that the State itself acknowledged the
suability of Shell.
5. Case Summary
Saguisag vs. Executive Secretary Ochoa (2015)
G.R. Nos. 212426 & 212444 | 2016-01-12
Subject: Power of judicial review; Requisites for the
exercise of the power of judicial review; An actual
case or controversy is present; Locus standi; Petitions
cannot qualify as citizens', taxpayers', or legislators'
suits; Petition nonetheless raise issues involving
matters of transcendental importance; The role of the
President as the executor of the law includes the duty
to defend the State, for which purpose he may use
that power in the conduct of foreign relations;
Constitution prohibits the entry of foreign military
bases, troops or facilities, except by way of a treaty
concurred in by the Senate; Constitutional restriction
under Sec 25, Art XVIII pertains to the entry of the
bases, troops, or facilities, and not to the activities to
be done after entry is authorized; Treaties vs.
Executive Agreement; Constitutional restrictions on
the power of the President to conclude international
agreements; Power of the President to enter into
binding executive agreements without Senate
concurrence; President had the choice to enter into
EDCA by way of an executive agreement or a treaty;
Executive agreements may cover the matter of foreign
military forces if it merely involves detail adjustments;
EDCA as a valid executive agreement; EDCA is
consistent with the content, purpose, and framework
of the MDT and the VFA; Admission of U.S. military
and civilian personnel into Philippine territory is
already allowed under the VFA; EDCA does not
guaratee admission of U.S. contractors into Philippine
territory; Authorized activities of U.S. military and
civilian personnel within Philippine territory are in
furtherance of the MDT and the VFA; EDCA does not
authorize permanent presence of US forces and
bases; Authorized activities performed by US.
contractors within Philippine territory are subject to
Philippines laws and must be consistent with the MDT
and the VFA; EDCA is not a disguised version of the
Military Bases Agreement (MBA); Agreed Locations
under EDCA do not fall under the concept of "foreign
military bases and facilities" which requires Senate
concurrence under Section 25, Art XVIII, 1987
Constitution; First standard: independence from
foreign control; Second standard: Philippine
sovereignty and applicable law; Third standard: must
respect national security and territorial integrity;
Public franchise not required for telecommunication
system intended solely for the use of the U.S.;
Prohibition on introduction of nuclear weapons into
Philippine territory is respected; Assumption of tax
liability by the Philippine government does not create
a tax exemption
Facts:
The petitions allege that the Executive Department
committed grave abuse of discretion in entering into
the Enhanced Defense Cooperation Agreement (EDCA)
with the United States of America (U.S.) in the form of
an executive agreement, instead of a treaty concurred
in by the Senate.
The EDCA authorizes the U.S. military forces to have
access to and conduct activities within certain "Agreed
Locations" in the country. It was not transmitted to
the Senate on the executive's understanding that to
do so was no longer necessary. Accordingly, in June
2014, the Department of Foreign Affairs (DFA) and the
U.S. Embassy exchanged diplomatic notes confirming
the completion of all necessary internal requirements
for the agreement to enter into force in the two
countries. President Benigno S. Aquino III ratified
EDCA on June 6, 2014. The Philippine and the U.S.
governments had yet to agree formally on the specific
sites of the Agreed Locations mentioned in the
agreement.
The issues presented before the court are:
(a) Whether the essential requisites for judicial review
are present
(b) Whether the President may enter into an executive
agreement on foreign military bases, troops, or
facilities
(c) Whether the provisions under EDCA are consistent
with the Constitution, as well as with existing laws and
treaties
Held:
I. Procedural Issues
Power of judicial review
1. Distinguished from the general notion of judicial
power, the power of judicial review specially refers
to both the authority and the duty of this Court
to determine whether a branch or an instrumentality
11
of government has acted beyond the scope of the
latter's constitutional powers. As articulated in Section
1, Article VIII of the Constitution, the power of judicial
review involves the power to resolve cases in which
the questions concern the constitutionality or validity
of any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation. In our
fundamental law, the role of the Court is to determine
whether a branch of government has adhered to the
specific restrictions and limitations of the latter's
power.
2. Under the 1987 Constitution, the scope of the
power of judicial review has been extended to the
determination of whether in matters traditionally
considered to be within the sphere of appreciation of
another branch of government, an exercise of
discretion has been attended with grave abuse.
The expansion of this power has made the political
question doctrine "no longer the insurmountable
obstacle to the exercise of judicial power or the
impenetrable shield that protects executive and
legislative actions from judicial inquiry or review.
3. The "pillars" of the limitations on the power of
judicial review are:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated
only as required by the facts of the case
3. That judgment may not be sustained on some other
ground
4. That there be actual injury sustained by the
party by reason of the operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of
constitutionality
(see Demetria v. Alba and Francisco v. House of
Representatives citing the concurring opinion of U.S.
Supreme Court Justice Brandeis in Ashwander v.
Tennessee Valley Authority)
Requisites for the exercise of the power of
judicial review
4. The power of judicial review may only be exercised
when the following four stringent requirements are
satisfied:
(a) there is an actual case or controversy
(b) petitioners possess locus standi
(c) the question of constitutionality is raised at the
earliest opportunity; and
( d) the issue of constitutionality is the lis mota of the
case.
An actual case or controversy is present
5. The focus of this requirement is the ripeness for
adjudication of the matter at hand, as opposed to its
being merely conjectural or anticipatory. The case
must involve a definite and concrete issue involving
real parties with conflicting legal rights and legal
claims admitting of specific relief through a decree
conclusive in nature. It should not equate with a mere
request for an opinion or advice on what the law
would be upon an abstract, hypothetical, or
contingent state of facts.
6. The OSG contends that the nonparticipation of the
Senators in the present petitions only confirms that
even they believe that EDCA is a binding executive
agreement that does not require their concurrence.
7. It must be emphasized that the Senate has already
expressed its position through SR 105. Through the
Resolution, the Senate has taken a position contrary
to that of the OSG. As the body tasked to participate
in foreign affairs by ratifying treaties, its belief that
EDCA infringes upon its constitutional role indicates
that an actual controversy - albeit brought to the
Court by non-Senators, exists.
8. The matter before us involves an actual case or
controversy that is already ripe for adjudication. The
Executive Department has already sent an official
confirmation to the U.S. Embassy that "all internal
requirements of the Philippines x x x have already
been complied with." By this exchange of diplomatic
notes, the Executive Department effectively performed
the last act required under Article XII(l) of EDCA
before the agreement entered into force. Section 25,
Article XVIII of the Constitution, is clear that the
presence of foreign military forces in the country shall
only be allowed by virtue of a treaty concurred in by
the Senate. Hence, the performance of an official act
by the Executive Department that led to the entry into
force of an executive agreement was sufficient to
satisfy the actual case or controversy requirement.
12
Locus standi
9. The question of locus standi or legal standing
focuses on the determination of whether those
assailing the governmental act have the right of
appearance to bring the matter to the court for
adjudication. They must show that they have
a personal and substantial interest in the case, such
that they have sustained or are in immediate danger
of sustaining, some direct injury as a consequence of
the enforcement of the challenged governmental act.
10. Here, it would be insufficient to show that the law
or any governmental act is invalid, and that petitioners
stand to suffer in some indefinite way. They must
show that they have a particular interest in bringing
the suit, and that they have been or are about to be
denied some right or privilege to which they are
lawfully entitled, or that they are about to be
subjected to some burden or penalty by reason of the
act complained of.
Petitions cannot qualify as citizens', taxpayers',
or legislators' suits
11. The present petitions cannot qualify as citizens',
taxpayers', or legislators' suits; the Senate as a body
has the requisite standing, but considering that it has
not formally filed a pleading to join the suit, as it
merely conveyed to the Supreme Court its sense that
EDCA needs the Senate's concurrence to be valid,
petitioners continue to suffer from lack of standing.
(a) Petition cannot qualify as Citizen's suits
12. In assailing the constitutionality of a
governmental act, petitioners suing as citizens may
dodge the requirement of having to establish a direct
and personal interest if they show that the act affects
a public right. But aside from general statements that
the petitions involve the protection of a public right,
and that their constitutional rights as citizens would be
violated, petitioners fail to make any specific assertion
of a particular public right that would be violated by
the enforcement of EDCA. For their failure to do so,
the present petitions cannot be considered by the
Court as citizens' suits that would justify a disregard of
the aforementioned requirements.
(b) Petition cannot qualify as Taxpayer's suits
13. A taxpayer's suit concerns a case in which the
official act complained of directly involves the illegal
disbursement of public funds derived from taxation.
Applying that principle to this case, petitioners must
establish that EDCA involves the exercise by Congress
of its taxing or spending powers.
14. The petitions cannot qualify as taxpayers' suits. A
taxpayers' suit contemplates a situation in which there
is already an appropriation or a disbursement of public
funds. A reading of Article X(l) of EDCA would show
thatthere has been neither an appropriation nor an
authorization of disbursement of funds. Specifically,
EDCA provides that “All obligations under this
Agreement are subject to the availability of
appropriated funds authorized for these purposes”
Hence, under the agreement, before there can even
be a disbursement of public funds, there must first be
a legislative action. Until and unless the Legislature
appropriates funds for EDCA, or unless petitioners can
pinpoint a specific item in the current budget that
allows expenditure under the agreement, we cannot
at this time rule that there is in fact an appropriation
or a disbursement of funds that would justify the filing
of a taxpayers' suit.
(c) Petition cannot qualify as Legislator's suits
15. In a legislators' suit, those Members of Congress
who are challenging the official act have standing only
to the extent that the alleged violation impinges on
their right to participate in the exercise of the powers
of the institution of which they are members.
Legislators are allowed to sue to question the validity
of any official action, which they claim infringes their
prerogatives as legislators. As legislators, they must
clearly show that there was a direct injury to their
persons or the institution to which they belong.
16. The power to concur in a treaty or an
international agreement is an institutional prerogative
granted by the Constitution to the Senate, not to the
entire Legislature. The injured party would be the
Senate as an institution or any of its incumbent
members, as it is the Senate's constitutional function
that is allegedly being violated. Petitioners, not being
members of the Senate, do not have any legal
standing to file the suits concerning the lack of Senate
concurrence in EDCA (see Pimentel v. Office of the
Executive Secretary)
13
Petition nonetheless raise issues involving
matters of transcendental importance
17. In a number of cases, the Court has taken a
liberal stance towards the requirement of legal
standing, especially when paramount interest is
involved. When those who challenge the official act
are able to craft an issue of transcendental
significance to the people, the Court may exercise its
sound discretion and take cognizance of the suit. It
may do so in spite of the inability of the petitioners to
show that they have been personally injured by the
operation of a law or any other government act.
18. Petitioners have presented serious constitutional
issues that provide ample justification for the Court to
set aside the rule on standing. The transcendental
importance of the issues presented here is rooted in
the Constitution itself. Section 25, Article XVIII
thereof, cannot be any clearer: there is a much
stricter mechanism required before foreign military
troops, facilities, or bases may be allowed in the
country. The DFA has already confirmed to the U.S.
Embassy that "all internal requirements of the
Philippines x x x have already been complied with." It
behooves the Court in this instance to determine
whether there was grave abuse of discretion on the
part of the Executive Department.
II. Substantive Issues
The role of the President as the executor of the
law includes the duty to defend the State, for
which purpose he may use that power in the
conduct of foreign relations
19. Throughout the different versions of the Philippine
Constitution, the supreme executive power has been
specifically vested in the President of the Philippines
(formerly, Governor-General). One of the principal
functions of the supreme executive is the
responsibility for the faithful execution of the laws as
embodied by the oath of office.
20. The duty to faithfully execute the laws of the
land is inherent in executive power and is intimately
related to the other executive functions. More
important, this mandate is self-executory by virtue of
its being inherently executive in nature. The import of
this characteristic is that the manner of the President's
execution of the law, even if not expressly granted by
the law, is justified by necessity and limited only by
law, since the President must "take necessary and
proper steps to carry into execution the law."
21. The presidential role in foreign affairs is dominant
and the President is traditionally accorded a wider
degree of discretion in the conduct of foreign affairs.
The regularity, nay, validity of his actions are
adjudged under less stringent standards, lest their
judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of
confidence, national embarrassment and a plethora of
other problems with equally undesirable
consequences. (see Vinuya v. Romulo)
Constitution prohibits the entry of foreign
military bases, troops or facilities, except by
way of a treaty concurred in by the Senate
22. Despite the President's roles as defender of the
State and sole authority in foreign relations, the 1987
Constitution expressly limits his ability in instances
when it involves the entry of foreign military bases,
troops or facilities.
23. The initial limitation is found in Art VII, Section
21 of the provisions on the Executive
Department: "No treaty or international agreement
shall be valid and effective unless concurred in by at
least two-thirds of all the Members of the Senate."
24. The specific limitation is given by Art XVIII,
Section 25 under the Transitory Provisions,
which reads as follows:
SECTION 25. After the expiration in 1991 of the
Agreement between the Republic of the Philippines
and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the
votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the
other contracting State.
25. It is quite plain that the Transitory Provisions of
the 1987 Constitution intended to add to the basic
requirements of a treaty under Section 21 of Article
VII. This means that both provisions must be read as
additional limitations to the President's overarching
executive function in matters of defense and foreign
14
relations.
Constitutional restriction under Sec 25, Art
XVIII pertains to the ENTRY of the bases,
troops, or facilities, and not to the activities to
be done AFTER entry is authorized
26. Under the principles of constitutional
construction, of paramount consideration is the plain
meaning of the language expressed in the
Constitution, or the verba legis rule. Thus, if taken
literally, the phrase "shall not be allowed in the
Philippines" plainly refers to the entry of bases,
troops, or facilities in the country.
27. It is evident that the constitutional restriction
refers solely to the initial entry of the foreign military
bases, troops, or facilities. Once entry is authorized,
the subsequent acts are thereafter subject only to the
limitations provided by the rest of the Constitution and
Philippine law, and not to the Section 25 requirement
of validity through a treaty.
28. The Visiting Forces Agreement (VFA) has already
allowed the entry of troops in the Philippines. The VFA
provides that visiting US forces may sojourn in
Philippine territory for purposes other than military,
i.e., joint training exercises like the Balikatan (see Lim
v. Executive Secretary)
Treaties vs. Executive Agreement
29. Treaties are formal documents which
require ratification with the approval of two-thirds of
the Senate.Executive agreements become binding
through executive action without the need of a vote
by the Senate or by Congress. (see Commissioner of
Customs v. Eastern Sea Trading)
30. Executive agreements must remain traceable to
an express or implied authorization under the
Constitution, statutes, or treaties. The absence of
these precedents puts the validity and effectivity of
executive agreements under serious question for the
main function of the Executive is to enforce the
Constitution and the laws enacted by the Legislature,
not to defeat or interfere in the performance of these
rules. In turn, executive agreements cannot create
new international obligations that are not expressly
allowed or reasonably implied in the law they purport
to implement.
31. Treaties are, by their very nature, considered
superior to executive agreements. Treaties are
products of the acts of the Executive and the Senate
unlike executive agreements, which are solely
executive actions. Because of legislative participation
through the Senate, a treaty is regarded as being on
the same level as a statute. If there is an
irreconcilable conflict, a later law or treaty takes
precedence over one that is prior. An executive
agreement is treated differently. Executive
agreements that are inconsistent with either a law or
a treaty are considered ineffective. Both types of
international agreement are nevertheless subject to
the supremacy of the Constitution.
Constitutional restrictions on the power of the
President to conclude international agreements
32. Although the Chief Executive wields the exclusive
authority to conduct our foreign relations, this power
must still be exercised within the context and the
parameters set by the Constitution, as well as by
existing domestic and international laws. There are
constitutional provisions that restrict or limit the
President's prerogative in concluding international
agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within
Philippine territory
b. The fixing of tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or
imposts, which must be pursuant to the authority
granted by Congress
c. The grant of any tax exemption, which must be
pursuant to a law concurred in by a majority of all the
Members of Congress
d. The contracting or guaranteeing, on behalf of the
Philippines, of foreign loans that must be previously
concurred in by the Monetary Board
e. The authorization of the presence of foreign military
bases, troops, or facilities in the country must be in
the form of a treaty duly concurred in by the Senate.
f. For agreements that do not fall under paragraph 5,
the concurrence of the Senate is required, should the
form of the government chosen be a treaty.
15
Power of the President to enter into binding
executive agreements without Senate
concurrence
33. In Commissioner of Customs v. Eastern Sea
Trading , executive agreements are defined as
"international agreements embodying adjustments of
detail carrying out well-established national policies
and traditions and those involving arrangements of a
more or less temporary nature.” In Bayan Muna v.
Romulo, this Court further clarified that executive
agreements can cover a wide array of subjects that
have various scopes and purposes.
34. Executive agreements may dispense with the
requirement of Senate concurrence because they
merely involve arrangements on the implementation
of existing policies, rules, laws, or agreements. They
are concluded (1) to adjust the details of a treaty; (2)
pursuant to or upon confirmation by an act of the
Legislature; or (3) in the exercise of the President's
independent powers under the Constitution. The
raison d'etre of executive agreements hinges on prior
constitutional or legislative authorizations.
35. The term "international agreements" as
contemplated in Section 21, Article VII, does not
include executive agreements.
President had the choice to enter into EDCA by
way of an executive agreement or a treaty
36. There are no hard and fast rules on the propriety
of entering, on a given subject, into a treaty or an
executive agreement as an instrument of international
relations. The primary consideration in the choice of
the form of agreement is the parties' intent and desire
to craft an international agreement in the form they so
wish to further their respective interests. Verily, the
matter of form takes a back seat when it comes to
effectiveness and binding effect of the enforcement of
a treaty an or executive agreement, as the parties in
either international agreement each labor under the
pacta sunt servanda principle. (see Bayan Muna v.
Romulo)
37. In the exercise of its power of judicial review, the
Court does not look into whether an international
agreement should be in the form of a treaty or an
executive agreement, save in cases in which the
Constitution or a statute requires otherwise. Rather, in
view of the vast constitutional powers and
prerogatives granted to the President in the field of
foreign affairs, the task of the Court is to determine
whether the international agreement is consistent with
the applicable limitations.
Executive agreements may cover the matter of
foreign military forces if it merely involves
detail adjustments
38. Section 25, Article XVIII of the Constitution
contains stringent requirements that must be fulfilled
by the international agreement allowing the presence
of foreign military bases, troops, or facilities in the
Philippines: (a) the agreement must be in the form of
a treaty, and (b) it must be duly concurred in by the
Senate.
39. If the agreement is not covered by the above
situation, then the President may choose the form of
the agreement (i.e., either an executive agreement or
a treaty), provided that the agreement dealing with
foreign military bases, troops, or facilities is not the
principal agreement that first allows their entry or
presence in the Philippines.
40. The executive agreement must not go beyond the
parameters, limitations, and standards set by the law
and/or treaty that the former purports to implement;
and must not unduly expand the international
obligation expressly mentioned or necessarily implied
in the law or treaty.
41. The executive agreement must be consistent with
the Constitution, as well as with existing laws and
treaties.
EDCA as a valid executive agreement
42. In light of the President's choice to enter into
EDCA in the form of an executive agreement,
respondents (Executive branch) carry the burden of
proving that it is a mere implementation of existing
laws and treaties concurred in by the Senate. EDCA
must be carefully dissected to ascertain if it remains
within the legal parameters of a valid executive
agreement.
(a) EDCA is consistent with the content,
purpose, and framework of the MDT and the
VFA
43. An executive agreement may not be used to
16
amend a treaty. Accordingly, the EDCA shall be
scrutinized by studying "the framework of the treaty
antecedents to which the Philippines bound itself" i.e.,
the Military Defense Treaty (MDT) and the Visiting
Forces Agreement (VFA).
44. It is pointed in the dissenting opinion that the
VFA contemplates the entry of troops for training
exercises, whereas EDCA allows the use of territory
for launching military and paramilitary operations
conducted in other states. Jurisprudence however has
established that combat-related activities, as opposed
to actual combat, were allowed under the MDT and
VFA. Hence, even if EDCA was borne of military
necessity, it cannot be said to have strayed from the
intent of the VFA since EDCA's combat-related
components are allowed under the treaty.
45. Moreover, both the VFA and EDCA are silent on
what these activities actually are. Both the VFA and
EDCA deal with the presence of U.S. forces within the
Philippines, but make no mention of being platforms
for activity beyond Philippine territory. While it may be
that, as applied, military operatjons under either the
VFA or EDCA would be carried out in the future, the
scope of judicial review does not cover potential
breaches of discretion but only actual occurrences or
blatantly illegal provisions. Hence,we cannot invalidate
EDCA on the basis of the potentially abusive use of its
provisions.
46. It was also averred that EDCA supposedly
introduces a new concept not contemplated in the VFA
or the MDT, i.e, Agreed Locations, Contractors, Pre-
positioning, and Operational Control. It must be
clarified that the terms and details used by an
implementing agreement need not be found in the
mother treaty. They must be sourced from the
authority derived from the treaty, but are not
necessarily expressed word-for-word in the mother
treaty.
(b) Admission of U.S. military and civilian
personnel into Philippine territory is already
allowed under the VFA
47. By virtue of Articles I and III of the VFA, the
Philippines already allows U.S. military and civilian
personnel to be "temporarily in the Philippines," so
long as their presence is "in connection with activities
approved by the Philippine Government." The VFA
does not limit their temporary presence to specific
locations.
48. The admission and presence of U.S. military and
civilian personnel in Philippine territory are already
allowed under the VFA, the treaty supposedly being
implemented by EDCA. What EDCA has effectively
done, in fact, is merely provide the mechanism to
identify the locations in which U.S. personnel may
perform allowed activities pursuant to the VFA. As the
implementing agreement, it regulates and limits the
presence of U.S. personnel in the country.
(c) EDCA does not guaratee admission of U.S.
contractors into Philippine territory
49. EDCA recognizes the presence in the country of
three distinct classes of individuals who will be
conducting different types of activities within the
Agreed Locations: (1) U.S. military personnel; (2) U.S.
civilian personnel; and (3) U.S. contractors.
50. Of the three aforementioned classes of individuals
who will be conducting certain activities within the
Agreed Locations, we note that only U.S. contractors
are not explicitly mentioned in the VFA. This does not
mean, though, that the recognition of their presence
under EDCA is ipso facto an amendment of the treaty,
and that there must be Senate concurrence they
before are allowed to enter the country.
51. Nowhere in EDCA are U.S. contractors guaranteed
immediate admission into the Philippines. Articles III
and IV, in fact, merely grant them the right of access
to, and the authority to conduct certain activities
within the Agreed Locations. Since Article II(3) of
EDCA specifically leaves out U.S. contractors from the
coverage of the VFA, they shall not be granted the
same entry accommodations and privileges as those
enjoyed by U.S. military and civilian personnel under
the VFA.
52. Consequently, it is neither mandatory nor
obligatory on the part of the Philippines to admit U.S.
contractors into the country. We emphasize that the
admission of aliens into Philippine territory is "a matter
of pure permission and simple tolerance which creates
no obligation on the part of the government to permit
them to stay." Unlike U.S. personnel who are accorded
entry accommodations, U.S. contractors are subject to
Philippine immigration laws. The latter must comply
with our visa and passport regulations and prove that
17
they are not subject to exclusion under any provision
of Philippine immigration laws. The President may also
deny them entry pursuant to his absolute and
unqualified power to prohibit or prevent the admission
of aliens whose presence in the country would be
inimical to public interest.
53. The President may exercise the plenary power to
expel or deport U.S. contractors as may be
necessitated by national security, public safety, public
health, public morals, and national interest. They may
also be deported if they are found to be illegal or
undesirable aliens pursuant to the Philippine
Immigration Act267 and the Data Privacy Act. In
contrast, Article 111(5) of the VFA requires a request
for removal from the Philippine government before a
member of the U.S. personnel may be "dispos[ed] xx
x outside of the Philippines.
(d) Authorized activities of U.S. military and
civilian personnel within Philippine territory are
in furtherance of the MDT and the VFA
55. Manifest in the provisions of the MDT and VFA
are the abundance of references to the creation of
further "implementing arrangements" including the
identification of "activities to be approved by the
Philippine Government."
56. The Court has already settled in Lim v. Executive
Secretary that the phrase "activities approved by the
Philippine Government" under Article I of the VFA was
intended to be ambiguous in order to afford the
parties flexibility to adjust the details of the purpose of
the visit of U.S. personnel. In this manner, visiting US
forces may sojourn in Philippine territory for purposes
other than military.
57. The "activities" referred to in the VFA treaty are
meant to be specified and identified in further
agreements. EDCA is one such agreement. EDCA
seeks to be an instrument that enumerates the
Philippine-approved activities of U.S. personnel
referred to in the VFA.
58. After a thorough examination of the content,
purpose, and framework of the MDT and the VFA, we
find that EDCA has remained within the parameters
set in these two treaties. Just like the Terms of
Reference mentioned inLim, mere adjustments in
detail to implement the MDT and the VFA can be in
the form of executive agreements.
(e) EDCA does not authorize permanent
presence of US forces and bases
59. Petitioners assert that the VFA contemplated
mere temporary visits from U.S. forces, whereas EDCA
allows an unlimited period for U.S. forces to stay in
the Philippines. The provisions of EDCA directly
contradict this argument by limiting itself to 10 years
of effectivity. Although this term is automatically
renewed, the process for terminating the agreement is
unilateral and the right to do so automatically accrues
at the end of the 10 year period. Clearly, this method
does not create a permanent obligation. EDCA merely
follows the practice of other states in not specifying a
non-extendible maximum term. This practice,
however, does not automatically grant a badge of
permanency to its terms.
60. Moreover, EDCA merely grants American troops,
ships and planes rotational access to facilities of the
Armed Forces of the Philippines - but not permanent
bases which are prohibited under the Philippine
Constitution.
61. It could not have been by chance that the VFA
does not include a maximum time limit with respect to
the presence of U.S. personnel in the country. We
construe this lack of specificity as a deliberate effort
on the part of the Philippine and the U.S. governments
to leave out this aspect and reserve it for the
"adjustment in detail" stage of the
implementation of the treaty.
(f) Authorized activities performed by US.
Contractors within Philippine territory are
subject to Philippines laws and must be
consistent with the MDT and the VFA
62. Petitioners also raise concerns about the U.S.
government's purported practice of hiring private
security contractors in other countries. They claim that
these contractors have been implicated in incidents or
scandals in other parts of the globe involving
rendition, torture and other human rights violations.
They also assert that these contractors employ
paramilitary forces in other countries where they are
operating.
63. EDCA requires that all activities within Philippine
territory be in accordance with Philippine law. This
means that certain privileges denied to aliens are
18
likewise denied to foreign military contractors. Hence,
even when U.S. contractors are granted access to the
Agreed Locations, all their activities must be
consistent with Philippine laws and regulations and
pursuant to the MDT and the VFA.
64. The concerns raised by petitioners do not give the
Court enough justification to strike down EDCA. The
courts cannot take judicial notice of claims aired in
news reports for the simple reason that facts must be
established in accordance with the rules of evidence.
Courts also cannot move one step ahead and
speculate that the alleged illegal activities of these
contractors in other countries would likewise take
place in the Philippines. Making sure that U.S.
contractors comply with Philippine laws is a function of
law enforcement. EDCA does not stand in the way of
law enforcement.
65. To emphasize, U.S. contractors are explicitly
excluded from the coverage of the VFA. As visiting
aliens, their entry, presence, and activities are subject
to all laws and treaties applicable within the Philippine
territory. Our penal laws, labor laws, and immigrations
laws apply to them and therefore limit their activities
here.
(g) EDCA is not a disguised version of the
Military Bases Agreement (MBA)
66. Petitioners Saguisag et al. claim that EDCA
permits the establishment of U.S. military bases
through the "euphemistically" termed "Agreed
Locations. " Alluding to the definition of this term in
Article II( 4) of EDCA, they point out that these
locations are actually military bases, as the definition
refers to facilities and areas to which U.S. military
forces have access for a variety of purposes. Hence,
EDCA is but a disguised version of the 1947 Military
Bases Agreement (MBA).
67. Under the MBA, the U.S. had the right to
construct, operate, maintain, utilize, occupy, garrison,
and control the bases. The so-called parallel provisions
of EDCA allow only operational control over the
Agreed Locations specifically for construction
activities. They do not allow the overarching power to
operate, maintain, utilize, occupy, garrison, and
control a base with full discretion.
68. Under the MBA, the U.S. retains ownership if it
paid for the facility. Under EDCA, an immovable is
owned by the Philippines, even if built completely on
the back of U.S. funding. This is consistent with the
constitutional prohibition on foreign land ownership.
69. Under the MBA, the U.S. retained all rights of
jurisdiction in and over Philippine territory occupied by
American bases. In contrast, under EDCA, the U.S.
does not enjoy any such right over any part of the
Philippines in which its forces or equipment may be
found.
70. Under the MBA, the U.S. and the Philippines were
visibly not on equal footing when it came to deciding
whether to expand or to increase the number of
bases, as the Philippines may be compelled to
negotiate with the U.S. the moment the latter
requested an expansion of the existing bases or to
acquire additional bases. In EDCA, U.S. access is
purely at the invitation of the Philippines.
71. Under the MBA, the U.S. had complete control
over its military bases, and the U.S. could effectively
prevent Philippine authorities from entering those
bases. In EDCA, the Philippines is guaranteed access
over the entire area of the Agreed Locations.
72. Under the MBA, the U.S. was given the authority
to use Philippine territory for additional staging areas,
bombing and gunnery ranges. No such right is given
under EDCA.
73. Under the MBA, the U.S. was given the right,
power, and authority to control and prohibit the
movement and operation of all types of vehicles within
the vicinity of the bases. The U.S. does not have any
right, power, or authority to do so under EDCA.
74. Under the MBA, the U.S. had the right to improve
and deepen the harbors, channels, entrances, and
anchorages; and to construct or maintain necessary
roads and bridges that would afford it access to its
military bases. Under EDCA, the U.S. is merely given
temporary access to land and facilities (including
roads, ports, and airfields).
75. Under the MBA, the U.S. was granted the
automatic right to use any and all public utilities,
services and facilities, airfields, ports, harbors, roads,
highways, railroads, bridges, viaducts, canals, lakes,
rivers, and streams in the Philippines in the same
manner that Philippine military forces enjoyed that
right. No such arrangement appears in EDCA. In fact,
19
it merely extends to U.S. forces temporary access to
public land and facilities when requested.
76. Under EDCA, the U.S. no longer has the right,
power, and authority to construct, install, maintain,
and employ any type of facility, weapon, substance,
device, vessel or vehicle, or system unlike in the MBA.
EDCA merely grants the U.S., through bilateral
security mechanisms, the authority to undertake
construction, alteration, or improvements on the
Philippine-owned Agreed Locations.
77. EDCA does not allow the U.S. to acquire, by
condemnation or expropriation proceedings, real
property belonging to any private person. The old
MBA gave this right to the U.S.
78. EDCA does not allow the U.S. to unilaterally bring
into the country non-Philippine nationals who are
under its employ, together with their families, in
connection with the construction, maintenance, or
operation of the bases. EDCA strictly adheres to the
limits under the VFA.
79. EDCA does not allow the U.S. to exercise
jurisdiction over any offense committed by any person
within the Agreed Locations, unlike in the former MBA.
80. EDCA does not allow the U.S. to operate military
post exchange (PX) facilities, which is free of customs
duties and taxes, unlike what the expired MBA
expressly allowed.
Agreed Locations under EDCA do not fall under
the concept of "foreign military bases and
facilities" which requires Senate concurrence
under Section 25, Art XVIII, 1987 Constitution
81. Section 25, Article XVIII of the 1987
Constitution is explicit that foreign military bases,
troops, or facilities shall not be allowed in the
Philippines, except under a treaty duly concurred in by
the Senate. Notably, Section 25 does not define what
is meant by a "foreign military facility or base." At the
time of its crafting of the Constitution, the 1986
Constitutional Commission had a clear idea of what
exactly it was restricting. Its point of reference was
clearly areas covered by the 1947 MBA as amended.
In 1991, the Philippine Senate rejected the successor
treaty of the 1947 MBA that would have allowed the
continuation of U.S. bases in the Philippines.
82. The latest agreement is EDCA, which proposes a
novel concept termed "Agreed Locations." The bone of
contention is whether the Agreed Locations are, from
a legal perspective, foreign military facilities or bases.
This legal framework triggers Section 25, Article XVIII,
and makes Senate concurrence a sine qua non.
(a) First standard: independence from foreign
control
83. The heart of the constitutional restriction on
foreign military facilities and bases is the assertion of
independence from the U.S. and other foreign powers,
as independence is exhibited by the degree of foreign
control exerted over these areas. The essence of that
independence is self-governance and self-control.
84. The Agreed Locations are contained within a
property for public use, be it within a government
military camp or property that belongs to the
Philippines. EDCA explicitly provides that ownership of
the Agreed Locations remains with the Philippine
movement. What U.S. personnel have a right to,
pending mutual agreement, is access to and use of
these locations. EDCA, in respect of its provisions on
Agreed Locations, is essentially a contract of use and
access. The activities carried out within these locations
are subject to agreement as authorized by the
Philippine movement.
85. Under Article VI(3) of EDCA, U.S. forces are
authorized to act as necessary for "operational control
and defense." The legal concept of operational
control involves authority over personnel in a
commander-subordinate relationship and does not
include control over the Agreed Locations in this
particular case. Though not necessarily stated in EDCA
provisions, this interpretation is readily implied by the
reference to the taking of "appropriate measures to
protect United States forces and United States
contractors.
86. Petitioners mistakenly equate "operational
control" with "effective command and
control." Operational controlis the delegable aspect of
combatant command, while command and control is
the overall power and responsibility exercised by the
commander with reference to a mission. Operational
control is a narrower power and must be given, while
command and control is plenary and vested in a
commander. Operational control does not include the
20
planning, programming, budgeting, and execution
process input; the assignment of subordinate
commanders; the building of relationships with
Department of Defense agencies; or the directive
authority for logistics, whereas these factors are
included in the concept of command and control.
87. EDCA indeed contains a specific provision that
gives to the U.S. operational control within the Agreed
Locations during construction activities. Despite this
grant of operational control to the U.S., it must be
emphasized that the grant is only for construction
activities. The narrow and limited instance wherein the
U.S. is given operational control within an Agreed
Location cannot be equated with foreign military
control.
88. Limited control does not violate the Constitution.
The fear of the commissioners was total control, to
the point that the foreign military forces might dictate
the terms of their acts within the Philippines. More
important, limited control does not mean an
abdication or derogation of Philippine sovereignty and
legal jurisdiction over the Agreed Locations. It is more
akin to the extension of diplomatic courtesies and
rights to diplomatic agents, which is a waiver of
control on a limited scale and subject to the terms of
the treaty.
(b) Second standard: Philippine sovereignty
and applicable law
89. From the text of EDCA itself, Agreed Locations
are territories of the Philippines that the U.S. forces
are allowed to access and use. By withholding
ownership of these areas and retaining unrestricted
access to them, the government asserts sovereignty
over its territory. That sovereignty exists so long as
the Filipino people exist.
90. The Philippines retains primary responsibility for
security with respect to the Agreed Locations.
Hence,Philippine law remains in force therein, and it
cannot be said that jurisdiction has been transferred
to the U.S.
(c) Third standard: Must respect national
security and territorial integrity
91. Any armed attack by forces of a third state
against an Agreed Location can only be legitimate
under international humanitarian law if it is against a
bona fide U.S. military base, facility, or installation
that directly contributes to the military effort of the
U.S. Moreover, the third state's forces must take all
measures to ensure that they have complied with the
principle of distinction (between combatants and non-
combatants).
92. There is, then, ample legal protection for the
Philippines under international law that would ensure
its territorial integrity and national security in the
event an Agreed Location is subjected to attack. As
EDCA stands, it does not create the situation so feared
by petitioners - one in which the Philippines, while not
participating in an armed conflict, would be
legitimately targeted by an enemy of the U.S
93. Concerns on national security problems that arise
from foreign military equipment being present in the
Philippines must likewise be contextualized. Most
significantly, the VFA already authorizes the presence
of U.S. military equipment in the country.
Public franchise not required for
telecommunication system intended solely for
the use of the U.S.
94. In reference to the issue on telecommunications,
suffice it to say that the initial impression of the
facility adverted to does appear to be one of those
that require a public franchise by way of congressional
action under Section 11, Article XII of the
Constitution. As respondents submit, however, the
system referred to in the agreement does not provide
telecommunications services to the public for
compensation. It is clear from Article VIl(2) of EDCA
that the telecommunication system is solely for the
use of the U.S. and not the public in general, and that
this system will not interfere with that which local
operators use. Consequently, a public franchise is no
longer necessary.
Prohibition on introduction of nuclear weapons
into Philippine territory is respected
95. The charge that EDCA allows nuclear weapons
within Philippine territory is entirely speculative. It is
noteworthy that the agreement in fact specifies that
the prepositioned materiel shall not include nuclear
weapons. Petitioners argue that only prepositioned
nuclear weapons are prohibited by EDCA, and that,
therefore, the U.S. would insidiously bring nuclear
weapons to Philippine territory. The general
21
prohibition on nuclear weapons, whether
prepositioned or not, is already expressed in the 1987
Constitution. It would be unnecessary or superfluous
to include all prohibitions already in the Constitution or
in the law through a document like EDCA.
Assumption of tax liability by the Philippine
government does not create a tax exemption
96. petitioners allege that EDCA creates a tax
exemption, which under the law must originate from
Congress. EDCA simply states that the taxes on the
use of water, electricity, and public utilities are for the
account of the Philippine Government. This provision
creates a situation in which a contracting party
assumes the tax liability of the other. In National
Power Corporation v. Province of Quezon, the court
concluded that an enforceable assumption of tax
liability requires the party assuming the liability to
have actual interest in the property taxed. This rule
applies to EDCA, since the Philippine Government
stands to benefit not only from the structures to be
built thereon or improved, but also from the joint
training with U.S. forces, disaster preparation, and the
preferential use of Philippine suppliers. Hence, the
provision on the assumption of tax liability does not
constitute a tax exemption as petitioners have posited.
6.Case Summary
Pamatong vs Comelec (2004)
G.R. No. 161872 | 2004-04-13
Subject: There is no constitutional right to run for or
hold public office; Policy provisions under the
Constitution are generally not self-executing and not
give rise to judicially enforceable rights; "Equal
access" provision requires implementing legislation to
make it operative; “Nuisance candidate” prohibition is
a valid limitation on the privilege to seek elective
office; Prohibition against nuisance candidates;
Question of whether a candidate is a nuisance
candidate or not is both legal and factual; Validity of
the form for the certificate of candidacy
Facts:
Rev. Elly Velez Pamatong (petitioner) filed his
Certificate of Candidacy for President for the 2004
elections. The Commission on Elections (COMELEC)
refused to give due course to petitioner's Certificate of
Candidacy in its Resolution No. 6558 . The decision,
however, was not unanimous since Commissioners
Tancangco and Sadain voted to include petitioner as
they believed he had parties or movements to back up
his candidacy.
The COMELEC denied petitioner's Motion for
Reconsideration. The COMELEC declared petitioner
and thirty-five (35) others nuisance candidates who
could not wage a nationwide campaign and/or are not
nominated by a political party or are not supported by
a registered political party with a national
constituency.
Petitioner filed the present Petition For Writ of
Certiorari. Petitioner alleged that COMELEC resolutions
were rendered in violation of his right to "equal access
to opportunities for public service" under Section 26,
Article II of the 1987 Constitution by limiting the
number of qualified candidates only to those who can
afford to wage a nationwide campaign and/or are
nominated by political parties.
Petitioner likewise attacks the validity of the form for
the Certificate of Candidacy prepared by the
COMELEC. Petitioner claims that the form does not
provide clear and reasonable guidelines for
determining the qualifications of candidates since it
does not ask for the candidate's bio-data and his
program of government.
Held:
There is no constitutional right to run for or
hold public office
1. Implicit in the petitioner's invocation of the
constitutional provision ensuring "equal access to
opportunities for public office" is the claim that there
is a constitutional right to run for or hold public office
and, particularly in his case, to seek the presidency.
There is none. What is recognized is merely a privilege
subject to limitations imposed by law. Section 26,
Article II of the Constitution neither bestows such a
right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain
language of the provision which suggests such a
thrust or justifies an interpretation of the sort.
Policy provisions under the Constitution are
generally not self-executing and not give rise to
judicially enforceable rights
2. The "equal access" provision is a subsumed part of
22
Article II of the Constitution, entitled "Declaration of
Principles and State Policies." The provisions under the
Article are generally considered not self-executing,and
there is no plausible reason for according a different
treatment to the "equal access" provision. Like the
rest of the policies enumerated in Article II,
the provision does not contain any judicially
enforceable constitutional right but merely specifies a
guideline for legislative or executive action.
The disregard of the provision does not give rise to
any cause of action before the courts.
3. The original wording of the present Section 26,
Article II had read, "The State shall broaden
opportunities to public office and prohibit public
dynasties." Commissioner (now Chief Justice) Hilario
Davide, Jr. successfully brought forth an amendment
that changed the word "broaden" to the phrase
"ensure equal access," and the substitution of the
word "office" to "service." The provision is not
intended to compel the State to enact positive
measures that would accommodate as many people
as possible into public office. The approval of the
"Davide amendment" indicates the design of the
framers to cast the provision as simply enunciatory of
a desired policy objective and not reflective of the
imposition of a clear State burden.
"Equal access" provision requires implementing
legislation to make it operative
4. It is difficult to interpret the clause as operative in
the absence of legislation since its effective means
and reach are not properly defined. Broadly written,
the myriad of claims that can be subsumed under this
rubric appear to be entirely open-ended. Words and
phrases such as "equal access," "opportunities," and
"public service" are susceptible to countless
interpretations owing to their inherent impreciseness.
Certainly, it was not the intention of the framers to
inflict on the people an operative but amorphous
foundation from which innately unenforceable rights
may be sourced.
“Nuisance candidate” prohibition is a valid
limitation on the privilege to seek elective
office
5. The privilege of equal access to opportunities to
public office may be subjected to limitations. Some
valid limitations specifically on the privilege to seek
elective office are found in the provisions of
the Omnibus Election Code on "Nuisance Candidates"
and COMELEC Resolution No. 6452 dated December
10, 2002 outlining the instances wherein the
COMELEC may motu proprio refuse to give due course
to or cancel a Certificate of Candidacy.
6. As long as the limitations apply to everybody
equally without discrimination, however, the equal
access clause is not violated. Equality is not sacrificed
as long as the burdens engendered by the limitations
are meant to be borne by any one who is minded to
file a certificate of candidacy. In the case at bar, there
is no showing that any person is exempt from the
limitations or the burdens which they create.
7. Petitioner does not challenge the constitutionality
or validity of Section 69 of the Omnibus Election Code
and COMELEC Resolution No. 6452 . Thus, their
presumed validity stands and has to be accorded due
weight.
Prohibition against nuisance candidates
8. The rationale behind the prohibition against
nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention
to run for office is easy to divine. The State has a
compelling interest to ensure that its electoral
exercises are rational, objective, and orderly. Towards
this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the
greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention
the increased allocation of time and resources in
preparation for the election.
9. The preparation of ballots is but one aspect that
would be affected by allowance of "nuisance
candidates" to run in the elections. Our election laws
provide various entitlements for candidates for public
office, such as watchers in every polling place,
watchers in the board of canvassers, or even the
receipt of electoral contributions. Moreover, there are
election rules and regulations the formulations of
which are dependent on the number of candidates in
a given election.
10. Owing to the superior interest in ensuring a
credible and orderly election, the State could exclude
nuisance candidates and need not indulge in, as the
song goes, "their trips to the moon on gossamer
wings."
23

11. The COMELEC is mandated by the Constitution
with the administration of elections and endowed with
considerable latitude in adopting means and methods
that will ensure the promotion of free, orderly and
honest elections. Moreover, the Constitution
guarantees that only bona fide candidates for public
office shall be free from any form of harassment and
discrimination. The determination of bona fide
candidates is governed by the statutes and the
concept is satisfactorily defined in the Omnibus
Election Code.
Question of whether a candidate is a nuisance
candidate or not is both legal and factual
12. The assailed resolutions of the COMELEC do not
direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate.
This precludes the Court from reviewing at this
instance whether the COMELEC committed grave
abuse of discretion in disqualifying petitioner.
13. Petitioner has submitted to the Court mere
photocopies of various documents purportedly
evincing his credentials as an eligible candidate for the
presidency. Yet the Supreme Court, not being a trier
of facts, can not properly pass upon the reproductions
as evidence at this level.
14. The question of whether a candidate is a
nuisance candidate or not is both legal and
factual. The basis of the factual determination is not
before this Court. Thus, the remand of this case for
the reception of further evidence is in order.
Validity of the form for the certificate of
candidacy
15. As to petitioner's attacks on the validity of the
form for the certificate of candidacy, suffice it to say
that theform strictly complies with Section 74 of the
Omnibus Election Code. This provision specifically
enumerates what a certificate of candidacy should
contain, with the required information tending to show
that the candidate possesses the minimum
qualifications for the position aspired for as
established by the Constitution and other election
laws.
7. Case Summary
Pelaez vs. Auditor General (1965)
G.R. No. L-23825 | 1965-12-24
Subject: Denial of the presidential authority to create
a new barrio, implies a negation of the bigger power
to create municipalities; Authority to create municipal
corporations is essentially legislative in nature; Section
68 of the Revised Administrative Code, which vests on
the President the power to create municipalities, is an
an undue delegation of legislative power; “Public
welfare” as a sufficient standard for delegation of
legislative authority; President exercises power of
supervision (not control) over local governments;
Issues on proper party and prematurity of action
Facts:
In 1964, the President of the Philippines, purporting to
act pursuant to Section 68 of the Revised
Administrative Code, issued Executive Orders Nos. 93
to 121, 124 and 126 to 129, creating thirty-three (33)
municipalities.
Petitioner Emmanuel Pelaez, as Vice-President of the
Philippines and as taxpayer, instituted the present
special civil action for prohibition against the Auditor
General to restrain him from passing in audit any
expenditure of public funds in implementation of said
executive orders and/or any disbursement by said
municipalities.
Petitioner alleges that said executive orders are null
and void because Section 68 of the Revised
Administrative Code has been impliedly repealed by
Republic Act 2370 and that Section 68 constitutes an
undue delegation of legislative power.
Subsequently, the mayors of several municipalities
adversely affected by the executive orders — which
took away from the former the barrios composing the
new political subdivision - intervened in the case.
Moreover, Attorneys Enrique M. Fernando and Emma
Quisumbing-Fernando were allowed to and did appear
as amici curiae.
Held:
Denial of the presidential authority to create a
new barrio, implies a negation of the bigger
power to create municipalities
1. Since January 1, 1960, when Republic Act No.
2370 became effective, barrios may "not be created or
24
their boundaries altered nor their names changed"
except (a) by Act of Congress or (b) of the
corresponding provincial board "upon petition of a
majority of the voters in the areas affected" and the
"recommendation of the council of the municipality or
municipalities in which the proposed barrio is
situated."
2. Petitioner argues, accordingly: "If the President,
under this new law, cannot even create a barrio, can
he create a municipality which is composed of several
barrios, since barrios are units of municipalities?" The
Auditor General reasoned that the authority exists
under the theory that a new municipality can be
created without creating new barrios, such as, by
placing old barrios under the jurisdiction of the new
municipality. However, the court agreed with the
petitioner that the statutory denial of the presidential
authority to create a new barrio implies a negation of
the bigger power to create municipalities, each of
which consists of several barrios. Founded upon logic
and experience, it cannot be offset except by a clear
manifestation of the intent of Congress to the
contrary, and no such manifestation, subsequent to
the passage of Republic Act No. 2370, has been
shown.
Authority to create municipal corporations is
essentially legislative in nature
3. The Auditor General alleges that the power of the
President to create municipalities under Section 68 of
the Revised Administrative Code does not amount to
an undue delegation of legislative power. The Auditor
General cites Municipality of Cardona vs. Municipality
of Binañgonan. However, said case is inapplicable
since it involved, not the creation of a new
municipality, but a mere transfer of territory - from an
already existing municipality (Cardona) to another
municipality (Binañgonan), likewise, existing at the
time of and prior to said transfer - in consequence of
the fixing and definition, of the common boundaries of
two municipalities.
4. Whereas the power to fix such common boundary,
in order to avoid or settle conflicts of jurisdiction
between adjoining municipalities, may partake of
an administrative nature - involving, as it does, the
adoption of means and ways to carry into effect the
law creating said municipalities - the authority to
create municipal corporations is essentially legislative
in nature.
It is "strictly a legislative function" or "solely and
exclusively the exercise of legislative power" As the
Supreme Court of Washington has put it, "municipal
corporations are purely the creatures of statutes."
Section 68 of the Revised Administrative Code,
which vests on the President the power to
create municipalities, is an undue delegation of
legislative power
5. Although Congress may delegate to another
branch of the government the power to fill in the
details in the execution, enforcement or administration
of a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law:
(a) be complete in itself - it must set forth therein the
policy to be executed, carried out or implemented by
the delegate; and
(b) fix a standard - the limits of which are sufficiently
determinate or determinable - to which the delegate
must conform in the performance of his functions.
6. Indeed, without a statutory declaration of policy,
the delegate would, in effect, make or formulate such
policy, which is the essence of every law; and, without
the aforementioned standard, there would be no
means to determine, with reasonable certainty,
whether the delegate has acted within or beyond the
scope of his authority.
7. Section 68 of the Revised Administrative Code does
not meet these well settled requirements for a valid
delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy
to be carried out or implemented by the President.
Neither does it give a standard sufficiently precise to
avoid the evil effects above referred to.
“Public welfare” as a sufficient standard for
delegation of legislative authority
8. Under the last clause of the first sentence of
Section 68, the President ". . . may change the seat of
the government within any subdivision to such place
therein as the public welfare may require."
9. From the language of this clause, the phrase "as
the public welfare may require" qualifies, not the
clauses preceding but only the place to which the seat
of the government may be transferred.
25

10. Even if we assumed that the phrase "as the public
welfare may require" in said Section 68 qualifies all
other clauses thereof, the same will not save the
provision. The Court has upheld "public welfare" and
"public interest" as sufficient standards for a valid
delegation of the authority to execute the law (see
Calalang vs. William and People vs. Rosenthal) . But,
the doctrine laid down in these cases must be
construed in relation to the specific facts and issues
involved therein, outside of which they do not
constitute precedents and have no binding effect.
Unlike in the cases of Calalang and Rosenthal, the
creation of municipalities is not an administrative
function, but one which is essentially and eminently
legislative in character. The question whether or not
"public interest" demands the exercise of such power
is not one of fact. It is "purely a legislative question"
or a political question.
11. The term "public welfare" is so broad as to vest in
the President a discretion that is "virtually unfettered",
and, consequently, tantamount to a delegation of
legislative power. In fact, if the validity of the
delegation of powers made in Section 68 were upheld,
there would no longer be any legal impediment to a
statutory grant of authority to the President to do
anything which, in his opinion, may be required by
public welfare or public interest. Such grant of
authority would be a virtual abdication of the powers
of Congress in favor of the Executive, and would bring
about a total collapse of the democratic system
established by our Constitution, which it is the special
duty and privilege of this Court to uphold.
12. It may not be amiss to note that the executive
orders in question were issued after the legislative
bills for the creation of the municipalities involved in
this case had failed to pass Congress. A better proof
of the fact that the issuance of said executive orders
entails the exercise of purely legislative functions can
hardly be given.
President exercises power of supervision (not
control) over local government
13. Section 10 (1) of Article VII of the 1935
Constitution ordains:
"The President shall have control of all executive
departments, bureaus or offices, exercise general
supervision over all local governments as may be
provided by law, and take care that the laws be
faithfully executed."
14. The power of control under this provision implies
the right of the President to interfere in the exercise of
such discretion as may be vested by law in the officers
of the executive departments, bureaus, or offices of
the national government, as well as to act in lieu of
such officers. This power is denied by the Constitution
to the Executive, insofar as local governments are
concerned. With respect to the latter, the fundamental
law permits him to wieldno more authority than that
of checking whether said local governments or the
officers thereof perform their duties as provided by
statutory enactments. Hence, the President cannot
interfere with local governments, so long as the same
or its officers act within the scope of their authority.
He may not enact an ordinance which the municipal
council has failed or refused to pass, even if it had
thereby violated a duty imposed thereto by law,
although he may see to it that the corresponding
provincial officials take appropriate disciplinary action
therefor. Neither may he veto, set aside or annul an
ordinance passed by said council within the scope of
its jurisdiction, no matter how patently unwise it may
be. He may not even suspend an elective official of a
regular municipality or take any disciplinary action
against him, except on appeal from a decision of the
corresponding provincial board.
15. If the President could create a municipality, he
could, in effect, remove any of its officials, by creating
a new municipality and including therein the barrio in
which the official concerned resides, for his office
would thereby become vacant. Thus, by merely
brandishing the power to create a new municipality (if
he had it), without actually creating it, he could
compel local officials to submit to his dictation,
thereby, in effect, exercising over them the power of
control denied to him by the Constitution.
16. Also, the power of control of the President over
executive departments, bureaus or offices implies no
more than the authority to assume directly the
functions thereof or to interfere in the exercise of
discretion by its officials. Manifestly, such control does
not include the authority either to abolish an executive
department or bureaus, or to create a new one. As a
consequence, the alleged power of the President to
create municipal corporations would necessarily
connote the exercise by him of an authority even
greater than that of control which he has over the
26
executive departments, bureaus or offices. In other
words, Section 68 of the Revised Administrative Code
does not merely fail to comply with the constitutional
mandate above quoted. Instead of giving the
President less power over local governments than that
vested in him over the executive departments,
bureaus or offices, it reverses the process and does
the exact opposite, by conferring upon him more
power over municipal corporations than that which he
has over said executive departments, bureaus or
offices.
17. Even if it did not entail an undue delegation of
legislative powers, as it certainly does, said Section 68
of the Revised Administrative Code, approved on
March 10, 1917, must be deemed repealed by the
subsequent adoption of the Constitution, in 1935,
which is utterly incompatible and inconsistent with
said statutory enactment.
Issues on proper party and prematurity of
action
18. It has been alleged that "not all the proper
parties" - referring to the officers of the newly created
municipalities - "have been impleaded in this case"
Suffice it to say that the records do not show, and the
parties do not claim, that the officers of any of said
municipalities have been appointed or elected and
assumed office. At any rate, the Solicitor-General, who
has appeared on behalf of respondent Auditor
General, is the officer authorized by law "to act and
represent the Government of the Philippines, its
offices and agents, in any official investigation,
proceeding or matter requiring the services of a
lawyer" and, in connection with the creation of the
aforementioned municipalities, which involves a
political, not proprietary, function, said local officials, if
any, are mere agents or representatives of the
national government. Their interest in the case at bar
has, accordingly, been, in effect, duly represented.
19. Respondent alleges that "the present petition is
premature" since he has not as yet acted on any of
the executive order in question and has not intimated
how he would act in connection therewith. It is
however, a matter of common, public knowledge,
subject to judicial cognizance, that the President has,
for many years, issued executive orders creating
municipal corporations and that the same have been
organized and in actual operation, thus indicating that
the expenditures incidental thereto have been
sanctioned, approved or passed in audit by the
General Auditing Office and its officials. There is no
reason to believe, therefore, that respondent would
adopt a different policy as regards the new
municipalities involved in this case, in the absence of
an allegation to such effect, and none has been made
by him.
8. Case Summary
Ichong vs. Hernandez (1957)
G.R. No. L-7995 | 1957-05-31
Subject: Police power and its limitations; Equal
protection clause; Due process clause; Legislative
discretion not subject to judicial review; Alien control
and dominance in retail viewed as a threat to national
interest; Republic Act No. 1180 is a valid exercise of
police power, as it was enacted in the interest of
national economic survival and security; Equal
protection clause not violated (Difference in alien aims
and purposes sufficient basis for distinction);
Citizenship as basis for classification; Due process as a
limitation on the exercise of the police power
(Republic Act No. 1180 is reasonable and not
arbitrary); No defect in the title of the law (The
general term “regulate” encompasses “prohibition”);
No violation of international treaties and obligations
Facts:
The petition was brought to challenge the
constitutionality of Republic Act No. 1180 entitled "An
Act to Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main
provisions of the Act are:
(1) a prohibition against persons, not citizens of the
Philippines, and against associations, partnerships, or
corporations the capital of which are not wholly owned
by citizens of the Philippines, from engaging directly
or indirectly in the retail trade;
(2) an exception from the above prohibition in favor of
aliens actually engaged in said business on May 15,
1954, who are allowed to continue to engaged
therein, unless their licenses are forfeited in
accordance with the law, until their death or voluntary
retirement in case of natural persons, and for ten
years after the approval of the Act or until the
expiration of term in case of juridical persons;
27

(3) an exception therefrom in favor of citizens and
juridical entities of the United States;
(4) a provision for the forfeiture of licenses (to engage
in the retail business) for violation of the laws on
nationalization, control weights and measures and
labor and other laws relating to trade, commerce and
industry;
(5) a prohibition against the establishment or opening
by aliens actually engaged in the retail business of
additional stores or branches of retail business,
(6) a provision requiring aliens actually engaged in the
retail business to present for registration with the
proper authorities a verified statement concerning
their businesses, giving, among other matters, the
nature of the business, their assets and liabilities and
their offices and principal offices of judicial entities;
and
(7) a provision allowing the heirs of aliens now
engaged in the retail business who die, to continue
such business for a period of six months for purposes
of liquidation.
Petitioner, for his own behalf and that of other alien
residents corporations and partnerships adversely
affected by the RA 1180, attacks the constitutionality
of the Act, contending that:
(1) it denies to alien residents the equal protection of
the laws and deprives them of their liberty and
property without due process of law ;
(2) the subject of the Act is not expressed or
comprehended in the title thereof;
(3) the Act violates international and treaty obligations
of the Republic of the Philippines;
(4) the provisions of the Act against the transmission
by aliens of their retail business thru hereditary
succession, and those requiring 100% Filipino
capitalization for a corporation or entity to entitle it to
engage in the retail business, violate the spirit of
Sections 1 and 5, Article XIII and Section 8 of Article
XIV of the Constitution.
Held:
Police power and its limitations
1. Republic Act No. 1180 was approved in the
exercise of the police power. It has been said the
police power is so far-reaching in scope, that it has
become almost impossible to limit its sweep. As it
derives its existence from the very existence of the
State itself, it does not need to be expressed or
defined in its scope. It is said to be co-extensive with
self-protection and survival, and as such it is the most
positive and active of all governmental processes, the
most essential, insistent and illimitable. As we cannot
foresee the needs and demands of public interest and
welfare in this constantly changing and progressive
world, so we cannot delimit beforehand the extent or
scope of police power by which and through which the
State seeks to attain or achieve interest or welfare. So
it is that Constitutions do not define the scope or
extent of the police power of the State; what they do
is to set forth the limitations thereof. The most
important of these are the due process clause and
the equal protection clause.
2. The basic limitations of due process and equal
protection are found in Article III, Section of the
Constitution:
SECTION 1. No person shall be deprived of life, liberty
or property without due process of law, nor any
person be denied the equal protection of the laws.
3. The conflict between police power and the
guarantees of due process and equal protection of the
laws is more apparent than real. Properly related, the
power and the guarantees are supposed to coexist.
So the State can deprive persons of life, liberty and
property, provided there is due process of law; and
persons may be classified into classes and groups,
provided everyone is given the equal protection of the
law. The test or standard, as always, is reason. The
police power legislation must be firmly grounded on
public interest and welfare, and areasonable relation
must exist between purposes and means. And if
distinction and classification has been made, there
must be a reasonable basis for said distinction.
(a) Equal protection clause
4. The equal protection of the law clause is against
undue favor and individual or class privilege, as well
as hostile discrimination or the oppression of
inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is
directed or by territory within which is to operate.
It does not demand absolute equality among
28
residents; it merely requires that all persons shall be
treated alike, under like circumstances and
conditionsboth as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed
by legislation which applies only to those persons
falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds
exists for making a distinction between those who fall
within such class and those who do not.
(b) Due process clause
5. The due process clause has to do with the
reasonableness of legislation enacted in pursuance of
the police power. Is there public interest, a public
purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the
legislature's purpose; is it not unreasonable, arbitrary
or oppressive? Is there sufficient foundation or reason
in connection with the matter involved; or has there
not been a capricious use of the legislative power?
Can the aims conceived be achieved by the means
used, or is it not merely an unjustified interference
with private interest? These are the questions that we
ask when the due process test is applied.
Legislative discretion not subject to judicial
review
6. The legislature, which is the constitutional
repository of police power and exercises the
prerogative of determining the policy of the State,
is primarily the judge of necessity, adequacy or
reasonableness and wisdom, of any law promulgated
in the exercise of the police power, or of the measures
adopted to implement the public policy or to achieve
public interest. On the other hand, courts, although
zealous guardians of individual liberty and right, have
nevertheless evinced a reluctance to interfere with the
exercise of the legislative prerogative. They have done
so early where there has been a clear, patent or
palpable arbitrary and unreasonable abuse of the
legislative prerogative. Moreover, courts are not
supposed to override legitimate policy, and courts
never inquire into the wisdom of the law.
Alien control and dominance in retail viewed as
a threat to national interest
7. There is a general feeling on the part of the public,
which appears to be true to fact, about the controlling
and dominant position that the alien retailer holds in
the nation's economy. Food and other essentials,
clothing, almost all articles of daily life reach the
residents mostly through him. Between the
constitutional convention year (1935), when the fear
of alien domination and control of the retail trade
already filled the minds of our leaders with fears and
misgivings, and the year of the enactment of the
nationalization of the retail trade act (1954), official
statistics unmistakably point out to the ever-increasing
dominance and control by the alien of the retail trade.
While Filipinos have the edge in the number of
retailers, aliens more than make up for the numerical
gap through their assests and gross sales which
average between six and seven times those of the
very many Filipino retailers. Numbers in retailers,
here, do not imply superiority; the alien invests more
capital, buys and sells six to seven times more, and
gains much more.
8. There is a prevailing feeling that such
predominance may truly endanger the national
interest. With ample capital, unity of purpose and
action and thorough organization, alien retailers and
merchants can act in such complete unison and
concert on such vital matters as the fixing of prices,
the determination of the amount of goods or articles
to be made available in the market, and even the
choice of the goods or articles they would or would
not patronize or distribute, that fears of dislocation of
the national economy and of the complete
subservience of national economy and of the
consuming public are not entirely unfounded.
Nationals, producers and consumers alike can be
placed completely at their mercy.
9. It is a fact within judicial notice, which courts of
justice may not properly overlook or ignore in the
interests of truth and justice, that there exists a
general feeling on the part of the public that alien
participation in the retail trade has been attended by a
pernicious and intolerable practices, the mention of a
few of which would suffice for our purposes; that at
some time or other they have cornered the market of
essential commodities, like corn and rice, creating
artificial scarcities to justify and enhance profits to
unreasonable proportions; that they have hoarded
essential foods to the inconvenience and prejudice of
the consuming public, so much so that the
Government has had to establish the National Rice
and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that
they have violated price control laws, especially on
29
foods and essential commodities, such that the
legislature had to enact a law (Sec. 9, Republic Act
No. 1168), authorizing their immediate and automatic
deportation for price control convictions; that they
have secret combinations among themselves to
control prices, cheating the operation of the law of
supply and demand; that they have connived to
boycott honest merchants and traders who would not
cater or yield to their demands, in unlawful restraint of
freedom of trade and enterprise. They are believed by
the public to have evaded tax laws, smuggled goods
and money into and out of the land, violated import
and export prohibitions, control laws and the like, in
derision and contempt of lawful authority. It is also
believed that they have engaged in corrupting public
officials with fabulous bribes, indirectly causing the
prevalence of graft and corruption in the Government.
As a matter of fact appeals to unscrupulous aliens
have been made both by the Government and by their
own lawful diplomatic representatives, action which
impliedly admits a prevailing feeling about the
existence of many of the above practices.
10. The present dominance of the alien retailer,
especially in the big centers of population, also
becomes a potential source of danger on occasions of
war or other calamity. We do not have here in this
country isolated groups of harmless aliens retailing
goods among nationals; what we have are well
organized and powerful groups that dominate the
distribution of goods and commodities in the
communities and big centers of population. Theyowe
no allegiance or loyalty to the State, and the State
cannot rely upon them in times of crisis or emergency.
While the national holds his life, his person and his
property subject to the needs of his country, the alien
may even become the potential enemy of the State.
Republic Act No. 1180 is a valid exercise of
police power, as it was enacted in the interest
of national economic survival and security
11. Republic Act No. 1180 is not the product of racial
hostility, prejudice or discrimination, but the
expression of the legitimate desire and determination
of the people, thru their authorized representatives, to
free the nation from the economic situation that has
unfortunately been saddled upon it rightly or wrongly,
to its disadvantage.The law is clearly in the interest of
the public, nay of the national security itself, and
indisputably falls within the scope of police
power, thru which and by which the State insures its
existence and security and the supreme welfare of its
citizens.
Equal protection clause not violated (Difference
in alien aims and purposes sufficient basis for
distinction)
12. The mere fact of alienage is the root and cause of
the distinction between the alien and the national as a
trader. The alien resident owes allegiance to the
country of his birth or his adopted country; his stay
here is for personal convenience; he is attracted by
the lure of gain and profit. His aim or purpose of stay,
we admit, is neither illegitimate nor immoral, but he is
naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily
stays and makes his living, or of that spirit of regard,
sympathy and consideration for his Filipino customers
as would prevent him from taking advantage of their
weakness and exploiting them.
13. The practices resorted to by aliens in the control
of distribution, their secret manipulations of stocks of
commodities and prices, their utter disregard of the
welfare of their customers and of the ultimate
happiness of the people of the nation of which they
are mere guests, which practices, manipulations and
disregard do not attend the exercise of the trade by
the nationals, show the existence of real and actual,
positive and fundamental differences between an alien
and a national which fully justify the legislative
classification adopted in the retail trade measure.
These differences are certainly a valid reason for the
State to prefer the national over the alien in the retail
trade.
14. Another objection to the alien retailer in this
country is that he never really makes a genuine
contribution to national income and wealth. He
undoubtedly contributes to general distribution, but
the gains and profits he makes are not invested in
industries that would help the country's economy and
increase national wealth. The alien's interest in this
country being merely transient and temporary, it
would indeed be ill-advised to continue entrusting the
very important function of retail distribution to his
hands.
15. Some may disagree with the wisdom of the
legislature's classification. To this we answer, that this
is the prerogative of the law-making power. Since the
Court finds that the classification is actual, real and
30
reasonable, and all persons of one class are treated
alike, and as it cannot be said that the classification is
patently unreasonable and unfounded, it is in duty
bound to declare that the legislature acted within its
legitimate prerogative and it can not declare that the
act transcends the limit of equal protection established
by the Constitution.
Citizenship as basis for classification
16. The question as to whether or not citizenship is a
legal and valid ground for classification has already
been affirmatively decided in this jurisdiction as well
as in various courts in the United States. (see Smith
Bell & Co. vs. Natividad)
17. Aliens are under no special constitutional
protection which forbids a classification otherwise
justified simply because the limitation of the class falls
along the lines of nationality. That would be requiring
a higher degree of protection for aliens as a class than
for similar classes than for similar classes of American
citizens. Broadly speaking, the difference in status
between citizens and aliens constitutes a basis for
reasonable classification in the exercise of police
power.
18. It is true that some decisions in the United States
hold that the distinction between aliens and citizens is
not a valid ground for classification. But in those
decisions, the laws declared invalid were found to be
either arbitrary, unreasonable or capricious, or were
the result or product of racial antagonism and
hostility, and there was no question of public interest
involved or pursued. The case at bar is radically
different. As we already have said, aliens do not
naturally possess the sympathetic consideration and
regard for the customers with whom they come in
daily contact, nor the patriotic desire to help bolster
the nation's economy, except in so far as it enhances
their profit, nor the loyalty and allegiance which the
national owes to the land.
Due process as a limitation on the exercise of
the police power (Republic Act No. 1180 is
reasonable and not arbitrary)
19. The guaranty of due process demands only that
the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a
real and substantial relation to the subject sought to
be attained.
20. So far as the requirement of due process is
concerned and in the absence of other constitutional
restriction a state is free to adopt whatever economic
policy may reasonably be deemed to promote public
welfare, and to enforce that policy by legislation
adapted to its purpose. The courts are without
authority either to declare such policy, or, when it is
declared by the legislature, to override it. If the laws
passed are seen to have a reasonable relation to a
proper legislative purpose, and are neither arbitrary
nor discriminatory, the requirements of due process
are satisfied, and judicial determination to that effect
renders a court functus officio. (see Nebbia vs. New
York)
21. Is the exclusion in the future of aliens from the
retail trade unreasonable, arbitrary, capricious, taking
into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged
therein? The answer is clear. The law in question
is deemed absolutely necessary to bring about the
desired legislative objective, i.e., to free national
economy from alien control and dominance. It is not
necessarily unreasonable because it affects private
rights and privileges. The test of reasonableness of a
law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its
purpose into effect. Judged by this test, the disputed
legislation, which is not merely reasonable but actually
necessary, must be considered not to have infringed
the constitutional limitation of reasonableness.
22. A cursory study of the provisions of the law
immediately reveals how tolerant, how reasonable,
the Legislature has been. The law is made prospective
and recognizes the right and privilege of those already
engaged in the occupation to continue therein during
the rest of their lives; and similar recognition of the
right to continue is accorded associations of aliens.
The right or privilege is denied to those only upon
conviction of certain offenses
23. Furthermore, the test of the validity of a law
attacked as a violation of due process, is not its
reasonableness, but its unreasonableness, and we find
the provisions are not unreasonable. These principles
also answer various other arguments raised against
the law, some of which are: that the law does not
promote general welfare; that thousands of aliens
would be thrown out of employment; that prices will
increase because of the elimination of competition;
31
that there is no need for the legislation; that adequate
replacement is problematical; that there may be
general breakdown; that there would be repercussions
from foreigners; etc. Many of these arguments are
directed against the supposed wisdom of the law
which lies solely within the legislative prerogative;
they do not import invalidity.
No defect in the title of the law (The general
term “regulate” encompasses “prohibition”)
24. It is claimed that the title of Republic Act No.
1180 (An Act to Regulate the Retail Business) is
misleading or deceptive, as it conceals the real
purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein.
The constitutional provision which is claimed to be
violated in Section 21 (1) of Article VI, which reads:
“No bill which may be enacted in the law shall
embrace more than one subject which shall be
expressed in the title of the bill.”
25. What the above provision prohibits is duplicity,
that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and
consequences of the law or its operation. A cursory
consideration of the title and the provisions of the bill
fails to show the presence of duplicity. It is true that
the term "regulate" does not and may not readily and
at first glance convey the idea of "nationalization" and
"prohibition", which terms express the two main
purposes and objectives of the law. But "regulate" is a
broader term than either prohibition or nationalization.
Both of these have always been included within the
term regulation.
26. The word "regulate" is of broad import,
and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the
thing to be regulated. While word regulate does not
ordinarily convey meaning of prohibit, there is no
absolute reason why it should not have such meaning
when used in delegating police power in connection
with a thing the best or only efficacious regulation of
which involves suppression. (see State vs. Morton)
27. The general rule is for the use of general terms in
the title of a bill; it has also been said that the title
need not be an index to the entire contents of the
law . The above rule was followed since the title of the
Act in question adopted the more general term
"regulate" instead of "nationalize" or "prohibit".
Furthermore, the law also contains other rules for the
regulation of the retail trade which may not be
included in the terms "nationalization" or "prohibition";
so were the title changed from "regulate" to
"nationalize" or "prohibit", there would have been
many provisions not falling within the scope of the
title which would have made the Act invalid. The use
of the term "regulate", therefore, is in accord with the
principle governing the drafting of statutes, under
which a simple or general term should be adopted in
the title, which would include all other provisions
found in the body of the Act.
No violation of international treaties and
obligations
28. Another argument against the validity of the law
is the supposed violation thereby of the Charter of the
United Nations and of the Declaration of the Human
Rights adopted by the United Nations General
Assembly. The Nations Charter imposes no strict or
legal obligations regarding the rights and freedom of
their subjects, and the Declaration of Human Rights
contains nothing more than a mere recommendation
or a common standard of achievement for all peoples
and all nations. That such is the import of the United
Nations Charter and of the Declaration of Human
Rights can be inferred the fact that members of the
United Nations Organizations, such as Norway and
Denmark, prohibit foreigners from engaging in retail
trade, and in most nations of the world laws against
foreigners engaged in domestic trade are adopted.
29. The Treaty of Amity between the Republic of the
Philippines and the Republic of China of April 18, 1947
is also claimed to be violated by the law in question.
All that the treaty guarantees is equality of treatment
to the Chinese nationals "upon the same terms as the
nationals of any other country." But the nationals of
China are not discriminated against because nationals
of all other countries, except those of the United
States, who are granted special rights by the
Constitution, are all prohibited from engaging in the
retail trade. But even supposing that the law infringes
upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law and
the same may never curtail or restrict the scope of the
police power of the State.
9. Case Summary
Naval vs. Comelec (2014)
32
G.R. No. 207851 | 2014-07-08
Subject: Jurisprudence on the three-term limit rule;
The role of elections in our Democratic and Republican
state, and the restraints imposed upon those who hold
public office; The Constitution mandates the strict
implementation of the three-term limit rule; Aldivino
ruling: The three-term limit rule is inflexible;
Reapportionment and its basis; R.A. No. 9716 created
a new Second District, but it merely renamed the
other four; Application of three-term limit rule upon
local elective officials in renamed and/or
reapportioned districts; The presumed competence of
the COMELEC to resolve matters falling within its
jurisdiction is upheld
Facts:
From 2004 to 2007 (1st term) and 2007 to 2010 (2nd
term), Angel G. Naval had been elected and had
served as a member of the
Sanggunian, Second District, Province of Camarines
Sur.
On October 12, 2009, the President approved Republic
Act No. 9716, which reapportioned the legislative
districts in Camarines Sur. In particular, the Second
District was reapportioned such that 8 out of its 10
town constituencies are carved out and placed under
the Third District. The Second District is left with the
two remaining towns, Gainza and Milaor, merged with
five towns from the old First District.
In the 2010 elections (3rd term), Naval once again
won but this time as a member of the
Sanggunian, Third District. He served until 2013.
In the 2013 elections, Naval ran anew and was re-
elected as Member of the Sanggunian, Third District.
On October 29, 2012, Nelson B. Julia invoked Section
7810 of the Omnibus Election Code (OEC) and filed
before the COMELEC a Verified Petition to Deny Due
Course or to Cancel the Certificate of Candidacy of
Naval. Julia posited that the three-term limit rule’s
application is more with reference to the same local
elective post, and not necessarily in connection with
an identical territorial jurisdiction. Allowing Naval to
run as a Sanggunian member for the fourth time,
irrespective of the District, is violative of the three-
term limit rule enshrined in the Constitution and the
LGC, which must be strictly construed.
The COMELEC Second Division cancelled Naval’s COC
on the ground that Naval had committed a false
material misrepresentation when he declared that he
was eligible to run when in fact he is disqualified
under the three term limit rule. The said body rationed
that the new Third District where Naval was elected
and has served (his 3rd term) is composed of the
same municipalities comprising the previous Second
District, absent the towns Gainza and Milaor. Hence,
the territorial jurisdiction Naval seeks to serve for the
term 2013-2016 is the same as the territorial
jurisdiction he previously served. The electorate who
voted for him in 2004 (1st term) , 2007 (2nd term)and
2010 (3rd term) is the same electorate who shall vote
for him come May 13, 2013 Elections.
The COMELEC en banc denied Naval’s Motion for
Reconsideration to the above and affirmed the
application of the three-term limit rule against Naval.
Hence, this petition.
Held:
Jurisprudence on the three-term limit rule
1. In Latasa vs. COMELEC (2003), the case
involved the question of whether or not a municipal
mayor, having been elected and had already served
for three (3) consecutive terms, can run as city mayor
in light of the conversion of the municipality to a city.
In applying the three-term limit rule, the Court
pointed out that the conversion of the municipality
into a city did not convert the office of the municipal
mayor into a local government post different from the
office of the city mayor. The Court took into account
the following circumstances: (1) That the territorial
jurisdiction of [the] city was the same as that of the
municipality; (2) That the inhabitants were the same
group of voters who elected the municipal mayor for
three (3) consecutive terms; and (3) That the
inhabitants were the same group of voters over whom
he held power and authority as their chief executive
for nine years.
2. In Lonzanida vs. COMELEC (1999), a candidate
ran for the mayoralty post and won in three
consecutive elections. While serving his third term, his
opponent filed an election protest. Months before the
expiration of the mayor’s third term, he was ousted
from office. He ran again for the same post in the
immediately succeeding election. The Court ruled that
33
the mayor could not be considered as having served a
full third term. An interruption for any length of time,
if due to an involuntary cause, is enough to break the
elected official’s continuity of service.
3. In Borja, Jr. vs. COMELEC (1998) , the mayor
of Pateros died and was succeeded in office by the
vice mayor. In the two immediately succeeding
elections, the latter vied for and won the mayoralty
post. When he ran for the same position for the third
time, his disqualification was sought for alleged
violation of the three-term limit rule. The Court ruled
that when he assumed the position of mayor by virtue
of succession, his service should not be treated as one
full term. For the disqualification to apply, the
candidate should have been thrice elected for and had
served the same post consecutively.
4. In Aldovino vs. COMELEC (2009), preventive
suspension was imposed upon an elected municipal
councilor. The Court ruled that the said preventive
suspension did not interrupt the elective official’s
term. Although he was barred from exercising the
functions of the position during the period of
suspension, his continued stay and entitlement to the
office remain unaffected.
5. In Bandillo vs. Hernandez, a case decided by
the COMELEC, Gainza and Milaor were added to five
of the ten towns, which used to comprise Camarines
Sur’s old First District, to form the new Second
District. The COMELEC declined to apply the three-
term limit rule against the elected Provincial Board
member on the ground that the addition of Gainza
and Milaor distinctively created a new district, with an
altered territory and constituency.
The role of elections in our Democratic and
Republican state, and the restraints imposed
upon those who hold public office
6. The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them.
7. A republic is a representative government, a
government run by and for the people. It is not a pure
democracy where the people govern themselves
directly. The essence of republicanism is
representation and renovation, the selection by the
citizenry of a corps of public functionaries who derive
their mandate from the people and act on their behalf,
serving for a limited period only, after which they are
replaced or retained, at the option of their principal.
Obviously, a republican government is a responsible
government whose officials hold and discharge their
position as a public trust and shall, according to the
Constitution, ‘at all times be accountable to the
people’ they are sworn to serve. The purpose of a
republican government it is almost needless to state,
is the promotion of the common welfare according to
the will of the people themselves.
8. The electoral process is one of the linchpins of a
democratic and republican framework because it is
through the act of voting that government by consent
is secured. Voting has an important instrumental value
in preserving the viability of constitutional democracy.
It has traditionally been taken as a prime indicator of
democratic participation
9. Hence, while it is settled that in elections, the first
consideration of every democratic polity is to give
effect to the expressed will of the majority, there are
limitations to being elected to a public office. Our
Constitution and statutes are explicit anent
the existence of term limits, the nature of public
office, and the guarantee from the State that citizens
shall have equal access to public service. Section 8,
Article X of our Constitution, on term limits, is
significantly reiterated by Section 43(b) of the Local
Government Code. Moreover, the Court has time and
again declared that a public office is a public trust and
not a vested property right.
The Constitution mandates the strict
implementation of the three-term limit rule
10. In the constitutional deliberations, the drafters of
our Constitution are in agreement about the possible
attendant evils if there would be no limit to re-
election. Notwithstanding their conflicting preferences
on whether the term limit would disqualify the elected
official perpetually or temporarily, they decided that
only three consecutive elections to the same position
would be allowed. Thereafter, the public official can
once again vie for the same post provided there be a
gap of at least one term from his or her last election.
The rule answers the need to prevent the
consolidation of political power in the hands of the
few, while at the same time giving to the people the
freedom to call back to public service those who are
worthy to be called statesmen.
34
11. The Court in construing a Constitution should
bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and
the condition and circumstances under which the
Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution
to enact the particular provision and the purpose
sought to be accomplished thereby, in order to
construe the whole as to make the words consonant
to that reason and calculated to effect that purpose.
12. The Court notes that in the process of drafting
the Constitution, the framers thereof had not
discussed with specifity the subject of the three-term
limit rule’s application on reapportioned districts.
Aldivino ruling: The three-term limit rule is
inflexible
13. The “limitation” is expressed in the negative—“no
such official shall serve for more than three
consecutive terms.” This formulation—no more than
three consecutive terms—is a clear command
suggesting the existence of an inflexible rule. This
examination of the wording of the constitutional
provision and of the circumstances surrounding its
formulation impresses upon us the clear intent to
make term limitation a high priority constitutional
objective whose terms must be strictly construed and
which cannot be defeated by, nor sacrificed for, values
of less than equal constitutional worth. The cases
teach us to strictly interpret the term limitation rule in
favor of limitation rather than its exception.
Reapportionment and its basis
14. Reapportionment is “the realignment or change in
legislative districts brought about by changes in
population and mandated by the constitutional
requirement of equality of representation.” The aim of
legislative apportionment is to equalize population and
voting power among districts. The basis for districting
shall be the number of the inhabitants of a city or a
province and not the number of registered voters
therein.
R.A. No. 9716 created a new Second District,
but it merely renamed the other four
15. As a result of the reapportionment made by R.A.
No. 9716, the old Second District of Camarines Sur,
minus only the two towns of Gainza and Milaor,
is renamed as the Third District.
16. After the reapportionment of the districts in
Camarines Sur, the current Third District, which
brought Naval to office in 2010 and 2013, has a
population of 35,856 less than that of the old Second
District, which elected him in 2004 and 2007.
However, the wordings of R.A. No. 9716 indicate the
intent of the lawmakers to create a single new Second
District from the merger of the towns from the old
First District with Gainza and Milaor. As to the current
Third District, Section 3(c) of R.A. No. 9716 used the
word “rename.” Although the qualifier “without a
change in its composition” was not found in Section
3(c), unlike in Sections 3(d) and (e), still, what is
pervasive is the clear intent to create a
sole new district in that of the Second, while
merely renaming the rest.
17. The verb create means to “make or produce
something new.” On the other hand, the
verb rename means to “give a new name to someone
or something.” A complete reading of R.A. No. 9716
yields no logical conclusion other than that the
lawmakers intended the old Second District to be
merely renamed as the current Third District.
18. It likewise bears noting that the actual difference
in the population of the old Second District from that
of the current Third District amounts to less than 10%
of the population of the latter. This numerical fact
renders the new Third District as essentially, although
not literally, the same as the old Second District.
Hence, while Naval is correct in his argument that
Sanggunian members are elected by district, it does
not alter the fact that the district which elected him
for the third and fourth time is the same one which
brought him to office in 2004 and 2007.
Application of three-term limit rule upon local
elective officials in renamed and/or
reapportioned districts
19. Naval’s ineligibility to run, by reason of violation
of the three-term limit rule, does not undermine the
right to equal representation of any of the districts in
Camarines Sur. With or without him, the renamed
Third District, which he labels as a new set of
35
constituents, would still be represented, albeit by
another eligible person.
20. Sustaining Naval’s arguments would practically
allow him to hold the same office for 15 years. These
are the circumstances the Constitution explicitly
intends to avert.
The presumed competence of the COMELEC to
resolve matters falling within its jurisdiction is
upheld
21. A petition for certiorari against actions of the
COMELEC is confined only to instances of grave abuse
of discretion amounting to patent and substantial
denial of due process, because the COMELEC is
presumed to be most competent in matters falling
within its domain.
22. In a special civil action for certiorari, the burden
rests on the petitioner to prove not merely reversible
error, but grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the public
respondent issuing the impugned order, decision or
resolution. Grave abuse of discretion arises when a
court or tribunal violates the Constitution, the law or
existing jurisprudence. In the case at bar, the Court
finds the COMELEC’s disquisitions to be amply
supported by the Constitution, law and jurisprudence.
10. Case Summary
Araullo vs Aquino (2014)
G.R. No. 209287 | 2014-07-01
Subject:
Judicial Review; Philippine Budget System; Section
25(5) and Section 29(1) of Article VI of the 1987
Constitution; Impoundment; Equal Protection;
Doctrine of Operative Fact
Facts:
Consolidated petitions assail the constitutionality of
the Disbursement Acceleration Program (DAP),
National Budget Circular (NBC) No. 541, and related
issuances of the Department of Budget and
Management (DBM) implementing the DAP.
The controversy stemmed from a privilege speech
delivered by Senator Jinggoy Estrada to reveal that
some Senators, including himself, had been allotted
an additional P50 Million each as “incentive” for voting
in favor of the impeachment of Chief Justice Renato
Corona.
In response, DBM Secretary Florencio Abad issued a
public statement explaining that the funds released to
the Senators had been part of the DAP, a program
designed by the DBM to ramp up spending to
accelerate economic expansion. He clarified that the
funds had been released to the Senators based on
their letters of request for funding and that the DAP
releases had been sourced from savings generated by
the Government, and from unprogrammed funds.
Petitioners allege that the DAP, being actually an
appropriation that sets aside public funds for public
use, should require an enabling law for its validity.
However, Congress never enacted a law to establish
the DAP nor to authorize release of public funds to
implement the DAP. Thus, it is contended that DAP
contravenes Section 29(1) of Article VI of the 1987
Constitution which states that “[n]o money shall be
paid out of the Treasury except in pursuance of an
appropriation made by law”
The OSG posits, however, that no law was necessary
for the adoption and implementation of the DAP
because of its being neither a fund nor an
appropriation, but a program or an administrative
system of prioritizing spending; and that the adoption
of the DAP was by virtue of the authority of the
President as the Chief Executive to ensure that laws
were faithfully executed
The DBM also cited as legal bases for the DAP’s use of
savings (a) Section 25(5), Article VI of the 1987
Constitution, which granted to the President the
authority to augment an item for his office in the
general appropriations law (b) various sections of EO
292 (Administrative Code of 1987); and (c) the
General Appropriations Acts of 2011, 2012 and 2013,
particularly their provisions on the use of savings.
Held:
I. Procedural Issues
Judicial Review
1. Judicial power as defined under [Section1, Art 8] of
the 1987 Constitution includes the duty of the courts
of justice not only “to settle actual controversies
36
involving rights which are legally demandable and
enforceable” but also “to determine whether or not
there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.” It has
thereby expanded the concept of judicial power.
2. The requisites for the exercise of the power of
judicial review are the following, namely: (1) there
must be an actual case or justiciable
controversy before the Court; (2) the question before
the Court must be ripe for adjudication; (3) the person
challenging the act must be a proper party; and (4)
the issue of constitutionality must be raised at the
earliest opportunity and must be the very litis mota of
the case
(a) The incompatibility of the perspectives of the
parties on the constitutionality of the DAP and its
relevant issuances satisfy the requirement for a
conflict between legal rights. Hence, an actual and
justiciable controversy exists.
(b) The issues being raised meet the requisite
ripeness considering that the challenged executive
acts were already being implemented by the DBM.
(c) as citizens and taxpayers, petitioners have
sufficient interest in the outcome of the controversy as
to confer locus standi on each of them. Moreover, the
issues involve matters of transcendental importance.
Mootness
3. A moot and academic case is one that ceases to
present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value.
4. The Court cannot agree that the termination of the
DAP as a program was a supervening event that
effectively mooted these consolidated cases. Verily,
the Court had in the past exercised its power of
judicial review despite the cases being rendered moot
and academic by supervening events, like: (1) when
there was a grave violation of the Constitution; (2)
when the case involved a situation of exceptional
character and was of paramount public interest; (3)
when the constitutional issue raised required the
formulation of controlling principles to guide the
Bench, the Bar and the public; and (4) when the case
was capable of repetition yet evading review.
Locus Standi
5. Legal standing, as a requisite for the exercise of
judicial review, refers to “a right of appearance in a
court of justice on a given question.”
6. The Court has adopted the direct injury test for
determining whether a petitioner in a public action has
locus standi, i.e., the person who would assail the
validity of a statute must have “a personal and
substantial interest in the case such that he has
sustained, or will sustain direct injury as a result.”
7. The requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in
the exercise of its discretion.
II. Substantive Issues
Budget System
8. Under Republic Act No. 992 (Revised Budget Act)
the term 'budget' is described as the services and
products, or benefits that would accrue to the public
together with the estimated unit cost of each type of
service, product or benefit.
9. The Philippine Budget System is guided by two
principal objectives that are vital to the development
of a progressive democratic government, namely: (1)
to carry on all government activities under a
comprehensive fiscal plan developed, authorized and
executed in accordance with the Constitution,
prevailing statutes and the principles of sound public
management; and (2) to provide for the periodic
review and disclosure of the budgetary status of the
Government in such detail so that persons entrusted
by law with the responsibility as well as the
enlightened citizenry can determine the adequacy of
the budget actions taken, authorized or proposed, as
well as the true financial position of the Government.
10. The Philippine budget process is comprised of four
phases. Each phase is distinctly separate from the
others but they overlap in the implementation of the
budget during the budget year. These are:
(1) Budget Preparation— government agencies
prepare and submit their budget proposals in response
to a Budget Call by the DBM.
37

(2) Budget Legislation— also known as the Budget
Authorization Phase, and involves the participation of
both legislative houses through its deliberations and
culminates in the passing of a General Appropriations
Act.
(3) Budget Execution— this phase is primarily the
function of the DBM, which is tasked to: (1) issue the
programs and guidelines for the release of funds; (2)
prepare an Allotment and Cash Release Program (3)
release allotments; and (4) issue disbursement
authorities. Actual disbursement or spending of
government funds terminates the Budget Execution
Phase.
(4) Accountability— An agency’s accountability may be
examined and evaluated through (1) performance
targets and outcomes; (2) budget accountability
reports; (3)review of agency performance; and (4)
audit conducted by the Commission on Audit (COA).
Public Expenditures
11. Public or government expenditures are generally
classified into two categories, specifically:
(1) Capital expenditures or outlays: the expenses
whose usefulness lasts for more than one year, and
which add to the assets of the Government, including
investments in the capital of GOCCs and their
subsidiaries.
(2) Current operating expenditures: the purchases of
goods and services in current consumption the benefit
of which does not extend beyond the fiscal year. The
two components of current expenditures are those for
personal services (PS), and those for maintenance and
other operating expenses (MOOE).
12. Public expenditures are also broadly grouped
according to their functions into:
(1)economic development
expenditures (i.e.,expenditures on agriculture and
natural resources, transportation and communications,
commerce and industry, and other economic
development efforts);
(2)social services or social development
expenditures (i.e., government outlay on education,
public health and medicare, labor and welfare and
others);
(3) general government or general public services
expenditures (i.e., expenditures for the general
government, legislative services, the administration of
justice, and for pensions and gratuities);
(4) national defense expenditures (i.e., sub-divided
into national security expenditures and expenditures
for the maintenance of peace and order);
and
(5)public debt
13. Public expenditures may further be classified
according to the nature of funds:
(1) General fund,
(2) Special fund
(3) Bond fund
Public Revenues
14. Public revenues cover all income or receipts of the
government treasury used to support government
expenditures.
15. Public revenues are classified as either:
(1) General Income (service income, forex gains,
donations, etc) or
(2) Specific Income (taxes, fines)
16. In the Philippines, public revenues are generally
derived from the following sources, to wit:
(1) Tax revenues (i.e., compulsory contributions to
finance government activities);
(2) capital revenues (i.e., proceeds from sales of fixed
capital assets or scrap thereof and public domain, and
gains on such sales like sale of public lands, buildings
and other structures, equipment, and other properties
recorded as fixed assets);
(3) Grants (i.e., voluntary contributions and aids given
to the Government for its operation on specific
purposes in the form of money and/or materials, and
do not require any monetary commitment on the part
of the recipient);
(4) extra-ordinary income (i.e., repayment of loans
38
and advances made by government corporations and
local governments and the receipts and shares in
income of the Banko Sentral ng Pilipinas, and other
receipts); and
(5) public borrowings (i.e., proceeds of repayable
obligations generally with interest from domestic and
foreign creditors of the Government in general,
including the National Government and its political
subdivisions)
Appropriation vs Allotments
17. Appropriation is the act by which Congress
“designates a particular fund, or sets apart a specified
portion of the public revenue or of the money in the
public treasury, to be applied to some general object
of governmental expenditure, or to some individual
purchase or expense.”
18. Allotments, which authorize an agency to enter
into obligations, are issued by the DBM. Allotments
are lesser in scope than appropriations, in that the
latter embrace the general legislative authority to
spend. Allotments may be released in two forms –
through a comprehensive Agency Budget Matrix
(ABM), or, individually, by Special Allotment Release
Order (SARO).
NCA vs SARO
19. In order to settle the obligations incurred by the
agencies, the DBM issues a disbursement authority so
that cash may be allocated in payment of the
obligations. A cash or disbursement authority that is
periodically issued is referred to as a Notice of Cash
Allocation (NCA), which issuance is based upon an
agency’s submission of its Monthly Cash Program and
other required documents. The NCA specifies the
maximum amount of cash that can be withdrawn from
a government servicing bank for the period indicated.
20. A SARO, as defined by the DBM itself in its
website, is “[a] specific authority issued to identified
agencies to incur obligations not exceeding a given
amount during a specified period for the purpose
indicated. It shall cover expenditures the release of
which is subject to compliance with specific laws or
regulations, or is subject to separate approval or
clearance by competent authority.”
21. Based on this definition, it may be gleaned that a
SARO only evinces the existence of an obligation and
not the directive to pay.Practically speaking, the SARO
does not have the direct and immediate effect of
placing public funds beyond the control of the
disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will
prevent the actual release of funds. On the other
hand, the actual release of funds is brought about by
the issuance of the Notice of Cash Allotment (NCA),
which is subsequent to the issuance of a
SARO. (Belgica v. Executive Secretary)
DAP
22. DAP was designed as a stimulus package intended
to fast-track public spending and to push economic
growth by investing on high-impact budgetary PAPs
(program, activity or project) to be funded from the
“savings” generated during the year as well as from
unprogrammed funds.
DAP is not an appropriation measure; hence, no
appropriation law is required to adopt or to
implement it
23. In the context of the DAP’s adoption and
implementation being a function pertaining to the
Executive as the main actor during the Budget
Execution Stage under its constitutional mandate to
faithfully execute the laws, including the
GAAs, Congress did not need to legislate to adopt or
to implement the DAP. Congress could appropriate but
would have nothing more to do during the Budget
Execution Stage.
24. The President, in keeping with his duty to faithfully
execute the laws, had sufficient discretion during the
execution of the budget to adapt the budget to
changes in the country’s economic situation. He could
adopt a plan like the DAP for the purpose. He could
pool the savings and identify the PAPs to be funded
under the DAP. The pooling of savings pursuant to the
DAP, and the identification of the PAPs to be funded
under the DAP did not involve appropriation in the
strict sense because the money had been already set
apart from the public treasury by Congress through
the GAAs. In such actions, the Executive did not usurp
the power vested in Congress under Section 29(1),
Article VI of the Constitution.
Section 25(5), Article VI of the Constitution
39
25. Section 25(5) of Article VI provides:
“No law shall be passed authorizing any transfer of
appropriations; however, the President, the President
of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment
any item in the general appropriations law for their
respective offices from savings in other items of their
respective appropriations.” (emphasis and
underscoring supplied)
26. We should interpret Section 25(5), in the context
of a limitation on the President’s discretion over the
appropriations during the Budget Execution Phase
27. The transfer of appropriated funds, to be valid
under Section 25(5), must be made upon a
concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the
President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the heads of the Constitutional
Commissions to transfer funds within their respective
offices;
(2) The funds to be transferred are savings generated
from the appropriations for their respective offices;
and
(3) The purpose of the transfer is to augment an item
in the general appropriations law for their respective
offices.
First requisite (GAAs of 2011 and 2012 lacked
valid provisions to authorize transfers of funds
under the DAP; hence, transfers under the DAP
were unconstitutional)
28. Section 25(5), not being a self-executing
provision of the Constitution, must have an
implementing law for it to be operative. That law,
generally, is the GAA of a given fiscal year. To comply
with the first requisite, the GAAs should expressly
authorize the transfer of funds.
29. The relevant provisions in the 2011 and 2012 GAA
which were cited as basis by the DBM for the transfer
of funds provides:
“the President xxx hereby authorized to augment any
item in this Act from savings in other items of their
respective appropriations.”
30. The provision of the GAAs of 2011 and 2012 were
textually unfaithful to the Constitution for not carrying
the phrase “for their respective offices” contained in
Section 25(5). The impact of the phrase “for their
respective offices” was to authorize only transfers of
funds within their offices (i.e., in the case of the
President, the transfer was to an item of appropriation
within the Executive). The provisions carried a
different phrase (“to augment any item in this Act”),
and the effect was that the 2011 and 2012 GAAs
thereby literally allowed the transfer of funds from
savings to augment any item in the GAAs even if the
item belonged to an office outside the Executive. To
that extent the 2011 and 2012 GAAs contravened the
Constitution. At the very least, the aforequoted
provisions cannot be used to claim authority to
transfer appropriations from the Executive to another
branch, or to a constitutional commission.
Second requisite (There were no savings from
which funds could be sourced for the DAP)
31. Savings should be actual. The court construes
savings strictly against expanding the scope of the
power to augment. The power to augment was to be
used only when the purpose for which the funds had
been allocated were already satisfied, or the need for
such funds had ceased to exist, for only then could
savings be properly realized. This interpretation
prevents the Executive from unduly transgressing
Congress’ power of the purse.
32. Unreleased appropriations and withdrawn
unobligated allotments under the DAP were not
savings, and the use of such appropriations
contravened Section 25(5), Article VI of the 1987
Constitution.
33. Unreleased appropriations refer to appropriations
with allotments but without disbursement authority.
34. The balances of appropriations that remained
unexpended at the end of the fiscal year were to be
reverted to the General Fund. This was the mandate
of Section 28, Chapter IV, Book VI of the
Administrative Code. The Executive could not
circumvent this provision by declaring unreleased
40
appropriations and unobligated allotments as savings
prior to the end of the fiscal year.
Third requisite (No funds from savings could be
transferred under the DAP to augment deficient
items not provided in the GAA)
35. It appears that the “savings” pooled under the
DAP were allocated to PAPs that were not covered by
any appropriations in the pertinent GAAs. Any PAP
requiring expenditure that did not receive any
appropriation under the GAAs could only be a new
PAP, any funding for which would go beyond the
authority laid down by Congress in enacting the GAAs.
36. Although the Executive was authorized to spend in
line with its mandate to faithfully execute the laws
(which included the GAAs), such authority did not
translate to unfettered discretion that allowed the
President to substitute his own will for that of
Congress. He was still required to remain faithful to
the provisions of the GAAs, given that his power to
spend pursuant to the GAAs was but a delegation to
him from Congress. Verily, the power to spend the
public wealth resided in Congress, not in the
Executive.
Third requisite (Cross border augmentations
from savings were prohibited by the
Constitution)
37. By providing that the President, the President of
the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme
Court, and the Heads of the Constitutional
Commissions may be authorized to augment any item
in the GAA “for their respective offices,” Section 25(5)
has delineated borders between their offices, such
that funds appropriated for one office are pohibited
from crossing over to another office even in the guise
of augmentation of a deficient item or items. Thus, we
call such transfers of funds cross-border transfers or
cross-border augmentations.
38. Cross-border transfers, whether as augmentation,
or as aid, are prohibited under Section 25(5)
39. It appears that DAP funds were transferred to the
COA (P143.7 Million) and House of Representative
(P250 Million) Those transfers of funds, being from
the Executive, constituted cross-border
augmentations.
Impoundment
40. Impoundment refers to a refusal by the President,
for whatever reason, to spend funds made available
by Congress. It is the failure to spend or obligate
budget authority of any type. (Philconsa vs Enriquez)
41. The withdrawal of unobligated allotments under
the DAP should not be regarded as impoundment
because it entailed only the transfer of funds, not the
retention or deduction of appropriations.
Sourcing the DAP from unprogrammed funds
despite the original revenue targets not having
been exceeded was invalid
42. The unprogrammed funds were treated as
separate sources of funds. Even so, the release and
use of the unprogrammed funds were still subject to
restrictions for the GAAs precisely specified the
instances when the unprogrammed funds could be
released and the purposes for which they could be
used.
43. Unprogrammed appropriations are appropriations
that provided standby authority to incur additional
agency obligations for priority PAPs when revenue
collections exceeded targets, and when additional
foreign funds are generated.
44. Contrary to DBM's claims, the collection of
additional revenues from new sources did not warrant
the release of the unprogrammed funds. Hence, even
if the revenues not considered in the BESFs were
collected or generated, the basic condition that the
revenue collections should exceed the revenue targets
must still be complied with in order to justify the
release of the unprogrammed funds. That there were
additional revenues from sources not considered in
the revenue target would not be enough. The total
revenue collections must still exceed the original
revenue targets to justify the release of the
unprogrammed funds (other than those from newly-
approved foreign loans).
45. The revenue targets should be considered as a
whole, not individually; otherwise, we would be
dealing with artificial revenue surpluses. The
requirement that revenue collections must exceed
revenue target should be understood to mean that the
41
revenue collections must exceed the total of the
revenue targets stated in the BESF.
Equal protection
46. The claim that the Executive discriminated against
some legislators on the ground alone of their receiving
less than the others could not of itself warrant a
finding of contravention of the Equal Protection
Clause. The denial of equal protection of any law
should be an issue to be raised only by parties who
supposedly suffer it, and, in these cases, such parties
would be the few legislators claimed to have been
discriminated against in the releases of funds under
the DAP. The reason for the requirement is that only
such affected legislators could properly and fully bring
to the fore when and how the denial of equal
protection occurred, and explain why there was a
denial in their situation.
Public accountability
47. Anent the principle of public accountability being
transgressed because the adoption and
implementation of the DAP constituted an assumption
by the Executive of Congress’ power of appropriation,
we have already held that the DAP and its
implementing issuances were policies and acts that
the Executive could properly adopt and do in the
execution of the GAAs to the extent that they sought
to implement strategies to ramp up or accelerate the
economy of the country.
Doctrine of Operative Fact
48. The doctrine of operative fact recognizes the
existence of the law or executive act prior to the
determination of its unconstitutionality as an operative
fact that produced consequences that cannot always
be erased, ignored or disregarded. In short, it nullifies
the void law or executive act but sustains its effects. It
provides an exception to the general rule that a void
or unconstitutional law produces no effect. But its use
must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate
an unconstitutional law or executive act, but is
resorted to only as a matter of equity and fair play. It
applies only to cases where extraordinary
circumstances exist, and only when the extraordinary
circumstances have met the stringent conditions that
will permit its application.
49. The doctrine of operative fact applicable to the
adoption and implementation of the DAP. The doctrine
of operative fact extends to a void or unconstitutional
executive act. The term executive act is broad enough
to include any and all acts of the Executive, including
those that are quasi-legislative and quasi-judicial in
nature. The term ‘executive act’ is broad enough to
encompass decisions of administrative bodies and
agencies under the executive department which are
subsequently revoked by the agency in question or
nullified by the Court.(Hacienda Luisita, Inc. v.
Presidential Agrarian Reform Council, G.R.
50. The doctrine of operative fact can apply only to
the PAPs that can no longer be undone, and whose
beneficiaries relied in good faith on the validity of the
DAP, but cannot apply to the authors, proponents and
implementors of the DAP, unless there are concrete
findings of good faith in their favor by the proper
tribunals determining their criminal, civil,
administrative and other liabilities
11. Case Summary
Belgica v. Executive Secretary Ochoa (2013)
G.R. No. 208566 | 2013-11-19
Subject:
Justiciable Controversy, Ripeness for Adjudication,
Political Question, Locus Standi, Res Judicata, Stare
Decisis, Pork Barrel, Congressional Pork Barrel,
Presidential Pork Barrel, Mandamus, Right to
Information, SARO, Operative Fact Doctrine
Facts:
Before the Court are consolidated petitions, taken
under Rule 65 of the Rules of Court, all of which assail
the constitutionality of the Pork Barrel System.
Pork Barrell refers to an appropriation of government
spending meant for localized projects and secured
solely or primarily to bring money to a representative's
district.In the Philippines, the “pork barrel” has been
commonly referred to as lump-sum, discretionary
funds of Members of the Legislature, although, its
usage would evolve in reference to certain funds of
the President such as the Malampaya Funds and the
Presidential Social Fund.
The Malampaya Funds was a special fund created
42
under PD 910 issued by then President Ferdinand E.
Marcos for the development of indigenous energy
resources vital to economic growth.
The Presidential Social Fund is sourced from the share
of the government in the aggregate gross earnings of
PAGCORthrough which the President provides direct
assistance to priority programs and projects not
funded under the regular budget.
In 1996, an anonymous source later identified as
Former Marikina City Romeo Candazo revealed that
huge sums of government money went into the
pockets of legislators as kickbacks.
in 2004, several concerned citizens sought the
nullification of the PDAF for being unconstitutional.
Unfortunately, for lack of any pertinent evidentiary
support that illegal misuse of PDAF in the form of
kickbacks has become a common exercise of
unscrupulous Members of Congress, the petition was
dismissed.
In July 2013, NBI began its probe into allegations that
“the government has been defrauded of some P10
Billion over the past 10 years by a syndicate using
funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects.”
The investigation was spawned by sworn affidavits of
six whistle-blowers who declared that JLN Corporation
(stands for Janet Lim Napoles) had facilitated the
swindling of billions of pesos from the public coffers
for “ghost projects” using no fewer than 20 dummy
non-government organizations for an entire decade.
In August 2013, the Commission on Audit released
report revealing substantial irregularities in the
disbursement and utilization of PDAF by the
Congressmen during the Arroyo administration.
As for the 'Presidential Pork Barrel', whistle-blowers
alleged that "at least P900 Million from royalties in the
operation of the Malampaya gas project off Palawan
province intended for agrarian reform beneficiaries
has gone into a dummy NGO.
Spurred in large part by the findings contained in the
CoA Report and the Napoles controversy, several
petitions were lodged before the Court similarly
seeking that the Pork Barrel System be declared
unconstitutional
Held:
I. Procedural issues
Justiciable Controversy
1. By virtue of Section 1, Article VIII of the 1987
Constitution, judicial power operates only when there
is an actual case or controversy.
2. Jurisprudence provides that an actual case or
controversy is one which involves a conflict of legal
rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from
a hypothetical or abstract difference or dispute.
3. The Court finds that there exists an actual and
justiciable controversy in these cases. The
requirement of contrariety of legal rights is clearly
satisfied by the antagonistic positions of the parties on
the constitutionality of the Pork Barrel System. Also,
the challenged funds and the provisions allowing for
their utilization – such as the 2013 GAA for the PDAF,
PD 910 for the Malampaya Funds and PD 1869 for the
Presidential Social Fund – are currently existing and
operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the
unconstitutional use of these public funds.
Ripeness for Adjudication
4. Related to the requirement of an actual case or
controversy is the requirement of ripeness, meaning
that the questions raised for constitutional scrutiny are
already ripe for adjudication. A question is ripe for
adjudicationwhen the act being challenged has had a
direct adverse effect on the individual challenging it. It
is a prerequisite that something had then been
accomplished or performed by either branch before a
court may come into the picture, and the petitioner
must allege the existence of an immediate or
threatened injury to itself as a result of the challenged
action
5. The cases at present have not become moot. A
case becomes moot when there is no more actual
controversy between the parties or no useful purpose
can be served in passing upon the merits.
6. The Court observes that respondents‘ proposed
line-item budgeting scheme would not terminate the
43
controversy since said reform is geared towards the
2014 budget, and not the 2013 PDAF Article which,
being a distinct subject matter, remains legally
effective and existing.
7. Neither will the President‘s declaration that he had
already abolished the PDAF render the issues on PDAF
moot precisely because the Executive branch of
government has no constitutional authority to nullify
or annul its legal existence. By constitutional design,
the annulment or nullification of a law may be done
either by Congress, through the passage of a
repealing law, or by the Court, through a declaration
of unconstitutionality
8. Moreover, the Court will decide cases, otherwise
moot, if: (a) there is a grave violation of the
Constitution; (b) the exceptional character of the
situation and the paramount public interest is
involved; (c) when the constitutional issue raised
requires formulation of controlling principles to guide
the bench, the bar, and the public; (d) the case is
capable of repetition yet evading review. All the four
exceptions are applicable in this case.
Political Question
9. The issues raised before the Court do not present
political but legal questions which are within its
province to resolve. A political question refers to
those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity,
or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch
of the Government. It is concerned with issues
dependent upon the wisdom, not legality, of a
particular measure.
10. The intrinsic constitutionality of the “Pork Barrel
System” is not an issue dependent upon the wisdom
of the political branches of government but rather a
legal one which the Constitution itself has commanded
the Court to act upon. More importantly, the present
Constitution has not only vested the Judiciary the right
to exercise judicial power but essentially makes it a
duty to proceed therewith under the expanded
concept of judicial power under Section1, Article 8 of
the 1987 Constitution
Locus Standi
11. Unless a person is injuriously affected in any of his
constitutional rights by the operation of statute or
ordinance, he has no standing.
12. Petitioners, as taxpayers, possess the requisite
standing to question the validity of the existing Pork
Barrel System under which the taxes they pay have
been and continue to be utilized. They are bound to
suffer from the unconstitutional usage of public funds.
13. Moreover, as citizens, petitiones have equally
fulfilled the standing requirement given that the issues
they have raised may be classified as matters of
transcendental importance, of overreaching
significance to society, or of paramount public interest
Res Judicata (does not apply)
14. Res judicata means “a matter adjudged”. The
focal point of res judicata is the judgment.The res
judicata principle states that a judgment on the merits
in a previous case rendered by a court of competent
jurisdiction would bind a subsequent case if, between
the first and second actions, there exists an identity of
parties, of subject matter, and of causes of action.
15. The res judicata principle cannot apply in this
case. The required identity is not present since
Philconsa and LAMP, respectively, involved
constitutional challenges against the 1994 CDF Article
and 2004 PDAF Article, whereas the cases at bar call
for a broader constitutional scrutiny of the entire Pork
Barrel System. Also, the ruling in LAMP is essentially a
dismissal based on a procedural technicality – and,
thus, hardly a judgment on the merits.
Stare Decisis (does not apply)
16. Stare decisis non quieta et movere (or simply,
stare decisis) means “follow past precedents and do
not disturb what has been settled”. The focal point of
stare decisis is the doctrine created. The stare decisis
principle, entrenched under Article 8 of the Civil Code,
evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be
doctrinally applied to those that follow if the facts are
substantially the same, even though the parties may
be different. It proceeds from the first principle of
justice that, absent any powerful countervailing
considerations, like cases ought to be decided alike.
17. The Philconsa resolution was a limited response to
44
a separation of powers problem, specifically on the
propriety of conferring post-enactment identification
authority to Members of Congress. On the contrary,
the present cases call for a more holistic examination
of the entire Pork Barrel System. The complexity of
the issues and the broader legal analyses herein
warranted may be, therefore, considered as a
powerful countervailing reason against a wholesale
application of the stare decisis principle.
18. In addition, the Court observes that the Philconsa
ruling was actually riddled with inherent constitutional
inconsistencies which similarly countervail against a
full resort to stare decisis.
19. As for LAMP, suffice it to restate that the said case
was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine susceptible
of current application to the substantive issues in
these cases.
II. Substantive issues
Pork Barrel System
20. The Court defines the Pork Barrel System as the
collective body of rules and practices that govern the
manner by which lump-sum, discretionary funds,
primarily intended for local projects, are utilized
through the respective participations of the Legislative
and Executive branches of government, including its
members.
21. The Pork Barrel System involves two (2) kinds of
lump-sum discretionary funds:
(a) Congressional Pork Barrel-- a kind of lump-sum,
discretionary fund wherein legislators, either
individually or collectively organized into committees,
are able to effectively control certain aspects of the
fund’s utilization through various post-enactment
measures and/or practices.
(b) Presidential Pork Barrel-- a kind of lump-sum,
discretionary fund which allows the President to
determine the manner of its utilization.
Constitutionality of the Congressional Pork
Barrel
22. The Supreme Court declared that the Priority
Development Assistance Fund (PDAF) and its
predecessor, the Countrywide Development Fund
(CDF) are unconstitutional.
23. The Supreme Court declared the Pork Barrel
System as unconstitutional on the following
grounds:
(a) Separation of Powers. Under the 2013 PDAF
Article, legislators have been authorized to participate
in “the various operational aspects of budgeting,”
including “the evaluation of work and financial plans
for individual activities” and the “regulation and
release of funds”, in violation of the separation of
powers principle. From the moment the law becomes
effective, any provision of law that empowers
Congress or any of its members to play any role in the
implementation or enforcement of the law violates the
principle of separation of powers and is thus
unconstitutional.
(b) Non-delegability of legislative power. The power to
appropriate is lodged in Congress and must be
exercised only through legislation, pursuant to Section
29(1), Article VI of the 1987 Constitution. Insofar as
the 2013 PDAF Article has conferred unto legislators
the power of appropriation by giving them personal,
discretionary funds from which they are able to fund
specific projects which they themselves determine, it
has violated the principle of non-delegability of
legislative power;
(c) Checks and balances. Even without its post-
enactment legislative identification feature, the 2013
PDAF Article would remain constitutionally flawed
since the lump-sum amount of P24.79 Billion would be
treated as a mere funding source allotted for multiple
purposes of spending. This setup connotes that the
appropriation law leaves the actual amounts and
purposes of the appropriation for further
determination and, therefore, does not readily indicate
a discernible item which may be subject to the
President’s power of item veto.
Insofar as it has created a system of budgeting
wherein items are not textualized into the
appropriations bill, it has flouted the prescribed
procedure of presentment and, in the process, denied
the President the power to veto items
(d) Public Accountability. To a certain extent, the
conduct of oversight would be tainted as said
legislators, who are vested with post-enactment
45
authority, would, in effect, be checking on activities in
which they themselves participate. Also, this very
same concept of post-enactment authorization runs
afoul of Section 14, Article VI of the 1987 Constitution.
Allowing legislators to intervene in the various phases
of project implementation renders them susceptible to
taking undue advantage of their own office.
(e) Political dynasty. Section 26, Article II of the 1987
Constitution is considered as not self-executing due to
the qualifying phrase “as may be defined by law.” In
this respect, said provision does not, by and of itself,
provide a judicially enforceable constitutional right but
merely specifies a guideline for legislative or executive
action.
(f) Local autonomy. The gauge of PDAF and CDF
allocation/division is based solely on the fact of office,
without taking into account the specific interests and
peculiarities of the district the legislator represents. As
a result, a district representative of a highly-urbanized
metropolis gets the same amount of funding as a
district representative of a far-flung rural province
which would be relatively “underdeveloped” compared
to the former. This concept of legislator control
underlying the CDF and PDAF conflicts with the
functions of the various Local Development Councils
(LDCs).
Insofar as it has authorized legislators, who are
national officers, to intervene in affairs of purely local
nature, despite the existence of capable local
institutions, it has likewise subverted genuine local
autonomy.
Constitutionality of the Presidential Pork Barrel
24. While the designation of a determinate or
determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the
appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making
authority to the Executive either for the purpose of (a)
filling up the details of the law for its enforcement,
known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual
operation, referred to as contingent rule-making.
25. The phrase “and for such other purposes as may
be hereafter directed by the President” under Section
8 of PD 910 constitutes an undue delegation of
legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits
of the President’s authority with respect to the
purpose for which the Malampaya Funds may be used.
As it reads, the said phrase gives the President wide
latitude to use the Malampaya Funds for any other
purpose he may direct and, in effect, allows him to
unilaterally appropriate public funds beyond the
purview of the law.
26. Hence, insofar as it has conferred to the President
the power to appropriate funds intended by law for
energy-related purposes only to other purposes he
may deem fit as well as other public funds under the
broad classification of “priority infrastructure
development projects”, it has transgressed the
principle of non-delegability.
Previous Rulings on PDAF/CDF
27. In Philconsa v. Enriquez, G.R. No. 113105, August
19, 1994, the Supreme Court upheld the
constitutionality of the then known Countrywide
Development Fund (CDF). The petitioners in the said
case claimed that the power given to the members of
Congress to propose and identify the projects and
activites to be funded by the CDF is an encroachment
by the legislature on executive power. They argued
that the proposal and identification of the projects do
not involve the making of laws or the repeal and
amendment thereof which is the only function given to
the Congress by the Constitution.
The Supreme Court held that the power of
appropriation carries with it the power to specify the
project or activity to be funded under the
appropriation law. It can be as detailed and as broad
as Congress wants it to be. The CDF is explicit that it
shall be used "for infrastructure, purchase of
ambulances and computers and other priority projects
and activities and other credit facilities to qualified
beneficiaries..." It was Congress itself that determined
the purposes for the appropriation. On the other hand,
the Executive was responsive for the implementation
of the priority projects specified in the law. The
Supreme Court emphasized that the authority given to
the members of Congress is only to propose and
identify projects to be implemented by the President.
Under the GAA of 1994, the President must examine
whether the proposals submitted by the members of
Congress fall within the specific items of expenditures
for which the CDF was set up, and if qualified, the
President next determines whether they are in line
46
with other projects planned for the locality.
Thereafter, if the proposed projects qualify for
funding, it is the President who shall implement
them. The proposals and identifications made by the
members of Congress are merely recommendatory.
In addition, the Supreme Court stated that the CDF is
a recognition that individual members of Congress, far
more than the President and their congressional
colleagues are likely o be knowledgeable about the
needs of their respective constituents and the priority
to be given to each project.
28. In Sarmiento v. Treasurer, G.R. Nos. 125680 &
126313, September 4, 2001, the petitioners
questioned the constitutionality of the CDF under the
GAA of 1996. Seeking the reversal of Philconsa v.
Enriquez, the petitioners alleged that the proposal and
identification of projects by members of Congress
were not merely recommendatory considering that
requests for releases of funds under the CDF are
automically released. The Solicitor General argued that
since the questioned provision is basically the same
provision found in the 1994 GAA held as constitutional
by the Supreme Court in Philconsa v. Enriquez, the
instant case should be resolved in the same manner,
following the principle of stare decisis.
The Supreme Court upheld the constitutionality
of the CDF under the 1996 GAA.
29. In League Against Monopoly and Poverty (LAMP)
v. Secretary of Budget and Management, G.R.
164987, April 21, 2012, petitioners assailed the
constitutionality and legality of the implementation of
the Priority Development Assistance Fund (PDAF) as
provided for in the GAA of 2004. According to the
petitioners, the provision in the GAA as regards the
PDAF is silent and therefore prohibits an automatic
allocation of lump sums to individual senators and
congressmen for funding of projects. It does not give
the individual members of Congress the mandate to
propose, select and identify programs and projects to
be funded out of PDAF. The petitioners submitted that
such a situation violates the principle of separation of
powers because in receiving and thereafter spending
funds for their chosen projects, the members of
Congress in effect intruded into an executive function.
Further, the authority to propose and select projects
does not pertain to legislation. It is, in fact, a non-
legislative function devoid of constitutional sanction
and therefore impermissible and must be considered
nothing less than malfeasance.
The Supreme Court upheld the constitutionality of the
PDAF. The Court stated that no convincing proof was
presented showing that, indeed there were direct
releases of funds to members of Congresss, who
actually spent them according to their sole discretion.
Not even a documentation of the disbursement of
funds by the DBM in favor of the members of Congres
was presented by the petitioner to convince the Court
to probe into the truth of their claims. The Court
further stated that the authority granted to members
of Congress to propose and select projects was
already upheld in Philconsa v. Enriquez, and there is
no need to review or reverse the pronouncements
made in said case so long as there is no showing of a
direct participation of legislators in the actual spending
of the budget.
Mandamus
30. Petitioners prayed that the Executive Secretary
and/or the Department of Budget and Management be
ordered to provide the public and the Commission on
Audit complete lists/schedules or detailed reports
related to the availments and utilization of the PDAF
and Malampaya funds.
31. Petitioners‘ prayer was grounded on Section 28,
Article II (policy of full public disclosure) and Section
7, Article III (right of the people to information on
matters of public concern) of the 1987 Constitution.
32. The court denied the prayer of petitioner on
procedural grounds. The proper remedy to invoke the
right to information is to file a petition for mandamus.
Citing Legaspi vs CSC: “ the duty to disclose the
information of public concern, and to afford access to
public records cannot be discretionary on the part of
said agencies. Xxx The constitutional duty, not being
discretionary, its performance may be compelled by a
writ of mandamus in a proper case”
33. Moreover, in the case of Valmonte v. Belmonte Jr.,
it has been clarified that the right to information does
not include the right to compel the preparation of lists,
abstracts, summaries and the like. In the same case,
it was stressed that it is essential that the applicant
has a well defined, clear and certain legal right to the
thing demanded and that it is the imperative duty of
defendant to perform the act required. Hence, without
47
the foregoing substantiations, the Court cannot grant
a particular request for information.
34. In these cases, aside from the fact that none of
the petitions are in the nature of mandamus actions,
the Court finds that petitioners have failed to establish
a "a well-defined, clear and certain legal right" to be
furnished by the Executive Secretary and/or the DBM
of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners
assert any law or administrative issuance which would
form the bases of the latter‘s duty to furnish them
with the documents requested
35. Nevertheless, petitioners are not denied access to
official documents which are already existing and of
public record.
Inclusion of Funds in Budgetary Deliberations
36. The Court also denied petitioners' prayer to order
the inclusion of the subject funds in the budgetary
deliberations of Congress as the same is a matter left
to the prerogative of the political branches of
government.
TRO Enjoining Release of Remaining PDAF
37. In response to the Court‘s September 10, 2013
TRO that enjoined the release of the remaining PDAF
allocated for the year 2013, the DBM issued Circular
2013-8 which authorized the continued
implementation and disbursement of PDAF funds as
long as they are: (a) covered by a Special Allotment
Release Order (SARO); and (b) that said SARO had
been obligated by the implementing agency concerned
prior to the issuance of the Court‘s September 10,
2013 TRO.
38. As to the issue of lifting the TRO, the present
decision has rendered it moot and academic. The
unconstitutionality of the 2013 PDAF Article as
declared herein has the consequential effect of
converting the temporary injunction into a permanent
one. Hence, from the promulgation of this Decision,
the release of the remaining PDAF funds for 2013,
among others, is now permanently enjoined.
39. As to the coverage and application of the TRO, the
Court agreed with the petitioners’ position that "the
issuance of the SARO does not yet involve the release
of funds under the PDAF, as release is only triggered
by the issuance of a Notice of Cash Allocation (NCA).
As such, PDAF disbursements, even if covered by an
obligated SARO, should remain enjoined.
A SARO only evinces the existence of an obligation
and not the directive to pay. Practically speaking, the
SARO does not have the direct and immediate effect
of placing public funds beyond the control of the
disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will
prevent the actual release of funds
40. Thus, unless an NCA has been issued, public funds
should not be treated as funds which have been
"released." In this respect, therefore, the
disbursement of 2013 PDAF funds which are only
covered by obligated SAROs, and without any
corresponding NCAs issued, must, at the time of this
Decision’s promulgation, be enjoined and
consequently reverted to the unappropriated surplus
of the general fund
Operative Fact Doctrine
41. the Court‘s pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its
Special Provisions, (b) all other Congressional Pork
Barrel provisions similar thereto, and (c) the phrases
(1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910,
and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869,
as amended by PD 1993, must only be treated as
prospective in effect in view of the operative fact
doctrine.
42. The operative fact doctrine exhorts the recognition
that until the judiciary, in an appropriate case,
declares the invalidity of a certain legislative or
executive act, such act is presumed constitutional and
thus, entitled to obedience and respect and should be
properly enforced and complied with.
12. Case Summary
Civil Liberties Union v. Executive Secretary
G.R. No. 83896 | 1991-02-22
Subject:
Constitutional Prohibition on Holding Multiple Offices;
Positions held in Ex-Officio capacity; De Facto Officers;
Statutory Construction of Constitutional Prohibitions
48

Facts:
(Former) President Corazon Aquino issued Executive
Order No. 284, allowing appointive officials of the
Executive Department (members of the Cabinet, their
undersecretaries and assistant secretaries) to hold, in
addition to his primary position, not more than two
positions in the government and government
corporations and receive the corresponding
compensation therefor.
The constitutionality of Executive Order No. 284 is
being challenged by petitioners on the principal
submission that it adds exceptions to Section 13,
Article VII other than those provided in the
Constitution.
Petitioners further argue that the exception to the
prohibition in Section 7, par. (2), Article IX-B on the
Civil Service Commission applies to officers and
employees of the Civil Service in general and that said
exceptions do not apply and cannot be extended to
Section 13, Article VII which applies specifically to the
President, Vice-President, Members of the Cabinet and
their deputies or assistants.
Held:
Constitutionality of EO 284
1. By ostensibly restricting the number of positions
that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary
position to not more than two positions in the
government and government corporations, EO 284
actually allows them to hold multiple offices or
employment in direct contravention to the express
mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless
otherwise provided in the 1987 Constitution itself.
Constitutional Prohibition on Holding Multiple
Offices
2. The prohibition imposed on the President and his
official family is all-embracing and covers both public
and private office or employment.
3. It is quite notable that in all Constitutional
provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or
employment in the government and government-
owned or controlled corporations or their subsidiaries.
In striking contrast is the wording of Section 13,
Article VII which states that “(T)he President, Vice-
President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or
employment during their tenure.”
4. These sweeping, all-embracing prohibitions
imposed on the President and his official family, which
prohibitions are not similarly imposed on other public
officials or employees such as the Members of
Congress, members of the civil service in general and
members of the armed forces, are proof of the intent
of the 1987 Constitution to treat the President and his
official family as a class by itself and to impose upon
said class stricter prohibitions.
5. While all other appointive officials in the civil service
are allowed to hold other office or employment in the
government during their tenure when such is
allowed by law or by the primary functions of their
positions,members of the Cabinet, their deputies and
assistants may do so only when expressly authorized
by the Constitution itself.
6. In other words, Section 7, Article IX-B is meant
to lay down the general rule applicable to all elective
and appointive public officials and employees,
while Section 13, Article VII is meant to be
the exception applicable only to the President, the
Vice-President, Members of the Cabinet, their deputies
and assistants.
Exception to Prohibition on Multiple Offices
7. The prohibition under Section 13, Article VII is not
to be interpreted as covering positions held without
additional compensation in ex-officio capacities as
provided by law and as required by the primary
functions of the concerned official's office, namely:
(a)the Vice-President being appointed as a member of
the Cabinet under Section 3, par. (2), Article VII; or
(b) the Vice-President acting as President in those
instances provided under Section 7, pars. (2) and (3),
Article VII;
(c) the Secretary of Justice being ex-officio member of
49
the Judicial and Bar Council by virtue of Section 8 (1),
Article VIII.
8. The term ex-officio means "from office; by virtue of
office." It refers to an "authority derived from official
character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position."
9. An ex-officio member of a board is one who is a
member by virtue of his title to a certain office,
and without further warrant or appointment. To
illustrate, by express provision of law, the Secretary of
Transportation and Communications is the ex-officio
Chairman of the Board of the Philippine Ports
Authority, and the Light Rail Transit Authority.
De Facto Officers
10. During their tenure in the questioned positions,
respondents may be considered de facto officers and
as such entitled to emoluments for actual services
rendered.
11. It has been held that “in cases where there is
no de jure, officer, a de facto officer, who, in good
faith has had possession of the office and has
discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in
an appropriate action recover the salary, fees and
other compensations attached to the office.
12. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public
should benefit by the services of an
officer de facto and then be freed from all liability to
pay any one for such services.
13. Any per diem, allowances or other emoluments
received by the respondents by virtue of actual
services rendered in the questioned positions may
therefore be retained by them.
Statutory Construction
14. The qualifying phrase "unless otherwise provided
in this Constitution" in Section 13, Article VII cannot
possible refer to the broad exceptions provided under
Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as such would render
nugatory and meaningless the manifest intent and
purpose of the framers of the Constitution to impose a
stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants
with respect to holding other offices or employment in
the government during their tenure.
15. Respondents' interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7,
par. (2) of Article IX-B would obliterate the distinction
so carefully set by the framers of the Constitution as
to when the high-ranking officials of the Executive
Branch from the President to Assistant Secretary, on
the one hand, and the generality of civil servants from
the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office
or position in the government during their tenure.
16. The Court in construing a constitution should bear
in mind the object sought to be accomplished by its
adoption and the evils if any sought to be prevented
or remedied. A doubtful provision will be examined in
the light of the history of the times and the condition
and circumstances under which the Constitution was
framed.
17. Moreover, it is a well-established rule in
constitutional construction that no one provision of the
Constitution is to be separated from all the others, to
be considered alone, but that all the provisions
bearing upon a particular subject are to be brought
into view and to be so interpreted as to effectuate the
great purposes of the instrument. Sections bearing on
a particular subject should be considered and
interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
18. In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction
which will render every word operative, rather than
one which may make the words idle and nugatory
19. Moreover, wherever the language used in the
constitution is prohibitory, it is to be understood as
intended to be a positive and unequivocal negation.
The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to
refer only to those particular instances cited in the
Constitution itself.
13. Case Summary
50
Datu Michael Abas Kida vs. Senate of the
Philippines (2012)
G.R. No.
196271/196305/197221/197280/197282/197392/1974
54 | 2012-02-28
Subject: Synchronization mandate for national and
local elections includes ARMM elections; Autonomous
regions like the ARMM are classified as local
governments; Elections held in autonomous regions
are considered as local elections; R.A. No. 10153 does
not amend R.A. No. 9054; Supermajority vote
requirement makes RA No. 9054 an irrepealable law
which is constitutionally prohibited; Not every
amendment to the ARMM Organic Act requires
ratification by means of a plebiscite (The plebiscite
requirement in RA No. 9054 is overly broad and
therefore unconstitutional); Congress has no authority
to extend the three-year term limit by inserting a
holdover provision in RA No. 9054; COMELEC has no
authority to hold special elections; President’s power
to appoint OICs under RA 10153 covers both
appointive and elective positions in the ARMM; Power
to appoint OICs is not incompatible with the
President’s power of supervision over local
governments and autonomous regions; RA No. 10153
is an interim measure; Executive is not bound by the
principle of judicial courtesy
Facts:
On October 18, 2011, the Supreme Court issued a
Decision where it upheld the constitutionality of
Republic Act No. 10153.
Pursuant to the constitutional mandate of
synchronization, RA 10153 postponed the regional
elections in the Autonomous Region in Muslim
Mindanao (ARMM) (which were scheduled to be held
on the second Monday of August 2011) to the second
Monday of May 2013 and recognized the President’s
power to appoint officers-in-charge (OICs) to
temporarily assume these positions upon the
expiration of the terms of the elected officials.
Hence, the present motions for reconsideration filed
by petitioners. The motions raise the following
questions:
(a) Does the Constitution mandate the synchronization
of ARMM regional elections with national and local
elections?
(b) Does RA No. 10153 amend RA No. 9054? If so,
does RA No. 10153 have to comply with the
supermajority vote and plebiscite requirements?
(c) Is the holdover provision in RA No. 9054
constitutional?
(d) Does the COMELEC have the power to call for
special elections in ARMM?
(e) Does granting the President the power to appoint
OICs violate the elective and representative nature of
ARMM regional legislative and executive offices?
(f) Does the appointment power granted to the
President exceed the President’s supervisory powers
over autonomous
Held:
Synchronization mandate for national and local
elections includes ARMM elections
1. While the Constitution does not expressly instruct
Congress to synchronize the national and local
elections, the intention can be inferred from the
provisions of the Transitory Provisions (Article XVIII)
of the Constitution, particularly Sec 1, 2 and 5. The
court came to the same conclusion in Osmeña v.
Commission on Elections, where the court
unequivocally stated that “the Constitution has
mandated synchronized national and local elections.
2. That the ARMM elections were not expressly
mentioned in the Transitory Provisions of the
Constitution on synchronization cannot be interpreted
to mean that the ARMM elections are not covered by
the constitutional mandate of synchronization. We
have to consider that the ARMM, as we now know it,
had not yet been officially organized at the time the
Constitution was enacted and ratified by the people.
Keeping in mind that a constitution is not intended to
provide merely for the exigencies of a few years but is
to endure through generations for as long as it
remains unaltered by the people as ultimate
sovereign, a constitution should be construed in the
light of what actually is a continuing instrument to
govern not only the present but also the unfolding
events of the indefinite future. Although the principles
embodied in a constitution remain fixed and
unchanged from the time of its adoption, a
51
constitution must be construed as a dynamic process
intended to stand for a great length of time, to be
progressive and not static.
Autonomous regions like the ARMM are
classified as local governments
3. Article X of the Constitution, entitled “Local
Government,” clearly shows the intention of the
Constitution to classify autonomous regions, such as
the ARMM, as local governments. Section 1 of Article
X provides:
Section 1. The territorial and political subdivisions of
the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
4. The inclusion of autonomous regions in the
enumeration of political subdivisions of the State
under the heading “Local Government” indicates quite
clearly the constitutional intent to
consider autonomous regions as one of the forms of
local governments.
5. That the Constitution mentions only the “national
government” and the “local governments,” and does
not make a distinction between the “local
government” and the “regional government,” is
particularly revealing, betraying as it does the
intention of the framers of the Constitution to consider
the autonomous regions not as separate forms of
government, but as political units which, while having
more powers and attributes than other local
government units, still remain under the category of
local governments.
Elections held in autonomous regions are
considered as local elections
6. The petitioners argue that the ARMM elections are
not covered by the synchronization mandate since
they are regional elections and not local elections.
7. Since autonomous regions are classified as local
governments, it follows that elections held in
autonomous regions are also considered as local
elections.
8. In construing provisions of the Constitution, the
first rule is verba legis, “that is, wherever possible,
the words used in the Constitution must be given their
ordinary meaning except where technical terms are
employed.” Applying this principle to determine the
scope of “local elections,” we refer to the meaning of
the word “local,” as understood in its ordinary sense.
As defined in Webster’s Third New International
Dictionary Unabridged, “local” refers to something
“that primarily serves the needs of a particular limited
district, often a community or minor political
subdivision.” Obviously, the ARMM elections, which
are held within the confines of the autonomous region
of Muslim Mindanao, fall within this definition.
9. To be sure, the fact that the ARMM possesses
more powers than other provinces, cities, or
municipalities is not enough reason to treat the ARMM
regional elections differently from the other local
elections. Ubi lex non distinguit nec nos distinguire
debemus. When the law does not distinguish, we must
not distinguish.
R.A. No. 10153 does not amend R.A. No. 9054
10. Petitioners insist that the provisions of RA No.
10153, in postponing the ARMM elections, amend RA
No. 9054.
11. A thorough reading of RA No. 9054 reveals that it
fixes the schedule for only the first ARMM elections; it
does not provide the date for the succeeding regular
ARMM elections. In fixing the date of the ARMM
elections subsequent to the first election, RA No. 9333
and RA No. 10153 merely filled the gap left in RA No.
9054, and do not change or revise any provision in RA
No. 9054.
12. The clear intention of Congress is to treat
the laws which fix the date of the subsequent ARMM
elections as separate and distinct from the Organic
Acts. Congress only acted consistently with this intent
when it passed RA No. 10153 without requiring
compliance with the amendment prerequisites
embodied in Section 1 and Section 3, Article XVII of
RA No. 9054.
Supermajority vote requirement makes RA No.
9054 an irrepealable law which is
constitutionally prohibited
13. Since RA No. 10153 does not amend, but merely
fills in the gap in RA No. 9054, there is no need for RA
52
No. 10153 to comply with the amendment
requirements set forth in Article XVII of RA No. 9054.
14. Even so, the supermajority vote requirement set
forth in Section 1, Article XVII of RA No. 9054 ( i.e.,
2/3 vote from the House of Representatives and the
Senate, voting separately) is unconstitutional for
violating the principle that Congress cannot pass
irrepealable laws.
15. The power of the legislature to make laws
includes the power to amend and repeal these
laws. Where the legislature, by its own act, attempts
to limit its power to amend or repeal laws, the Court
has the duty to strike down such act for interfering
with the plenary powers of Congress.
16. Every legislative body may modify or abolish the
acts passed by itself or its predecessors. This power of
repeal may be exercised at the same session at which
the original act was passed; and even while a bill is in
its progress and before it becomes a law. This
legislature cannot bind a future legislature to a
particular mode of repeal. It cannot declare in
advance the intent of subsequent legislatures or the
effect of subsequent legislation upon existing
statutes. (see Duarte v. Dade)
17. Under our Constitution, each House of Congress
has the power to approve bills by a mere majority
vote,provided there is quorum. In requiring all laws
which amend RA No. 9054 to comply with a higher
voting requirement (2/3 vote) than what the
Constitution provides, Congress, which enacted RA
No. 9054, clearly violated the very principle
established in Duarte. To reiterate, the act of one
legislature is not binding upon, and cannot tie the
hands of, future legislatures. .
18. One Congress cannot limit or reduce the plenary
legislative power of succeeding Congresses by
requiring a higher vote threshold than what the
Constitution requires to enact, amend or repeal
laws. No law can be passed fixing such a higher vote
threshold because Congress has no power, by
ordinary legislation, to amend the Constitution.
Not every amendment to the ARMM Organic Act
requires ratification by means of a plebiscite
(The plebiscite requirement in RA No. 9054 is
overly broad and therefore unconstitutional)
19. Petitioners' contention that the plebiscite
requirement applies to all amendments of RA No.
9054 is also struck down for being an unreasonable
enlargement of the plebiscite requirement set forth in
the Constitution.
20. Section 18, Article X of the Constitution provides
that “the creation of the autonomous region shall be
effective when approved by majority of the votes cast
by the constituent units in a plebiscite called for the
purpose.”
21. We interpreted this to mean that only
amendments to, or revisions of, the Organic Act
constitutionally-essential to the creation of
autonomous regions – i.e., those aspects specifically
mentioned in the Constitution which Congress must
provide for in the Organic Act – require ratification
through a plebiscite. We stand by this interpretation.
22. For if we were to go by the petitioners’
interpretation of Section 18, Article X of the
Constitution that all amendments to the Organic Act
have to undergo the plebiscite requirement before
becoming effective, this would lead to impractical and
illogical results – hampering the ARMM’s progress by
impeding Congress from enacting laws that timely
address problems as they arise in the region, as well
as weighing down the ARMM government with the
costs that unavoidably follow the holding of a
plebiscite.
23. It is posited that that Sec 3 of RA No. 10153, in
giving the President the power to appoint OICs to take
the place of the elective officials of the ARMM, creates
a fundamental change in the basic structure of the
government, and thus requires compliance with the
plebiscite requirement embodied in RA No. 9054. The
court disagrees. The said provision clearly preserves
the basic structure of the ARMM regional government
when it recognizes the offices of the ARMM regional
government and directs the OICs who shall
temporarily assume these offices to “perform the
functions pertaining to the said offices.”
Congress has no authority to extend the three-
year term limit by inserting a holdover
provision in RA No. 9054
24. Petitioners are one in defending the
constitutionality of Section 7(1), Article VII of RA No.
53
9054, which allows the regional officials to remain in
their positions in a holdover capacity. The petitioners
essentially argue that the ARMM regional officials
should be allowed to remain in their respective
positions until the May 2013 elections since there is no
specific provision in the Constitution which prohibits
regional elective officials from performing their duties
in a holdover capacity.
25. Section 8, Article X of the Constitution provides:
Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined
by law, shall be three years and no such official shall
serve for more than three consecutive terms.
26. The clear wording of Section 8, Article X of the
Constitution expresses the intent of the framers of the
Constitution to categorically set a limitation on the
period within which all elective local officials can
occupy their offices.
27. Elective ARMM officials are also local
officials,thus, they are bound by the three-year term
limit prescribed by the Constitution.
28. It is irrelevant that the Constitution does not
expressly prohibit elective officials from acting in a
holdover capacity. Short of amending the
Constitution, Congress has no authority to extend the
three-year term limit by inserting a holdover provision
in RA No. 9054. Thus, the term of three years for local
officials should stay at three (3) years, as fixed by the
Constitution, and cannot be extended by holdover by
Congress.
29. In the past, the court has recognized the validity
of holdover provisions in various laws. One significant
difference is that while these past cases all refer to
elective barangay or sangguniang kabataan officials
whose terms of office are not explicitly provided for in
the Constitution, the present case refers to local
elective officials - the ARMM Governor, the ARMM Vice
Governor, and the members of the Regional
Legislative Assembly - whose terms fall within the
three-year term limit set by Section 8, Article X of the
Constitution.
30. Even assuming that a holdover is constitutionally
permissible, and there had been statutory basis for it,
the rule of holdover can only apply as an available
option where no express or implied legislative intent
to the contrary exists; it cannot apply where such
contrary intent is evident.
31. Congress, in passing RA No. 10153 in the exercise
of its plenary legislative powers, has clearly acted
within its discretion when it deleted the holdover
option under RA 9054.
COMELEC has no authority to hold special
elections
32. The Constitution has merely empowered the
COMELEC to enforce and administer all laws and
regulations relative to the conduct of an election.
Although the legislature, under the Omnibus Election
Code (Batas Pambansa Bilang (BP) 881), has granted
the COMELEC the power to postpone elections to
another date, this power is confined to the specific
terms and circumstances provided for in the law.
Specifically, both Section 5 and Section 6 of BP 881
address instances where elections have already been
scheduled to take place but do not occur or had to
be suspended because of unexpected and
unforeseen circumstances, such as violence, fraud,
terrorism, and other analogous circumstances.
33. In contrast, the ARMM elections were postponed
by law, in furtherance of the constitutional mandate of
synchronization of national and local elections.
Obviously, this does not fall under any of the
circumstances contemplated by Section 5 or Section 6
of BP 881.
34. More importantly, RA No. 10153 has already fixed
the date for the next ARMM elections and the
COMELEC has no authority to set a different election
date.
35. Even assuming that the COMELEC has the
authority to hold special elections, and this Court can
compel the COMELEC to do so, there is still the
problem of having to shorten the terms of the newly
elected officials in order to synchronize the ARMM
elections with the May 2013 national and local
elections. Obviously, neither the Court nor the
COMELEC has the authority to do this, amounting as it
does to an amendment of Section 8, Article X of the
Constitution, which limits the term of local officials to
three years.
President’s power to appoint OICs under RA
10153 covers both appointive and elective
54
positions in the ARMM
36. It is argued that the President’s power to appoint
pertains only to appointive positions and cannot
extend to positions held by elective officials.
37. The power to appoint has traditionally been
recognized as executive in nature. Section 16, Article
VII of the Constitution describes in broad strokes the
extent of this power, thus:
Section 16. The President shall nominate and, with the
consent of the Commission on Appointments, appoint
the heads of the executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this
Constitution. He shall also appoint all other officers of
the Government whose appointments are not
otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress
may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions,
or boards.
38. While in the 1935 Constitution, the various
appointments the President can make are enumerated
in a singlesentence, the 1987 Constitution enumerates
the various appointments the President is empowered
to make and divides the enumeration
in two sentences. The change in style is significant; in
providing for this change, the framers of the 1987
Constitution clearly sought to make a distinction
between the first group of presidential appointments
and the second group of presidential appointments.
39. The first group of presidential appointments: the
heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
Armed Forces, and other officers whose appointments
are vested in the President by the Constitution,
pertains to the appointive officials who have to be
confirmed by the Commission on Appointments.
40. The second group of officials the President can
appoint are “all other officers of the Government
whose appointments are not otherwise provided for by
law, and those whom he may be authorized by law to
appoint.” The second sentence acts as the “catch-all
provision” for the President’s appointment power, in
recognition of the fact that the power to appoint is
essentially executive in nature. In other words, where
there are offices which have to be filled, but the law
does not provide the process for filling them, the
Constitution recognizes the power of the President to
fill the office by appointment.
41. Any limitation on or qualification to the exercise
of the President’s appointment power should be
strictly construed and must be clearly stated in order
to be recognized. Given that the President derives his
power to appoint OICs in the ARMM regional
government from law, it falls under the classification
of presidentialappointments covered by the second
sentence of Section 16, Article VII of the Constitution.
The President’s appointment power thus rests on clear
constitutional basis.
Power to appoint OICs is not incompatible with
the President’s power of supervision over local
governments and autonomous regions
42. There is no incompatibility between the
President’s power of supervision over local
governments and autonomous regions, and the power
granted to the President to appoint OICs.
43. The power of supervision is defined as “the power
of a superior officer to see to it that lower officers
perform their functions in accordance with law.” This
is distinguished from the power of control or “the
power of an officer to alter or modify or set aside
what a subordinate officer had done in the
performance of his duties and to substitute the
judgment of the former for the latter.
44. The petitioners’ apprehension regarding the
President’s alleged power of control over the OICs is
rooted in their belief that the President’s appointment
power includes the power to remove these officials at
will. However, Section 3 of RA No. 10153 clearly
provides that once the President has appointed the
OICs for the offices of the Governor, Vice Governor
and members of the Regional Legislative Assembly,
these same officials will remain in office until they are
replaced by the duly elected officials in the May 2013
elections. Nothing in this provision even hints that the
President has the power to recall the appointments he
already made.
RA No. 10153 is an interim measure
55

45. Congress enacted RA No. 10153 primarily to heed
the constitutional mandate to synchronize the ARMM
regional elections with the national and local elections.
To do this, Congress had to postpone the scheduled
ARMM elections for another date, leaving it with the
problem of how to provide the ARMM with governance
in the intervening period, between the expiration of
the term of those elected in August 2008 and the
assumption to office – 21 months away – of those
who will win in the synchronized elections on May 13,
2013.
46. In this way, RA No. 10153 is in reality an interim
measure, enacted to respond to the adjustment that
synchronization requires. Given the context, we have
to judge RA No. 10153 by the standard of
reasonableness in responding to the challenges
brought about by synchronizing the ARMM elections
with the national and local elections. In other words,
“given the plain unconstitutionality of providing for a
holdover and the unavailability of constitutional
possibilities for lengthening or shortening the term of
the elected ARMM officials, is the choice of the
President’s power to appoint – for a fixed and specific
period as an interim measure, and as allowed under
Section 16, Article VII of the Constitution – an
unconstitutional or unreasonable choice for Congress
to make?
47. The grant to the President of the power to
appoint OICs in place of the elective members of the
Regional Legislative Assembly is neither novel nor
innovative. The power granted to the President, via
RA No. 10153, to appoint members of the Regional
Legislative Assembly is comparable to the power
granted by BP 881 (the Omnibus Election Code) to the
President to fill any vacancy for any cause in the
Regional Legislative Assembly (then called
the Sangguniang Pampook)
48. While synchronization will temporarily disrupt the
election process in a local community, however, the
adoption of this measure is a matter of necessity in
order to comply with a mandate that the Constitution
itself has set out.
Executive is not bound by the principle of
judicial courtesy
49. Several petitioners question the propriety of the
appointment by the President of Mujiv Hataman as
acting Governor and Bainon Karon as acting Vice
Governor of the ARMM. They argue that since our
previous decision was based on a close vote of 8-7,
and given the numerous motions for reconsideration
filed by the parties, the President, in recognition of the
principle of judicial courtesy, should have refrained
from implementing our decision until we have ruled
with finality on this case.
50. Firstly, the principle of judicial courtesy is based
on the hierarchy of courts and applies only to lower
courts in instances where, even if there is no writ of
preliminary injunction or TRO issued by a higher court,
it would be proper for a lower court to suspend its
proceedings for practical and ethical considerations. In
other words, the principle of “judicial courtesy” applies
where there is a strong probability that the issues
before the higher court would be rendered moot and
moribund as a result of the continuation of the
proceedings in the lower court or court of origin.
Consequently, this principle cannot be applied to the
President, who represents a co-equal branch of
government. To suggest otherwise would be to
disregard the principle of separation of powers, on
which our whole system of government is founded
upon.
51. Secondly, the fact that our previous decision was
based on a slim vote of 8-7 does not, and cannot,
have the effect of making our ruling any less effective
or binding. Regardless of how close the voting is, so
long as there is concurrence of the majority of the
members of the en banc who actually took part in the
deliberations of the case, a decision garnering only 8
votes out of 15 members is still a decision of the
Supreme Court en banc and must be respected as
such. The petitioners are, therefore, not in any
position to speculate that, based on the voting, “the
probability exists that their motion for reconsideration
may be granted.”
52. We agree with the petitioner that the lifting of a
TRO can be included as a subject of a motion for
reconsideration filed to assail our decision. It does not
follow, however, that the TRO remains effective until
after we have issued a final and executory decision.
Unlike in Tolentino v. Secretary of Finance cited by
petitioners, in the present case, we expressly lifted the
TRO issued on September 13, 2011. There is,
therefore, no legal impediment to prevent the
President from exercising his authority to appoint an
56
acting ARMM Governor and Vice Governor as
specifically provided for in RA No. 10153.
14. Case Summary
Pimentel vs. Ermita (2005)
G.R. No. 164978 | 2005-10-13
Subject: Courts will decide a question, even if
rendered moot, if it is capable of repetition yet
evading review; Power to appoint is essentially
executive in nature; Lack of standing of petitioners as
members of Congress; Appointment of department
secretaries in an acting capacity; Acting appointments
cannot exceed one year; Ad-interim appointments vs.
Appointments in an acting capacity
Facts:
The Senate and the House of Representatives
("Congress") commenced their regular session on July
26, 2004. The Commission on Appointments,
composed of Senators and Representatives, was
constituted on August 25, 2004.
Meanwhile, President Arroyo, through Executive
Secretary Eduardo R. Ermita (Secretary Ermita),
issued appointments to respondents
as acting secretaries of their respective departments.
Respondents took their oath of office and assumed
duties as acting secretaries.
On September 8, 2004, Senator Aquilino Q. Pimentel,
Jr., together with other senators, filed the present
petition for certiorari and prohibition to declare
unconstitutional the appointments issued by President
Arroyo to respondents as acting secretaries of their
respective departments.
Congress adjourned on September 22, 2004. On
September 23, 2004, President Arroyo issued ad
interim appointments to respondents as secretaries of
the departments to which they were previously
appointed in an acting capacity.
The petition questions the constitutionality of
President Arroyo's appointment of respondents as
acting secretaries without the consent of the
Commission on Appointments (CoA) while Congress is
in session.
Held:
Courts will decide a question, even if rendered
moot, if it is capable of repetition yet evading
review
1. The Solicitor General argues that the petition is
moot because President Arroyo had extended to
respondentsad interim appointments on 23 September
2004 immediately after the recess of Congress.
2. As a rule, the writ of prohibition will not lie to
enjoin acts already done. However, as an exception to
the rule on mootness, courts will decide a question
otherwise moot if it is capable of repetition yet
evading review. In the present case, the mootness of
the petition does not bar its resolution. The question
of the constitutionality of the President's appointment
of department secretaries in an acting capacity while
Congress is in session will arise in every such
appointment.
Power to appoint is essentially executive in
nature
3. The power to appoint is essentially executive in
nature, and the legislature may not interfere with the
exercise of this executive power except in those
instances when the Constitution expressly allows it to
interfere. Limitations on the executive power to
appoint are construed strictly against the legislature.
The scope of the legislature's interference in the
executive's power to appoint is limited to the power to
prescribe the qualifications to an appointive office.
Congress cannot appoint a person to an office in the
guise of prescribing qualifications to that office.
Neither may Congress impose on the President the
duty to appoint any particular person to an office.
4. Even if the Commission on Appointments is
composed of members of Congress, the exercise of its
powers is executive and not legislative.
The Commission on Appointments does not legislate
when it exercises its power to give or withhold
consent to presidential appointments. The Commission
on Appointments is a creature of the Constitution.
Although its membership is confined to members of
Congress, said Commission is independent of
Congress. The powers of the Commission do not come
from Congress, but emanate directly from the
Constitution. Hence, it is not an agent of Congress. In
fact, the functions of the Commissioner are purely
executive in nature.
Lack of standing of petitioners as members of
57
Congress
5. Considering the independence of the Commission
on Appointments from Congress, it is error for
petitioners to claim standing in the present case as
members of Congress. President Arroyo's issuance of
acting appointments while Congress is in session
impairs no power of Congress.
6. Among the petitioners, only the following are
members of the Commission on Appointments of the
13th Congress: Senator Enrile as Minority Floor
Leader, Senator Lacson as Assistant Minority Floor
Leader, and Senator Angara, Senator Ejercito-Estrada,
and Senator Osmeña as members. Thus, on the
impairment of the prerogatives of members of the
Commission on Appointments, only Senators Enrile,
Lacson, Angara, Ejercito-Estrada, and Osmeña have
standing in the present petition. This is in contrast to
Senators Pimentel, Estrada, Lim, and Madrigal, who,
though vigilant in protecting their perceived
prerogatives as members of Congress, possess no
standing in the present petition.
Appointment of department secretaries in an
acting capacity
7. The essence of an appointment in an acting
capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time
until the appointment of a permanent occupant to the
office. In case of vacancy in an office occupied by
an alter ego of the President, such as the office of a
department secretary, the President must necessarily
appoint an alter ego of her choice as acting
secretary before the permanent appointee of her
choice could assume office.
8. Congress, through a law, cannot impose on the
President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter
ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in
the guise of prescribing qualifications to an office,
cannot impose on the President who her alter
ego should be.
9. The office of a department secretary may become
vacant while Congress is in session. Since a
department secretary is the alter ego of the
President, the acting appointee to the office must
necessarily have the President's confidence. Thus, by
the very nature of the office of a department
secretary, the President must appoint in an acting
capacity a person of her choice even while Congress is
in session. That person may or may not be the
permanent appointee, but practical reasons may make
it expedient that the acting appointee will also be the
permanent appointee.
10. The law expressly allows the President to make
such acting appointment. Section 17, Chapter 5, Title
I, Book III of EO 292 states that "[t]he President may
temporarily designate an officer already in the
government service or any other competent person to
perform the functions of an office in the executive
branch." Thus, the President may even appoint in an
acting capacity a person not yet in the government
service, as long as the President deems that person
competent.
11. Petitioners assert that Section 17 does not apply
to appointments vested in the President by the
Constitution, because it only applies to appointments
vested in the President by law. Petitioners forget that
Congress is not the only source of law. "Law" refers to
the Constitution, statutes or acts of Congress,
municipal ordinances, implementing rules issued
pursuant to law, and judicial decisions.
Acting appointments cannot exceed one year
12. Petitioners claim that the issuance of
appointments in an acting capacity is susceptible to
abuse. Petitioners fail to consider that acting
appointments cannot exceed one year as expressly
provided in Section 17(3), Chapter 5, Title I, Book III
of EO 292. The law has incorporated this safeguard to
prevent abuses, like the use of acting appointments as
a way to circumvent confirmation by the Commission
on Appointments.
Ad-interim appointments vs. Appointments in
an acting capacity
13. Ad-interim appointments must be distinguished
from appointments in an acting capacity. Both of them
are effective upon acceptance. But ad-interim
appointments are extended only during a recess of
Congress, whereas acting appointments may be
extended any time there is a vacancy.
14. Moreover ad-interim appointments are submitted
to the Commission on Appointments for confirmation
58
or rejection. Acting appointments are not submitted to
the Commission on Appointments. Acting
appointments are a way of temporarily filling
important offices but, if abused, they can also be a
way of circumventing the need for confirmation by the
Commission on Appointments
15. Case Summary
Macalintal vs Comelec (2003)
G.R. No. 157013 | 2003-07-10
Subject: Standing as Taxpayer; Issue is of
transcendental importance; Ripe for adjudication; Not
a political question; Laws are presumed to be
constitutional; Constitutional construction-Constitution
should be construed as a whole; Section 5(d) of RA
9189 is cons; titutional — Section 2, Art V (absentee
voting) is an exception to Section 1, Art V (residency
requirement for voters) of the 1987 Constitution;
Affidavit requirement for Filipino abroad under Sec
5(d) of RA 9189 is merely to overcome the
presumption of abandonment of their Philippine
domicile Absentee Voting, being an exception to the
regular form of voting, is purely a statutory privilege;
In election laws, residence is considered synonymous
with domicile; Section 18.5 of RA 9189 is
unconstitutional insofar as it enables the Comelec to
usurp the duty of Congress to proclaim the winning
candidates, for president and vice-president; Sections
19 and 25 of RA 9189 are unconstitutional --Congress
may not intrude into the independence of the
COMELEC by exercising supervisory powers over its
rule-making authority
Facts:
Atty. Romulo Macalintal filed a petition, as a taxpayer
and as a lawyer, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas
Absentee Voting Act of 2003)1 suffer from
constitutional infirmity.
The petition raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing
the registration of voters who are immigrants or
permanent residents in other countries by their mere
act of executing an affidavit expressing their intention
to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the
Constitution?
B. Does Section 18.5 of the same law empowering the
COMELEC to proclaim the winning candidates for
national offices and party list representatives including
the President and the Vice-President violate the
constitutional mandate under Section 4, Article VII of
the Constitution that the winning candidates for
President and the Vice-President shall be proclaimed
as winners by Congress?
C. May Congress, through the Joint Congressional
Oversight Committee created in Section 25 of Rep. Act
No. 9189, exercise the power to review, revise,
amend, and approve the Implementing Rules and
Regulations that the COMELEC shall promulgate
without violating the independence of the
COMELEC under Section 1, Article IX-A of the
Constitution?
Among the objections raised to the petition, and to
the propriety of the court in taking cognizance of the
case, were (1) lack of standing of petitioner to file the
case; (2) filing of petition was premature, and thus,
no actual controversy is presented; (3) issue involves
a political question;
Held:
I. Procedural Issues
Standing as Taxpayer
1. Taxpayers, such as herein petitioner, have the
right to restrain officials from wasting public funds
through the enforcement of an unconstitutional
statute. The Court has held that they may assail the
validity of a law appropriating public funds because
expenditure of public funds by an officer of the State
for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds.
2. Section 29 of R.A. No. 9189 appropriates funds
insofar as it provides that a supplemental budget on
the General Appropriations Act of the year of its
enactment into law shall provide for the necessary
amount to carry out its provisions.
Issue is of transcendental importance
3. The Court has adopted the policy of taking
jurisdiction over cases whenever the petitioner has
seriously and convincingly presented an issue of
transcendental significance to the Filipino people.
59
Objections to taxpayers’ suit for lack of sufficient
personality standing, or interest are, in the main,
procedural matters. Considering the importance to the
public of the case at bar, and in keeping with the
Court’s duty, under the 1987 Constitution, to
determine whether or not the other branches of
government have kept themselves within the limits of
the Constitution and the laws and that they have not
abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has
taken cognizance of these petitions.
4. In this case, the Court may set aside procedural
rules as the constitutional right of suffrage of a
considerable number of Filipinos is involved.
5. The need to consider the constitutional issues
raised before the Court is further buttressed by the
fact that it is now more than fifteen years since the
ratification of the 1987 Constitution requiring Congress
to provide a system for absentee voting by qualified
Filipinos abroad. Thus, strong reasons of public policy
demand that the Court resolves the instant petition10
and determine whether Congress has acted within the
limits of the Constitution or if it had gravely abused
the discretion entrusted to it.
Ripe for adjudication
6. There is a question on the prematurity of the
petition as there are no ongoing proceedings in any
tribunal, board or before a government official
exercising judicial, quasi-judicial or ministerial
functions as required by Rule 65 of the Rules of Court.
7. It it is illogical to await the adverse consequences
of the law in order to consider the controversy actual
and ripe for judicial resolution. (see Separate Opinion
of Kapunan, J. in Cruz vs. DENR Secretary)
Not a political question
8. In seeking to nullify an act of the Philippine Senate
on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy.
Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary
to settle the dispute. The question thus posed is
judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the
Constitution is upheld. Once a "controversy as to the
application or interpretation of constitutional provision
is raised before this Court (as in the instant case), it
becomes a legal issue which the Court is bound by
constitutional mandate to decide. (Tañada vs. Angara)
B. Substantive Issues
Laws are presumed to be constitutional
9. An act of the legislature, approved by the
executive, is presumed to be within constitutional
limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the
legislature as well. The question of the validity of
every statute is first determined by the legislative
department of the government itself.(see Peralta vs
Comelec)
10. To declare a law unconstitutional, the repugnancy
of that law to the Constitution must be clear and
unequivocal, for even if a law is aimed at the
attainment of some public good, no infringement of
constitutional rights is allowed. To strike down a law
there must be a clear showing that what the
fundamental law condemns or prohibits, the statute
allows it to be done.
Constitutional construction-Constitution should
be construed as a whole
11. As the essence of R.A. No. 9189 is to enfranchise
overseas qualified Filipinos, it behooves the Court to
take a holistic view of the pertinent provisions of both
the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should
be construed as a whole.
12. A constitutional provision should function to the
full extent of its substance and its terms, not by itself
alone, but in conjunction with all other provisions of
that great document. (see Chiongbian vs. De Leon)
13. Constitutional provisions are mandatory in
character unless, either by express statement or by
necessary implication, a different intention is
manifest. (see Marcelino vs. Cruz)
14. The intent of the Constitution may be drawn
primarily from the language of the document itself.
Should it be ambiguous, the Court may consider the
intent of its framers through their debates in the
60
constitutional convention. (Luz Farms vs. Secretary of
the Department of Agrarian Reform)
Section 5(d) of RA 9189 is constitutional —
Section 2, Art V (absentee voting) is an
exception to theresidency requirement for
voters under Section 1, Art V of the 1987
Constitution
15. Under Section 5(d) of RA 9189, one of those
disqualified from voting is an immigrant or permanent
resident who is recognized as such in the host
country unless he/she executes an affidavit declaring
that he/she shall resume actual physical permanent
residence in the Philippines not later than three years
from approval of his/her registration under said Act.
16. Petitioner posits that Section 5(d) is
unconstitutional because it violates Section 1, Article
V of the 1987 Constitution which requires that
the voter must be a resident in the Philippines for at
least one year and in the place where he proposes to
vote for at least six months immediately preceding an
election. Petitioner questions the rightness of the
mere act of execution of an affidavit to qualify the
Filipinos abroad who are immigrants or permanent
residents, to vote.
17. However, while Section 5(d) of RA 9189 appears
to violate Section 1 of Article V of the Constitution,
petitioner has ignored Section 2, Article V which
provides:
SEC. 2. The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well
asasystem for absentee voting by qualified Filipinos
abroad.
18. Contrary to petitioner’s claim that Section 5(d)
circumvents the Constitution, Congress enacted the
law prescribing a system of overseas absentee voting
in compliance with the constitutional mandate. Such
mandate expressly requires that Congress provide a
system of absentee voting that necessarily
presupposes that the "qualified citizen of the
Philippines abroad" is not physically present in the
country.
19. The Constitutional Commission realized that
under the laws then existing and considering the
novelty of the system of absentee voting in this
jurisdiction, vesting overseas Filipinos with the right to
vote would spawn constitutional problems especially
because the Constitution itself provides for the
residency requirement of voters. Thus, Section 2,
Article V of the Constitution came into being to
remove any doubt as to the inapplicability of the
residency requirement in Section 1. It is precisely to
avoid any problems that could impede the
implementation of its pursuit to enfranchise the
largest number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission
explicitly mandated Congress to provide a system for
overseas absentee voting.
20. The intent of the Constitutional Commission is to
entrust to Congress the responsibility of devising a
system of absentee voting. The qualifications of voters
as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why
the Constitutional Commission opted for the
term qualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw
up. As stressed by Commissioner Monsod, by the use
of the adjective qualified with respect to Filipinos
abroad, the assumption is that they have the
"qualifications and none of the disqualifications to
vote."
21. It is in pursuance of that intention that the
Commission provided for Section 2 immediately after
the residency requirement of Section 1. By
the doctrine of necessary implication in statutory
construction, which may be applied in construing
constitutional provisions,the strategic location of
Section 2 indicates that the Constitutional
Commission provided for an exception to the
actual residency requirement of Section 1 with
respect to qualified Filipinos abroad. The same
Commission has in effect declared that qualified
Filipinos who are not in the Philippines may be allowed
to vote even though they do not satisfy the residency
requirement in Section 1, Article V of the Constitution.
22. Accordingly, Section 4 of RA 9189, which provides
for the coverage of the absentee voting process, does
not require physical residency in the Philippines.
Affidavit requirement for Filipino abroad under
Sec 5(d) of RA 9189 is merely to overcome the
presumption of abandonment of their Philippine
domicile
23. Section 5(d) of RA 9189 specifically disqualifies
61
an immigrant or permanent resident who is
"recognized as such in the host
country" because immigration or permanent residence
in another country implies renunciation of one’s
residence in his country of origin. However, same
Section allows an immigrant and permanent resident
abroad to register as voter for as long as he/she
executes an affidavit to show that he/she has not
abandoned his domicile.
24. Contrary to the claim of petitioner, the execution
of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section
5(d) is not only proof of the intention of the immigrant
or permanent resident to go back and resume
residency in the Philippines, but more significantly, it
serves as an explicit expression that he had not in fact
abandoned his domicile of origin. Thus, it is not
correct to say that the execution of the affidavit under
Section 5(d) violates the Constitution that proscribes
"provisional registration or a promise by a voter to
perform a condition to be qualified to vote in a
political exercise."
25. To repeat, the affidavit is required of immigrants
and permanent residents abroad because by their
status in their host countries, they are presumed to
have relinquished their intent to return to this country;
thus, without the affidavit, the presumption of
abandonment of Philippine domicile shall remain.
26. It must be emphasized that Section 5(d) does not
only require an affidavit or a promise to "resume
actual physical permanent residence in the Philippines
not later than three years from approval of his/her
registration," the Filipinos abroad must also declare
that they have not applied for citizenship in another
country. Thus, they must return to the Philippines;
otherwise, their failure to return "shall be cause for
the removal" of their names "from the National
Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia."
27. Indeed, the probability that after an immigrant
has exercised the right to vote, he shall opt to remain
in his host country beyond the third year from the
execution of the affidavit, is not farfetched. However,
it is not for this Court to determine the wisdom of a
legislative exercise. As expressed in Tañada vs.
Tuvera, the Court is not called upon to rule on the
wisdom of the law or to repeal it or modify it if we find
it impractical.
28. The provisions of Sections 5(d) and 11 are
components of the system of overseas absentee
voting established by R.A. No. 9189. The qualified
Filipino abroad who executed the affidavit is deemed
to have retained his domicile in the Philippines. He is
presumed not to have lost his domicile by his physical
absence from this country. His having become an
immigrant or permanent resident of his host country
does not necessarily imply an abandonment of his
intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be
given the opportunity to express that he has not
actually abandoned his domicile in the Philippines by
executing the affidavit required by Sections 5(d) and
8(c) of the law.
Absentee Voting, being an exception to the
regular form of voting, is purely a statutory
privilege
29. The method of absentee voting has been said to
be completely separable and distinct from the regular
system of voting, and to be a new and different
manner of voting from that previously known, and an
exception to the customary and usual manner of
voting. The right of absentee and disabled voters to
cast their ballots at an election is purely
statutory; absentee voting was unknown to, and not
recognized at, the common law. xxx Such statutes are
regarded as conferring a privilege and not a
right, or an absolute right. (citing 29 C.J.S. 575-577)
30. When the legislature chooses to grant the right
by statute, it must operate with equality among all the
class to which it is granted; but statutes of this nature
may be limited in their application to particular types
of elections. xxx they should also be construed in the
light of the circumstances under which they were
enacted. Further, in passing on statutes regulating
absentee voting, the court should look to the whole
and every part of the election laws, the intent of the
entire plan, and reasons and spirit of their adoption,
and try to give effect to every portion thereof. (citing
29 C.J.S. 575-577)
In election laws, residence is considered
synonymous with domicile
31. Ordinarily, an absentee is not a resident and vice
versa; a person cannot be at the same time, both a
resident and an absentee. However, under our
62
election laws and the countless pronouncements of
the Court pertaining to elections, an absentee remains
attached to his residence in the Philippines
as residence is considered synonymous
with domicile.
32. Article 50 of the Civil Code decrees that "[f]or the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is their
place of habitual residence." In Ong vs. Republic, this
court took the concept of domicile to mean an
individual’s "permanent home," "a place to which,
whenever absent for business or for pleasure, one
intends to return, and depends on facts and
circumstances in the sense that they disclose intent."
33. Based on the foregoing, domicile includes
the twin elements : (1) the fact of residing or
physical presence in a fixed place and (2) animus
manendi, or the intention of returning there
permanently.
34. Residence, in its ordinary conception, implies
the factual relationship of an individual to a certain
place. It is the physical presence of a person in a
given area, community or country. The essential
distinction between residence and domicile in law is
that residence involves the intent to leave when the
purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as
pleasure, business, or health. If a person’s intent be to
remain, it becomes his domicile; if his intent is to
leave as soon as his purpose is established it is
residence. It is thus, quite perfectly normal for an
individual to have different residences in various
places. However, a person can only have a single
domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of
choice.
35. There is a difference between domicile and
residence. ‘Residence’ is used to indicate a place of
abode, whether permanent or
temporary; ‘domicile’ denotes a fixed permanent
residence to which, when absent, one has the
intention of returning. A man may have a residence in
one place and a domicile in another. Residence is not
domicile, but domicile is residence coupled with the
intention to remain for an unlimited time.
(see Uytengsu vs. Republic)
36. The registration of a voter in a place other than
his residence of origin has not been deemed sufficient
to consider abandonment or loss of such residence of
origin.
Section 18.5 of RA 9189 is unconstitutional
insofar as it enables the Comelec to ususrp the
duty of Congress to proclaim the winning
candidates, for president and vice-president.
37. Section 4 of RA 9189 provides that the overseas
absentee voter may vote for president, vice-president,
senators and party-list representatives. Section 18.5 of
the same law empowers the COMELEC to order the
proclamation of winning candidates, including that for
president and vice-president.
38. Section 18.5 of R.A. No. 9189 appears to be
repugnant to Section 4, Article VII of the Constitution
only insofar as Sec 18.5 totally disregarded the
authority given to Congress by the Constitution to
proclaim the winning candidates for the positions of
president and vice-president.
39. Section 18.5 of RA 9189 is far too sweeping that
it necessarily includes the proclamation of the winning
candidates for the presidency and the vice-presidency.
It clashes with paragraph 4, Section 4, Article VII of
the Constitution which provides that the returns of
every election for President and Vice-President shall
be certified by the board of canvassers to Congress.
40. The provisions of the Constitution as the
fundamental law of the land should be read as part
of The Overseas Absentee Voting Act of 2003 and
hence, the canvassing of the votes and the
proclamation of the winning candidates for president
and vice-president for the entire nation must remain
in the hands of Congress.
Sections 19 and 25 of RA 9189 are
unconstitutional --Congress may not intrude
into the independence of the COMELEC by
exercising supervisory powers over its rule-
making authority.
41. Petitioner avers that Sections 19 and 25 of R.A.
No. 9189 violate Section 1, Article IX-A of the
Constitution which provides that Constitutional
Commissions shall be independent . Particularly, the
creation of the Joint Congressional Oversight
Committee with the power to review, revise, amend
and approve the Implementing Rules and Regulations
63
promulgated by the COMELEC intrudes into the
independence of the COMELEC which, as a
constitutional body, is not under the control of either
the executive or legislative departments of
government; and that should the rules promulgated
by the COMELEC violate any law, it is the Court that
has the power to review the same via the petition of
any interested party, including the legislators.
42. Section 25 of RA 9189 provides for the creation of
the Joint Congressional Oversight Committee (JCOC).
Composed of Senators and Members of the House of
Representatives, the JCOC is a purely legislative body.
However, aside from its monitoring and evaluation
functions, RA 9189 gives to the JCOC the following
functions: (a) to "review, revise, amend and approve
the Implementing Rules and Regulations" (IRR)
promulgated by the COMELEC [Sections 25 and 19];
and (b) subject to the approval of the JCOC [Section
17.1], the voting by mail in not more than three
countries for the May 2004 elections and in any
country determined by COMELEC.
43. Once a law is enacted and approved, the
legislative function is deemed accomplished and
complete. The legislative function may spring back to
Congress relative to the same law only if that body
deems it proper to review, amend and revise the
law, but certainly not to approve, review, revise and
amend the IRR of the COMELEC.
44. By vesting itself with the powers to approve,
review, amend, and revise the IRR for The Overseas
Absentee Voting Act of 2003, Congress went beyond
the scope of its constitutional authority. Congress
trampled upon the constitutional mandate of
independence of the COMELEC. Hence, the second
sentence of the first paragraph of Section 19 stating
that "[t]he Implementing Rules and Regulations shall
be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior
approval," and the second sentence of the second
paragraph of Section 25 stating that "[i]t shall review,
revise, amend and approve the Implementing Rules
and Regulations promulgated by the Commission,"
should be stricken out of the statute for constitutional
infirmity.
45. Similarly, the phrase, "subject to the approval of
the Congressional Oversight Committee" in the first
sentence of Section 17.1 which empowers the
Commission to authorize voting by mail in not more
than three countries for the May, 2004 elections; and
the phrase, "only upon review and approval of the
Joint Congressional Oversight Committee" found in the
second paragraph of the same section are
unconstitutional as they require review and approval
of voting by mail in any country after the 2004
elections. Congress may not confer upon itself the
authority to approve or disapprove the countries
wherein voting by mail shall be allowed, as
determined by the COMELEC pursuant to the
conditions provided for in Section 17.1 of RA 9189.
Otherwise, Congress would overstep the bounds of its
constitutional mandate and intrude into the
independence of the COMELEC.
In summary:
A. Section 5(d) is CONSTITUTIONAL
B. Section 18.5 of R.A. No. 9189 is CONSTITUTIONAL
with respect only to the authority given to the
COMELEC to proclaim the winning candidates for the
Senators and party-list representatives but
UNCONSTITUTIONAL with respect to the power to
canvass the votes and proclaim the winning
candidates for President and Vice-President which is
lodged with Congress under Section 4, Article VII of
the Constitution.
C. The following portions of R.A. No. 9189 are
declared VOID and UNCONSTITUTIONAL for being
repugnant to Section 1, Article IX-A of the Constitution
mandating the independence of constitutional
commission, such as COMELEC:
a) The phrase in the first sentence of the first
paragraph of Section 17.1, to wit: "subject to the
approval of the Joint Congressional Oversight
Committee;"
b) The portion of the last paragraph of Section 17.1,
to wit: "only upon review and approval of the Joint
Congressional Oversight Committee;"
c) The second sentence of the first paragraph of
Section 19, to wit: "The Implementing Rules and
Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue
of this Act for prior approval;" and
d) The second sentence in the second paragraph of
Section 25, to wit: "It shall review, revise, amend and
64
approve the Implementing Rules and Regulations
promulgated by the Commission" of the same law;
16. Case Summary
Matibag v. Benipayo (2002)
G.R. No. 149036 | 2002-04-02
Subject:
Ad interim appointment, Commission on Elections,
Commission on Appointments
Facts:
President Arroyo appointed, ad interim, Benipayo as
COMELEC Chairman, and Borra and Tuason as
COMELEC Commissioners, each for a term of seven
years and all expiring on February 2, 2008. The
President submitted thead interim appointments to the
Commission on Appointments for confirmation;
however, the latter did not act on the appointments.
Subsequently, the President renewed the ad
interim appointments of Benipayo, Borra and Tuason
two more times to the same position and the same
term of seven years, with COA still not acting on the
appointments.
On February 2, 1999, the COMELEC en
banc appointed Matibag as “Acting Director” of the
EID in a “temporary” capacity. On April 16, 2001, in
his capacity as COMELEC Chairman, Benipayo
reassigned the latter to a different department and
designated a new Director for the EID.
This petition for Prohibition assails the ad
interim appointments of Benipayo, Borra and Tuason
as Chairman and Commissioners of the COMELEC,
respectively, as violative of the constitutional
prohibition on temporary appointments. Matibag also
questions the legality of Benipayo’s appointment of
Velma J. Cinco as the new Director IV of the
Comelec’s EID and her (Matibag) subsequent
reassignment to a different department.
Held:
Nature of Ad Interim Appointment
1. An ad interim appointment is a permanent
appointment. It takes effect immediately and can no
longer be withdrawn by the President once the
appointee has qualified into office.
2. The fact that ad interim appointments are subject
to confirmation by the COA does not alter its
permanent character. The Constitution itself makes
such ad interim appointment permanent by making
it effective until disapproved by the COA or until
the next adjournment of Congress.
3. This is in contrast with temporary or acting
appointments which are revocable at the will of
the appointing authority and constitutionally
prohibited to ensure the independence of the
constitutional commissions.
4. As such, the ad interim appointments of Benipayo,
Borra and Tuason are valid and do not constitute
temporary or acting appointments prohibited by the
Constitution.
Constitutionality of Renewals of Appointment
5. An ad interim appointment that is disapproved by
COA can no longer be extended a new appointment.
This disapproval is a final decision of the COA in the
exercise of its checking power on the appointing
authority of the President.
6. An ad interim appointment that is by-
passed because of lack of time or failure of COA to
organize is another matter. The President is free to
renew the ad interim appointment of a by-passed
appointee.
7. The renewal of the ad interim appointments of
Benipayo, Borra and Tuason, in light of the unacted
nominations, do not violate the constitutional
prohibition on reappointments. Furthermore, the
subsequent renewals do not serve to extend their
term in office but are for a fixed term expiring on
February 2, 2008.
Benipayo’s Authority to Reassign Petitioner
8. Pursuant to the Revised Administrative Code, the
COMELEC Chairman is vested with the power to
reassign and transfer personnel. As Benipayo is the de
jure COMELEC Chairman, he possesses full authority
to exercise the powers of the office as long as his ad
interim appointment remains effective.
65

9. As Matibag held her “Director” position only in an
acting or temporary capacity, her appointment can be
withdrawn at will by the appointing authority.
10. Furthermore, Matibag does not enjoy security of
tenure as she does not posses the required
qualifications for the position of “Director” as
prescribed by the Civil Service Commission.
17 Case Summary
Senate v. Ermita
G.R. No. 169777 | 2006-04-20
Subject:
Judicial Review (requisites of Standing and Actual
Controversy), Executive Privilege, Inquiry in aid of
legislation (Art VI, Sec 21) vs. Question hour (Art VI,
Sec 22), Right to information, Publication Requirement
Facts:
The Senate issued invitations to various Executive
Department officials for them to appear as resource
speakers in a public hearing to investigate the alleged
overpricing and other unlawful provisions of the
contract covering the North Rail Project. The Senate
Committee on National Defense likewise issued
invitations to AFP officials to be resource persons in a
senate investigation hearing.
On September 28, 2005, a day before the scheduled
Senate hearing, President Arroyo issued E.O. 464
which, pursuant thereto, took effect immediately. EO
464, invoking executive privilege as basis, provides
that: all heads of departments of the Executive Branch
of the government shall secure the consent of the
President prior to appearing before either House of
Congress.?
Senate President Drilon received a letter from
Executive Secretary Ermita that the invited officials will
not be able to attend without the President?s consent,
pursuant to EO 464.
Held: Sec 1 of EO 464 is valid on its face.
Sec 3 and Sec 2(b) of EO 464 are
unconstitutional.
Judicial Review, Standing
1. The Senate, including its individual members, has
a substantial and direct interest over the outcome of
the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have
standing to maintain inviolate the prerogative, powers
and privileges vested by the Constitution in their office
and are allowed to sue to question the validity of any
official action which they claim infringes their
prerogatives as legislators.
2. In the same vein, party-list representatives have
standing to question the constitutionality of E.O. 464,
it being sufficient that a claim is made that E.O. 464
infringes on their constitutional rights and duties as
members of Congress to conduct investigation in aid
of legislation and conduct oversight functions in the
implementation of laws.
Judicial Review, Standing as Citizens
3. IBP members and other organizations claim that
EO 464 violates their constitutional right to
information as citizens.
4. It is well-settled that when suing as a citizen, the
interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders,
and other regulations, must be direct and personal.
When the proceeding involves the assertion of a public
right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
Judicial Review, Standing based on
Transcendental Importance
5. To be accorded standing on the ground of
transcendental importance, it must establish: (1) the
case involves the disbursement of public funds or
assets, (2) the presence of a clear case of disregard of
a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the
government, and (3) the lack of any party with a more
direct and specific interest in raising the questions
being raised.
6. PDP-Laban's alleged interest as a political party
does not suffice to clothe it with legal standing on the
ground of transcendental importance. No public funds
or assets are involved and other petitioners have
shown direct and specific interests in the controversy.
Its allegation that E.O. 464 hampers its legislative
agenda is only a "generalized interest" which it shares
66
with the rest of the political parties. Concrete injury,
whether actual or threatened, is absent.
Judicial Review, Actual Case or Controversy
7. That the officials merely communicated to the
Senate that they have not yet secured the consent of
the President and the President has not actually
withheld her consent or prohibited the appearance of
the officials concerned is immaterial in determining
the existence of an actual case or controversy. For
E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition
issuing from the President in order to bar officials from
appearing before Congress. The implementation of the
challenged order has already resulted in the absence
of officials invited to the hearings of petitioner Senate
of the Philippines
Executive Privilege
8. Even where the inquiry is in aid of legislation,
there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of
"executive privilege."
9. Schwartz defines executive privilege as "the power
of the Government to withhold information from the
public, the courts, and the Congress."
10. According to Tribe, executive privilege come in a
variety of forms:
a) state secrets privilege: invoked by U.S. Presidents
on the ground that the information is of such nature
that its disclosure would subvert crucial military or
diplomatic objectives.
b) informer's privilege, or the privilege of the
Government not to disclose the identity of persons
who furnish information of violations of law to officers
charged with the enforcement of that law.
c) generic privilege for internal deliberations has been
said to attach to intra-governmental documents
reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.
11. Executive privilege is properly invoked in relation
to specific categories of information and not to
categories of persons. Executive officials are not
exempt from the duty to disclose information by the
mere fact of being executive officials. Executive
privilege, whether asserted against Congress, the
courts, or the public, is recognized only in relation to
certain types of information of a sensitive character. A
claim thereof may be valid or not depending on the
ground invoked to justify it and the context in which it
is made. That a type of information is recognized as
privileged does not necessarily mean that it would be
considered privileged in all instances.
12. Neri vs. Senate: 2 types of executive privilege:
(1) presidential communication privilege and (2)
deliberative process privilege
Article VI, Sec 21 (inquiry in aid of legislation)
vs. Sec 22 (question hour)
13. While both powers allow Congress or any of its
committees to conduct inquiry, their objectives are
different.
 Section 21 relates to the power to conduct
inquiries in aid of legislation. Its aim is to elicit
information that may be used for legislation.
 Section 22 pertains to the power to conduct a
question hour, the objective of which is to obtain
information in pursuit of Congress' oversight
function.
14. With regard to the use of compulsory process,
Congress can compel the appearance of executive
officials under Section 21, but NOT under Section 22.
15. When Congress exercises its power of inquiry,
the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege.
They are not exempt by the mere fact that they are
department heads. Only one executive official may be
exempted from this power - the President on whom
executive power is vested, hence, beyond the reach of
Congress except through the power of impeachment.
16. Members of the Supreme Court are also exempt
from this power of inquiry. Unlike the Presidency,
judicial power is vested in a collegial body; hence,
each member thereof is exempt on the basis not only
of separation of powers but also on the fiscal
autonomy and the constitutional independence of the
judiciary.
Validity of Sec 1, EO 464
67
17. Section 1 must be construed as limited in its
application to appearances of department heads in the
question hour. The requirement then to secure
presidential consent under Section 1, limited as it is
only to appearances in the question hour, is valid on
its face. For under Section 22, the appearance of
department heads in the question hour is discretionary
on their part.
18. Section 1 cannot be applied to appearances of
department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the
refusal of the department head to appear in such
inquiry, unless a valid claim of privilege is
subsequently made, either by the President herself or
by the Executive Secretary.
Validity of Sec 3, EO 464
19. Section 3 of E.O. 464 requires all the public
officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before
either house of Congress. The enumeration covers all
senior officials of executive departments, all officers of
the AFP and the PNP, and all senior national security
officials who are "covered by the executive privilege."
The enumeration also includes such other officers as
may be determined by the President.
20. Sec. 3 actually creates an implied claim of
privilege. Underlying the requirement of prior
consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the
President herself, that such official is in possession of
information that is covered by executive privilege. This
determination then becomes the basis for the official's
not showing up in the legislative investigation until
and unless the required consent is first secured. The
proviso allowing the President to give its consent
means nothing more than that the President may
reverse a prohibition which already exists by virtue of
E.O. 464.
21. A claim of privilege must clearly state the
grounds therefor. While Section 2(a) enumerates the
types of information that are covered by the privilege
under the challenged order, Congress is left to
speculate as to which among them is being referred to
by the executive. It does not suffice to merely declare
that the President, or an authorized head of office,
has determined that it is so, and that the President
has not overturned that determination.
22. The privilege being, by definition, an exemption
from the obligation to disclose information, in this
case to Congress, the necessity must be of such high
degree as to outweigh the public interest in enforcing
that obligation in a particular case. Congress
undoubtedly has a right to information from the
executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such
information on the ground that it is privileged, it must
so assert it and state the reason therefore and why it
must be respected. The infirm provisions of EO 464,
however, allow the executive branch to evade
congressional requests for information without need of
clearly asserting a right to do so and/or proffering its
reasons therefore. By the mere expedient of invoking
said provisions, the power of Congress to conduct
inquiries in aid of legislation is frustrated.
23. In light of the highly exceptional nature of the
privilege, it is essential to limit to the President the
power to invoke the privilege. She may of course
authorize the Executive Secretary to invoke the
privilege on her behalf, in which case the Executive
Secretary must state that the authority is "By order of
the President," which means that he personally
consulted with her. The privilege being an
extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other
words, the President may not authorize her
subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant
case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is
further invalid on this score.
Right to information
24. There are clear distinctions between the right of
Congress to information which underlies the power of
inquiry and the right of the people to information on
matters of public concern. For one, the demand of a
citizen for the production of documents pursuant to
his right to information does not have the same
obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant
a citizen the power to exact testimony from
government officials. These powers belong only to
Congress and not to an individual citizen.
25. To the extent that investigations in aid of
legislation are generally conducted in public, however,
68
any executive issuance tending to unduly limit
disclosures of information in such investigations
necessarily deprives the people of information which,
being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The
citizens are thereby denied access to information
which they can use in formulating their own opinions
on the matter before Congress
Publication requirement
26. While E.O. 464 applies only to officials of the
executive branch, it does not follow that the same is
exempt from the need for publication. Based on
tanada v Tuvera, the requirement of publication of
laws applies even to those that do not directly apply
to people in general.
18. Case Summary
Neri v. Senate
G.R. No. 180643 | 2008-03-25
Subject:
Executive Privilege (Presidential Communications
Privilege)
Facts:
DOTC entered into a contract with ZTE for the supply
of equipment and services for the National Broadband
Network (NBN) Project in the amount of
approximately USD 329.5M (or P16 Billion).
The NBN Project was initially approved as a Build-
Operate-Transfer (BOT) project but NEDA acquiesced
to convert it into a government-to-government
project, to be financed through a loan from the
Chinese Government.
The NBN Project became the subject of investigation
of several senate committees. NEDA Chair Romulo
Neri was summoned to appear and testify. He
disclosed that then COMELEC Chairman Benjamin
Abalos offered him P200 Million in exchange for his
approval of the NBN Project. He informed President
Arroyo about the bribery attempt and that she
instructed him not to accept thebribe. However, when
probed further on what they discussed about the NBN
Project, Neri refused to answer, invoking "executive
privilege". In particular, he refused to answer the
questions on (a) whether or not President Arroyo
followed up the NBN Project, (b) whether or not she
directed him to prioritize it, and (c) whether or not she
directed him to approve after being informed of the
bribe attempt. For his refusal to answer, the Senate
cited Neri in contempt.
Held:
The communications elicited by the three (3)
questions are covered by the presidential
communications privilege.
Executive Privilege
1. There is a recognized claim of executive privilege
despite the revocation of EO 464 since the privilege is
rooted in the Constitution itself.
2. Citing In Re: Sealed Case-- there are two kinds of
executive privilege:
(a) Presidential communications
privilege, which pertains to ‘communications,
documents or other materials that reflect presidential
decision-making and deliberations and that the
President believes should remain confidential.’
(b) Deliberative process privilege which includes
‘advisory opinions, recommendations and deliberations
comprising part of a process by which governmental
decisions and policies are formulated.’
Presidential communications privilege applies to
decision-making of the President while, the
deliberative process privilege, to decision-making of
executive officials. The first is rooted in the
constitutional principle of separation of power and the
President's unique constitutional role; the second on
common law privilege. Unlike the deliberative process
privilege, the presidential communications privilege
applies to documents in their entirety, and covers final
and post-decisional materials as well as pre-
deliberative ones. As a consequence, congressional or
judicial negation of the presidential communications
privilege is always subject to greater scrutiny than
denial of the deliberative process privilege.
3. The elements of presidential communications
privilege are:
69
(a) The protected communication must relate to a
"quintessential and non-delegable presidential
power."
(b) The communication must be authored or
"solicited and received" by a close advisor of the
President or the President himself. The judicial test is
that an advisor must be in "operational proximity" with
the President.
(c) The presidential communications privilege remains
a qualified privilege that may be overcome by a
showing of adequate need, such that the information
sought "likely contains important evidence" and by the
unavailability of the information elsewhere by an
appropriate investigating authority.
4. The communications elicited by the three questions
are covered by the presidential communications
privilege. First, the communications relate to a
"quintessential and non-delegable power" of the
President, i.e. the power to enter into an executive
agreement with other countries. Second, the
communications are "received" by a close advisor of
the President. Under the "operational proximity" test,
Neri can be considered a close advisor, being a
member of President Arroyo's cabinet. And third, there
is no adequate showing of a compelling need that
would justify the limitation of the privilege and of the
unavailability of the information elsewhere by an
appropriate investigating authority.
5. Presidential communications are presumptively
privileged. However, confidentiality in executive
privilege is not absolutely protected. The presumption
can be overcome by a showing of public need.
Executive Privilege (properly invoked)
6. For the claim to be properly invoked, there must be
a formal claim of privilege, lodged by the head of the
department which has control over the matter. A
formal and proper claim of executive privilege requires
a "precise and certain reason" for preserving their
confidentiality.
7. The Letter of Executive Secretary Ermita serves as
the formal claim of privilege. The reason for the claim
of privilege is that the information sought to be
disclosed might impair our diplomatic as well as
economic relations with the People's Republic of
China.
Contempt order
8. The senate committees committed grave abuse of
discretion in issuing the contempt order in view of the
following reasons.
(a) There is a legitimate claim of executive privilege
(b) Committees did not send him an advance list of
questions
(c) Members who did not actually participate in the
deliberation were made to sign the contempt order
(d) Not having published its Rules of Procedure, the
subject hearings in aid of legislation conducted by the
14th Senate, are therefore, procedurally infirm
(e) The Committees must first rule on the claim of
executive privilege and inform petitioner of their
finding, instead of peremptorily dismissing his
explanation as "unsatisfactory.
19. Case Summary
Roces vs HRET (2005)
G.R. No. 167499 | 2005-09-15
Subject: HRET has the power to determine whether
it has jurisdiction over the controversy; Mrs. Ang Ping
is a proper party to contest the election of Roces;
Motion for reconsideration of COMELEC Division order
or resolution is a prerequisite before COMELEC En
Banc may take congnizance (COMELEC En Banc
improperly issued Resolution No. 6823); COMELEC's
resolutions are void ab initio for violating Mrs. Ang
Ping's constitutional right to due process; A void
judgment or resolution may be impeached through
collateral attack;
Facts:
Petitioner Miles Roces and former Congressman Harry
Ang Ping filed their respective certificates of candidacy
(COCs) for the position of Representative for the 3rd
Congressional District of Manila in the May 2004
elections.
A registered voter of Manila named Alejandro Gomez
questioned Mr. Ang Ping's candidacy before the
COMELEC through a petition to deny due course or
cancel his COC. The petition alleged that Mr. Ang Ping
misrepresented himself to be a natural-born citizen,
hence was disqualified for the position.
Acting for the COMELEC First Division, Commissioner
Garcilliano issued an order on April 30,
70
2004 scheduling the promulgation of its resolution
on May 5, 2004. Two days before the scheduled
promulgation or on May 3, 2004, Mr. Ang Ping filed
with the COMELEC a Sworn Declaration of Withdrawal
of his COC. The next day, the Nationalist Peoples
Coalition, the political party of Mr. Ang Ping, sought
that Mr. Ang Ping's wife, Ma. Zenaida Ang Ping (Mrs.
Ang Ping), substitute for him. Mr. Ang Ping also filed a
motion to dismiss the petition to deny due course or
cancel his COC.
On May 5, 2004, Commissioner Borra deferred the
promulgation for lack of quorum.
The COMELEC First Division issued a resolution
granting the petition to deny due course to Mr. Ang
Ping's COC and ordering the Board of Election
Inspectors of Manila not to count any vote cast in his
favor. It ruled that the resolution which was originally
scheduled for promulgation by Commissioner
Garcilliano on May 5, 2004 was instead promulgated
on April 30, 2004.
The COMELEC First Division issued on the same date
an order denying Mr. Ang Ping's motion to dismiss. It
held that the motion to dismiss was filed after the
"promulgation" of the April 30, 2004 resolution
granting the petition to deny due course to Mr. Ang
Ping's COC.
Mr. Ang Ping moved for reconsideration of the April
30, 2004 resolution and the case was elevated to the
COMELEC en banc.
While the case was still with the COMELEC First
Division, or on May 8, 2004, the COMELEC en
banc issuedResolution No. 6823, declaring moot Mr.
Ang Ping's Affidavit of Withdrawal, denying due course
to the substitute COC of Mrs. Ang Ping and ordering
the deletion of Mr. Ang Ping's name from the certified
list of candidates. Among the signatories to the
Resolution were Commissioners Javier, Borra, and
Garcilliano of the COMELEC First Division before which
the petition to deny due course was still pending.
The spouses Ang Ping repaired to the Supreme
Court and filed a petition for certiorari with prayer for
temporary restraining order assailing COMELEC
Resolution No. 6823.
On the election day itself, the Manila City Board of
Canvassers (BOC) resolved not to canvass the votes
for Mr. or Mrs. Ang Ping citing COMELEC Resolution
No. 6823. After counting only 6,347 votes out of the
150,387 registered voters in the district, the Manila
BOC proclaimed Roces as winner on May 15, 2004.
Mrs. Ang Ping filed an Election Protest Ad
Cautelam with the House of Representatives Electoral
Tribunal (HRET) challenging COMELEC Resolution No.
6823. Roces filed his answer alleging that the HRET
has no jurisdiction over the case.
The Supreme Court dismissed the certiorari petition in
view of the pending HRET protest filed by Mrs. Ang
Ping. Thereafter, Mrs. Ang Ping filed in the HRET a
motion to convert the ad cautelam protest to a regular
protest. The motion was granted.
In the HRET, Roces filed a motion to dismiss the
protest, assailing in the main the personality of Mrs.
Ang Ping to file the protest. The HRET denied Roces's
motion to dismiss. It ruled that Mrs. Ang Ping was a
proper party to file the protest against Roces since
there was no final COMELEC resolution disqualifying or
denying due course to the COC of Mr. Ang Ping, thus
her substitution for the latter was legally permissible
under the Omnibus Election Code. Also, she was one
of the candidates voted for during election day
Roces then filed the present petition
for certiorari assailing the resolutions of the HRET.
The issues for resolutionare:
(1) whether or not the HRET committed grave abuse
of discretion amounting to lack or excess of
jurisdiction when it ruled that Mrs. Ang Ping is a
proper party to file the election protest despite the
denial in due course and cancellation of her COC
under COMELEC Resolution No. 6823; and
(2) whether or not HRET has jurisdiction to review a
resolution or order of the COMELEC and/or declare the
same as void and disregard or set it aside.
Held:
HRET has the power to determine whether it
has jurisdiction over the controversy
1. The HRET did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction
when it denied the Roces' motion to dismiss.
71

2. The HRET is the sole judge of all contests relating
to the election, returns, and qualifications of the
members of the House of Representatives and has the
power to promulgate procedural rules to govern
proceedings brought before it. This exclusive
jurisdiction includes the power to determine whether it
has the authority to hear and determine the
controversy presented, and the right to decide
whether that state of facts exists which confers
jurisdiction, as well as all other matters which arise in
the case legitimately before it. Accordingly, it has
the power to hear and determine, or inquire into, the
question of its own jurisdiction, both as to parties and
as to subject matter, and to decide all questions,
whether of law or fact, the decision of which is
necessary to determine the question of jurisdiction.
One of the three essential elements of jurisdiction is
that proper parties must be present. Consequently,
the HRET merely exercised its exclusive jurisdiction
when it ruled that Mrs. Ang Ping was a proper party to
contest the election of Roces.
3. In order to support his motion to dismiss, Roces
offered as evidence the COMELEC resolutions denying
due course to Mrs. Ang Ping's COC. In doing so, Roces
submitted to the HRET the admissibility and validity of
these resolutions and the HRET cannot be faulted in
reviewing the said resolutions especially for the
purpose of determining whether Roces was able to
discharge his burden of proving that Mrs. Ang Ping is
not the proper party to assail his election. In passing
upon the COMELEC resolutions especially for that
purpose, it cannot be said that the HRET usurped the
jurisdiction of the COMELEC.
Mrs. Ang Ping is a proper party to contest the
election of Roces
4. The HRET did not abuse its discretion in holding
that Mrs. Ang Ping is a proper party to contest the
election of Roces.
5. Under COMELEC rules of procedure, “the
promulgation of a decision or resolution of the
Commission or a Division shall be made on a date
previously fixed, of which notice shall be served in
advance upon the parties or their attorneys personally
or by registered mail or by telegram.”
6. Promulgation is important because it determines
when the reglementary period begins to toll. In the
case at bar, Commissioner Garcilliano fixed the
promulgation of its resolution whether to give due
course to the candidacy of Mr. Ang Ping on May 5,
2004. However, for mysterious reasons, the COMELEC
First Division of Commissioner Garcillano did not
promulgate the resolution on May 5, 2004 in
accordance with its notice of promulgation. Despite
the deferment of the promulgation by Commissioner
Borra to a date to be set by the COMELEC First
Division, the resolution was deemed "promulgated" by
the COMELEC on April 30, 2004 when it was filed with
the clerk of court. The April 30, 2004 COMELEC
resolution was received by Mr. Ang Ping's counsel only
on May 8, 2004. Yet on May 5, 2004, the COMELEC
First Division denied Mr. Ang Ping's motion to dismiss
on the ground that the motion was filed after the April
30, 2004 resolution.
Motion for reconsideration of COMELEC Division
order or resolution is a prerequisite before
COMELEC En Banc may take cognizance
(COMELEC En Banc improperly issued
Resolution No. 6823)
7. The COMELEC en banc usurped the jurisdiction of
the COMELEC First Division when it issued Resolution
No. 6823 on May 8, 2004 despite the fact that: (1)
the reglementary period of Mr. Ang Ping to appeal had
not yet expired; and (2) Mr. Ang Ping had filed a
motion for reconsideration on May 10, 2004 within the
five-day reglementary period.
8. Nowhere is it provided in the law that the
COMELEC en banc has the power to assume
jurisdiction motu proprioover a petition to deny due
course pending before a division of the Commission.
In fact, the Constitution and COMELEC Rules of
Procedure provide that motions for reconsideration of
the COMELEC division's decisions, resolutions, orders
or rulings must first be filed in the Divisions before the
Commission en banc may take
cognizance thereof. (see Article IX-C, Section 3, 1987
Constitution, and 1993 COMELEC Rules of Procedure,
Rule 3, Section 3 and Rule 19, Sections 5-6)
9. This premature COMELEC Resolution No. 6823 was
then used on May 12, 2004, or on the election day
itself, by the Manila City Board of Canvassers as the
basis of its resolution not to canvass the votes for Mr.
or Mrs. Ang Ping.The effect of COMELEC en
72
banc Resolution No. 6823 was to execute the April 30,
2004 resolution of its First Division which, at that time,
had not yet become final and executory. These
irregularities cannot be swept away by the belated
COMELEC en banc's April 28, 2005 resolution denying
Mr. Ang Ping's motion for reconsideration dated May
10, 2004.
10. Citing T.H. Valderama & Sons, Inc. v. Drilon, it is
argued that Mrs. Ang Ping's motions for
reconsideration and appeals "cured" whatever defects
occurred at the COMELEC. Contrary to Roces's
posture, Valderama and its kin required that the
aggrieved party be given an opportunity to be heard.
In the case at bar, Mrs. Ang Ping was systematically
denied the opportunity to be heard. The resolution of
the COMELEC's First Division was made before its
priorily set date of promulgation, deemed final and
executory by the COMELEC en banc in Resolution No.
6823 before expiry of the reglementary period, and
executed by the Manila City Board of Canvassers. The
petition forcertiorari filed by Mrs. Ang Ping challenged
these resolutions and could not have cured these
blatant violations of her right to due process.
COMELEC's resolutions are void ab initio for
violating Mrs. Ang Ping's constitutional right to
due process
11. The COMELEC's resolutions are void ab initio for
violating Mrs. Ang Ping's constitutional right to due
process. Judgments entered in a proceeding failing to
comply with procedural due process are void, as is
one entered by a court acting in a manner
inconsistent with due process. A void judgment is
defined as one that, from its inception, is a complete
nullity and without legal effect. A void judgment is not
entitled to the respect accorded to, and is attended by
none of the consequences of, a valid adjudication.
Indeed, a void judgment need not be recognized by
anyone, but may be entirely disregarded or declared
inoperative by any tribunal in which effect is sought to
be given to it. It has no legal or binding force or
efficacy for any purpose or at any place. It cannot
affect, impair, or create rights, nor can any rights be
based on it. All proceedings founded on the void
judgment are themselves regarded as invalid and
ineffective for any purpose. Needless to stress, the
HRET did not commit grave abuse of discretion in
assuming jurisdiction over the election protest as the
COMELEC Resolution dated April 30, 2004, Order of
May 5, 2004, and Resolution No. 6823 were void ab
initio.
A void judgment or resolution may be
impeached through collateral attack
12. Petitioner contends that the HRET cannot review
decisions of the COMELEC and that COMELEC
decisions, orders, or rulings may be solely reviewed by
the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.
It is true that generally, the method of assailing a
judgment or order of the COMELEC is via petition
for certiorari. As aforestated, however, it was
petitioner who submitted these resolutions to the
HRET as proofs that Mrs. Ang Ping was not a proper
party. These same resolutions were collaterally
attacked by Mrs. Ang Ping before the HRET when she
alleged that these violated her right to due process.
13. A void judgment or resolution may be impeached
through collateral attack. A direct attack on a
judgment or resolution is defined as an attempt to
avoid or correct it in some manner provided by law, in
a proceeding instituted for that very purpose, in the
same action and in the same tribunal. Conversely,
a collateral attack is an attempt to impeach the
judgment or resolution by matters dehors the record,
before a tribunal other than the one in which it was
rendered, in an action other than that in which it was
rendered; an attempt to avoid, defeat, or evade it, or
deny its force and effect, in some incidental
proceeding not provided by law for the express
purpose of attacking it; any proceeding which is not
instituted for the express purpose of annulling,
correcting, or modifying such decree; an objection,
incidentally raised in the course of the proceeding,
which presents an issue collateral to the issues made
by the pleadings. The rule that a void judgment or
decree is subject to collateral attack at any time is
based upon a court's inherent authority to expunge
void acts from its records. The void resolutions of the
COMELEC, especially the April 30, 2004 resolution
issued by its First Division, cannot oust the HRET of its
jurisdiction over the case at bar.
20. Case Summary
Sabio v. Gordon
G.R. Nos. 174340, 174318 and 174177 | 2006-10-17
73
Subject: Legislative inquiry in aid of legislation,
Right of Privacy, Right against Self-Incrimination,
Contempt power of the Legislative.
Facts:
A Senate Resolution was introduced by Senator Miriam
Santiago "directing an inquiry in aid of legislation on
the anomalous losses incurred by the POTC,
PHILCOMSAT and Philcomsat Holdings due to the
alleged improprieties in their operations by their
respective Board of Directors”
Then PCGG Chairman Camilo Sabio was invited by the
Senate to be one of its resource persons. Chairman
Sabio declined, invoking Section 4 (b) of EO No. 1
which provides that "No member or staff of the
[PCGG] shall be required to testify or produce
evidence in any judicial, legislative or administrative
proceeding concerning matters within its official
cognizance"
Notwithstanding the Subpoena Ad Testificandum
issued by Senator Gordon to Chairman Sabio and
other PCGG Comissioners, they refused to appear
before the Senate and pointed out that the anomalous
transactions referred to in the Senate Resolution are
subject of pending cases before the regular courts,
the Sandiganbayan and the Supreme Court for which
reason they may not be able to testify thereon under
the principle of sub judice.
Section 4 (b) of EO No. 1 is challenged on the ground
that it tramples upon the Senate's power to conduct
legislative inquiry under Article VI, Section 21 of the
1987 Constitution.
Held: Section 4 (b) of EO No. 1 is
unconstitutional.
Power of Legislative Inquiry
1. The power of inquiry is inherent in the power to
legislate. The power of inquiry - with process to
enforce it - is an essential and appropriate auxiliary to
the legislative function. Hence, there need not be any
express provision in the Constitution granting such
powers to the legislative since it is already impliedly
included in the function of legislation.
2. Notably, Article VI, Section 21 grants the power of
inquiry not only to the Senate and the House of
Representatives, but also to any of their respective
committees.
3. Section 4(b) is directly repugnant with Article VI,
Section 21 as it exempts the PCGG members and staff
from the Congress' power of inquiry. The Congress'
power of inquiry, being broad, encompasses
everything that concerns the administration of existing
laws as well as proposed or possibly needed statutes.
It even extends "to government agencies created by
Congress and officers whose positions are within the
power of Congress to regulate or even abolish.” PCGG
belongs to this class.
4. Section 4(b), being in the nature of an immunity,
is inconsistent with the principle of public
accountability. It places the PCGG members and staff
beyond the reach of courts, Congress and other
administrative bodies.
5. Corollarily, Sec. 4(b) also runs counter to the
following constitutional provisions: Art. II, Sec. 28
(policy of full public disclosure), Art. III, Sec. 7 (right
of the people to information on matters of public
concern).
Right to Privacy
6. One important limitation on the Congress' power
of inquiry is that "the rights of persons appearing in or
affected by such inquiries shall be respected." This
means that the power of inquiry must be "subject to
the limitations placed by the Constitution on
government action." (i.e. Bill of Rights)
7. The Bill of Rights guarantees the right to privacy.
In evaluating a claim for violation of the right to
privacy, a court must determine whether a person has
exhibited a reasonable expectation of privacy and, if
so, whether that expectation has been violated by
unreasonable government intrusion.
8. The legislative inquiry focuses on acts committed
in the discharge of duties as officers and directors of
the said corporations. Consequently, the directors of
POTC, Philcomsat have no reasonable expectation of
privacy over matters involving their offices in a
corporation where the government has interest.
Certainly, such matters are of public concern and over
which the people have the right to information.
74
9. The right to privacy is not absolute where there is
an overriding compelling state interest.
10. The right of the people to access information on
matters of public concern prevails over the right to
privacy of financial transactions
Right against Self-Incrimination
11. The right against self-incrimination may be
invoked by the said directors and officers of
Philcomsat only when the incriminating question is
being asked, since they have no way of knowing in
advance the nature or effect of the questions to be
asked of them.
12. That this right may possibly be violated or
abused is no ground for denying the Senate
Committees their power of inquiry. When this power is
abused, such issue may be presented before the
courts.
Contempt Power of the Legislative
13. The exercise by the legislature of the contempt
power is a matter of self-preservation as that branch
of the government vested with the legislative power,
independently of the judicial branch, asserts its
authority and punishes contempts thereof. The
contempt power of the legislature is, therefore, sui
generis. (citing Negros Oriental II Electric Cooperative,
Inc. v. Sangguniang Panlungsod of Dumaguete)
Sub Judice
14. It is contended that the Senate is barred from
inquiring into the same issues being litigated before
the Court of Appeals and the Sandiganbayan. Suffice it
to state that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation provide that the filing or
pendency of any prosecution of criminal or
administrative action should not stop or abate any
inquiry to carry out a legislative purpose.
21. Case Summary
Sema vs Comelec (2008)
G.R. No. 177597 and G.R. No. 178628 | 2008-07-16
Subject: Writs of certiorari and mandamus not
applicable; The writ of prohibition is appropriate to
test the constitutionality of election laws, rules and
regulations; Dilangalen’s proclamation did not render
the petition moot; Creation of provinces, cities and
municipalities requires a legislative act from Congress,
while creation of a barangay may be delegated to
local legislative bodies; Section 19, Article VI of RA
9054, which grants to the ARMM Regional Assembly
the power to create provinces and cities, is
Unconstitutional; Legislative districts are created or
reapportioned only by an act of Congress; For a
legislative body to create a province such legislative
body must have the power to create legislative
districts
Facts:
The Province of 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).
The Ordinance appended to the 1987 Constitution
apportioned two legislative districts for Maguindanao.
The first legislative district consists of Cotabato City
and eight municipalities. However, while 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 Regional Assembly,
exercising its power to create provinces under Section
19, Article VI of RA 9054, 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 provided that the eight municipalities shall be
separated from the Province of Maguindanao and
constituted into a distinct and independent province
(Shariff Kabunsuan). 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.
The Sangguniang Panlungsod of Cotabato City passed
Resolution No. 3999 requesting the COMELEC to
“clarify the status of Cotabato City in view of the
75
conversion of the First District of Maguindanao into a
regular province” under MMA Act 201.
The COMELEC issued Resolution No. 07-0407 dated
March 6, 2007 "maintaining the status quo
with Cotabato City as part of Shariff Kabunsuan in the
First Legislative District of Maguindanao.”
However, in preparation for the May 2007 elections,
COMELEC promulgated Resolution No. 7845 stating
that Maguindanao’s first legislative district is
composed only of Cotabato City because of the
enactment of MMA Act 201
COMELEC issued Resolution No. 7902, amending
Resolution No. 07-0407 by renaming the first
legislative district as “Shariff Kabunsuan Province with
Cotabato City (formerly First District of Maguindanao
with Cotabato City).”
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, who was a candidate in the May 2007 elections
for Representative of “Shariff Kabunsuan with
Cotabato City,” prayed for the nullification of
COMELEC Resolution No. 7902, treating Cotabato City
as part of the legislative district of the Province of
Shariff Kabunsuan, and the exclusion from canvassing
of the votes cast in Cotabato City for that office. Sema
claimed that in issuing Resolution No. 7902, the
COMELEC usurped Congress’ power to create or
reapportion legislative districts.
COMELEC contended that (1) Sema wrongly availed of
the writ of certiorari to nullify 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 became moot
with the proclamation of respondent Didagen P.
Dilangalen as representative of the legislative district
of Shariff Kabunsuan Province with Cotabato City.
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.
The issues are (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.
Held:
I. Procedural Issues
Writs of certiorari and mandamus are not
applicable
1. 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.
However, The COMELEC did not issue Resolution No.
7902 in the exercise of its judicial or quasi-judicial
functions.
2. 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.” However, there is no 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.”
The writ of prohibition is appropriate to test the
constitutionality of election laws, rules and
regulations
3. The inapplicability of certiorari and mandamus,
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.
76

Dilangalen’s proclamation did not render the
petition moot
4. Dilangalen’s proclamation as winner in the 14 May
2007 elections for representative of “Shariff
Kabunsuan Province with Cotabato City” did not moot
this petition. This case does not concern 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.
5. 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 the court 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.
II. Substantive Issues
Creation of provinces, cities and municipalities
requires a legislative act from Congress, while
creation of a barangay may be delegated to
local legislative bodies
6. 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.
7. 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.
8. 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, subject
to compliance with the criteria established in the Local
Government Code, and the plebiscite requirement.
9. However, under the Local Government Code, only
an Act of Congress can create provinces, cities
or municipalities.
Section 19, Article VI of RA 9054, which grants
to the ARMM Regional Assembly the power to
create provinces and cities, is Unconstitutional
10. 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.
11. 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.”
12. 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
77
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. Thus, the power to create a
province or city inherently involves the power
to create a legislative district.
13. 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 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
14. Under Section 5, Article VI of the Constitution,
the power to increase the allowable
membership in the House of Representatives,
and to reapportion legislative districts, is vested
exclusively in Congress.
15. 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.
16. 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. 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.
17. Moreover, 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. 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.
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.
18. 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. Nothing in Section 20, Article X of the
Constitution authorizes autonomous regions, expressly
or impliedly, to create or reapportion legislative
districts for Congress.
19. 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. 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.
For a legislative body to create a province such
legislative body must have the power to create
legislative districts
20. Sema contends that with the creation of Province
of Shariff Kabunsuan, it is automatically entitled to
one member in the House of Representatives. As
support for her stance, she 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.”
21. Felwa does not apply to the present case because
in Felwa the new provinces were created by a national
78
law enacted by Congress itself. Here, the new
province was created merely by a regional law
enacted by the ARMM Regional Assembly.
22. What Felwa teaches is that the creation of a
legislative district by Congress does not emanate
alone from Congress’ power to reapportion legislative
districts, but also from Congress’ power to create
provinces which cannot be created without a
legislative district. Thus, when a province is
created, a legislative district is created by
operation 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 exclusively to Congress. It
merely prevents any other legislative body, except
Congress, from creating provinces because for a
legislative body to create a province 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 Constitution.
23. Moreover, if as Sema claims MMA Act 201
apportioned a legislative district to Shariff Kabunsuan
upon its creation, this will leave Cotabato City as the
lone component of 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 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 fifty thousand x x x, shall have at
least one representative.”
24. Under Section 19, Article VI of RA 9054, the
ARMM Regional Assembly can create provinces and
cities within the ARMM with or without regard to the
criteria fixed in Section 461 of the Local Government
Code (RA 716), namely: (a) minimum annual income
of P20,000,000, and (b) minimum contiguous territory
of 2,000 square kilometers or minimum population of
250,000. If upheld, this will lead to absurd
consequences not contemplated by the framers of the
Constitution. (ex: an inferior legislative body like the
ARMM Regional Assembly can create 100 or more
provinces and thus increase the membership of a
superior legislative body, the House of
Representatives, beyond the maximum limit of 250
fixed in the Constitution. Further, representatives from
the ARMM provinces can become the majority in the
House of Representatives through the ARMM Regional
Assembly’s continuous creation of provinces or cities
within the ARMM)
25. It is axiomatic that organic acts of autonomous
regions cannot prevail over the Constitution. Section
20, Article X of the Constitution expressly provides
that the legislative powers of regional assemblies are
limited “[w]ithin its territorial jurisdiction and subject
to the provisions of the Constitution and national
laws” 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.”
In summary:
(a) 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.
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 only within its territorial jurisdiction as
provided in Section 20, Article X of the Constitution.
(b) MMA Act 201, enacted by the ARMM Regional
Assembly and creating the Province of Shariff
Kabunsuan,is void.
(c) COMELEC Resolution No. 7902, preserving the
geographic and legislative district of the First District
of Maguindanao with Cotabato City, is valid as it
79
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.
22. Case Summary
Lawyer's League for a Better Philippines vs
Aquino (1986)
G.R. No. 73748 | 1986-05-22
Subject: Legitimacy of the Aquino government is a
political and not a justiciable matter
Facts:
Several petitions were filed questioning the legitimacy
of the government of President Aquino. It is claimed
that her government is illegal because it was not
established pursuant to the 1973 Constitution.
Held:
Legitimacy of the Aquino government is a
political and not a justiciable matter
1. Petitioners have no personality to sue and their
petitions state no cause of action. For the legitimacy
of the Aquino government is not a justiciable matter.
It belongs to the realm of politics where only the
people of the Philippines are the judge. And the
people have made the judgment; they have accepted
the government of President Corazon C. Aquino which
is in effective control of the entire country so that it
is not merely a de facto government but is in
fact and law a de jure government. Moreover, the
community of nations has recognized the legitimacy of
the present government. All the eleven members of
this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her
government.
23. Case Summary
Estrada v. Desierto
G.R. No. 146710-15 and G.R. No. 146738 | 2001-03-
02
Subject:
Political Question; EDSA 1 vs EDSA 2; Resignation;
Conviction by Impeachment as a Bar to Prosecution;
Presidential Immunity from Suit; Public Office is a
Public Trust; Theory of Derivative Prejudice
Facts:
Former President Joseph Estrada was elected during
1998 elections. Sometime in October 2000, however,
several allegations of corruption and of receiving
millions of pesos from jueteng lords were made
against him before the Senate Blue Ribbon
Committee. Some Congressmen moved to impeach
Estrada which caused several sectors, former
Presidents Aquino and Ramos to call for Estrada’s
resignation. Some senior advisers of Estrada as well as
a number of his cabinet resigned from their positions.
Impeachment trial commenced with Chief Justice
Davide presiding.
The impeachment trial was put to a halt after the
public prosecutors tendered their collective resignation
before the Impeachment Tribunal caused by the
decision of 11 Senators not to open the second
envelope (an alleged secret account of Erap
amounting to 3.3B Pesos in the name of Jose
Velarde). An indefinite postponement of the
Impeachment proceedings was granted by the Chief
Justice.
The next day, EDSA 2 commenced with the PNP and
AFP joining the crowd. In the succeeding days, a
chain of resignations from the military, the police, and
the cabinet ensued. On January 20, Supreme Court
declared the seat for presidency as vacant, saying that
Estrada “constructively resigned his post.” At noon,
Chief Justice, whose authority was later unanimously
confirmed by SC, administered the oath to Arroyo as
President of the Philippines. That same afternoon,
Estrada and his family left Malacañang and
transmitted a signed letter appointing then Vice-
President Arroyo as Acting President, citing Section
11, Article 7 of the Constitution, to the House Speaker
and Senate President.
Several cases were filed against Estrada in the Office
of the Ombudsman. Estrada filed with the Supreme
Court a petition for prohibition which sought to enjoin
the Ombudsman from conducting any further
proceedings in cases filed against him, not until his
term as president ends. He also filed a petition for quo
warranto praying for judgment confirming him to be
the lawful and incumbent President of the Philippines
“temporarily unable to discharge the duties of his
office.”
80

Held:
Political Question
1. The Court held that the cases at bar do not involve
a political question and therefore falls within the ambit
of judicial scrutiny pursuant to the doctrine of
separation of powers of coordinate branches of
government.
2. Political question refers to those questions
which, under our Constitution, are to be decided by
the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated
to the legislative or executive branch of government.
It is concerned with the issues dependent on the
wisdom, not legality of a particular measure.
3. To a great degree, the 1987 Constitution has
narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this
court not only to settle actual controversies involving
rights which are legally demandable and enforceable
but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
instrumentality of government.
EDSA 1 vs EDSA 2
4. EDSA People Power I involves the exercise of
the people power of revolution which overthrew the
whole government while EDSA People Power II is an
exercise of people power of freedom of speech and
freedom of assembly to petition the government for
redress of grievances which only affected the office of
the President.
5. EDSA I is extra constitutional but EDSA II
is intra constitutional.
6. EDSA I presented a political question while EDSA II
involved legal questions.
Resignation
7. Using the totality test, the Supreme Court held
that petitioner resigned as President - which was
confirmed by his leaving Malacañang.
8. Facts show that petitioner did not write any formal
letter of resignation before he evacuated Malacanang
Palace in the afternoon of January 20, 2001 after the
oath-taking of respondent Arroyo. Consequently,
whether or not petitioner resigned has to be
determined from his acts and omissions before, during
and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance
on the issue.
9. In the press release containing his final statement,
(1) He acknowledged the oath-taking of Arroyo as
President of the Republic albeit with reservation about
its legality;
(2) He emphasized he was leaving the Palace, the
seat of the presidency, for the sake of peace and in
order to begin the healing process of our nation. He
did not say he was leaving the Palace due to any kind
of inability and that he was going to re-assume the
presidency as soon as the disability disappears;
(3) He expressed his gratitude to the people for the
opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve
the people as President;
(4) He assured that he will not shirk from any future
challenge that may come ahead in the same service of
our country. Petitioner’s reference is to a future
challenge after occupying the office of the president
which he has given up;
and
(5) He called on his supporters to join him in the
promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national
spirit of reconciliation and solidarity could not be
attained if he did not give up the presidency.
10. Resignation is a factual question and
its elements are beyond quibble: (1) there must be
an intent to resignand (2) the intent must be coupled
by acts of relinquishment. The validity of a resignation
is not governed by any formal requirement as to form.
It can be oral. It can be written. It can be express. It
can be implied. As long as the resignation is clear, it
must be given legal effect.
11. A public official has the right not to serve if he
really wants to retire or resign. Nevertheless, if at the
81
time he resigns or retires, a public official is facing
administrative or criminal investigation or prosecution,
such resignation or retirement will not cause the
dismissal of the criminal or administrative proceedings
against him. He cannot use his resignation or
retirement to avoid prosecution.
Recognition of Presidency of Arroyo
12. The issue whether the Supreme Court has
jurisdiction to review the claim of temporary inability
of former President Estrada and thereafter revise the
decision of both Houses of Congress recognizing
Arroyo as President is political in nature and
addressed solely to Congress by constitutional fiat—it
is a political issue which cannot be decided by the
Supreme Court without transgressing the principle of
separation of powers.
13. Implicitly clear in the recognition by both houses
of Congress of Arroyo as President is the premise that
the inability of former President Estrada is no longer
temporary.
14. Former President Estrada cannot successfully
claim that he is a President on leave on the ground
that he is merely unable to govern temporarily since
such claim has been laid to rest by Congress and the
decision that President Arroyo is the de jure President
made by a co-equal branch of government cannot be
reviewed by the Supreme Court.
Conviction by Impeachment as a Bar to
Prosecution
15. The Supreme Court rejects former President
Estrada’s argument that he cannot be prosecuted for
the reason that he must first be convicted in the
impeachment proceedings. His impeachment trial was
aborted by the walkout of the prosecutors and by the
events that led to his loss of the presidency. Indeed,
on February 7, 2001, the Senate passed Senate
Resolution No. 83 “Recognizing that the Impeachment
Court is Functus Officio.” Since the Impeachment
Court is now functus officio, it is untenable for
petitioner to demand that he should first be
impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual
bar against his prosecution. It will place him in a
better situation than a non-sitting President who has
not been subjected to impeachment proceedings and
yet can be the object of a criminal prosecution.
Presidential Immunity from Suit
16. Estrada does NOT enjoy immunity from suit.
Incumbent Presidents are immune from suit or from
being brought to court during the period of their
incumbency and tenure but not beyond in accordance
with the ruling inIn Re: Saturnino Bermudez.
17. The cases filed against petitioner Estrada are
criminal in character (plunder, bribery and graft and
corruption). Estrada cannot cite any decision of this
Court licensing the President to commit criminal acts
and wrapping him with post-tenure immunity from
liability. The rule is that unlawful acts of public officials
are not acts of the State and the officer who acts
illegally is not acting as such but stands in the same
footing as any other trespasser.
Public Office is a Public Trust
18. One of the great themes of the 1987 Constitution
is that a public office is a public trust.
 It declared as a state policy that “(t)he State shall
maintain honesty and integrity in the public
service and take positive and effective measures
against graft and corruption.”
 It ordained that “(p)ublic officers and employees
must at all times be accountable to the people,
serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.”
 It set the rule that “(t)he right of the State to
recover properties unlawfully acquired by public
officials or employees, from them or from their
nominees or transferees, shall not be barred by
prescription, laches or estoppel.”
 It maintained the Sandiganbayan as an anti-graft
court.
 It created the office of the Ombudsman and
endowed it with enormous powers, among which
is to “(investigate on its own, or on complaint by
any person, any act or omission of any public
official, employee, office or agency, when such act
or omission appears to be illegal, unjust,
improper, or inefficient.” The Office of the
Ombudsman was also given fiscal autonomy.
Theory of Derivative Prejudice
19. The Court cannot adopt former President
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Estrada’s theory of derivative prejudice, i.e., that the
prejudice of the Ombudsman flows to his
subordinates.
20. Our Revised Rules of Criminal Procedure give
investigating prosecutors the independence to make
their own findings and recommendations albeit they
are reviewable by their superiors. They can be
reversed but they cannot be compelled to change
their recommendations nor can they be compelled to
prosecute cases which they believe deserve dismissal.
In other words, investigating prosecutors should not
be treated like unthinking slot machines. Moreover, if
the respondent Ombudsman resolves to file the cases
against the petitioner and petitioner believes that the
finding of probable cause against him is the result of
bias, he still has the remedy of assailing it before the
proper court.
24. In Re: Appointments dated March 30, 1998
of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City, and of Branch 24,
Cabanatuan City, respectively.
A.M. No. 98-5-01-SC, November 9, 1998
(In this case, the Supreme Court holds that the
ninety-day period mandated by Section 4(1), Article
VIII of the 1987 Constitution for the filling of
vacancies in the Supreme Court, is restricted by
Section 15, Article VII of the 1987 Constitution,
prohibiting the President from making any
appointments within two months immediately before
the next presidential elections and up to the end of his
term; mentions and discusses “midnight
appointment”)
Facts:
Ricardo J. Francisco retired from his office as
Associate Justice of the Supreme Court. President
Fidel Ramos asked from the Judicial and Bar Council
(JBC) the final list of nominees from whom he will
choose and appoint to succeed the retired Justice. But
the JBC, headed by Chief Justice Narvasa,
encountered an apparent conflict between two
particular provisions of the Constitution regarding the
President’s power to appoint Members of the Supreme
Court and judges of lower courts. Section 15, Article
VII of the 1987 Constitution provides: “Two months
immediately before the next presidential elections and
up to the end of his term, a President or Acting
President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety.” However, Section
4(1), Article VIII of the 1987 Constitution seems to
allow the President to make appointments to
vacancies in the Supreme Court within the two-month
ban, to wit: “The Supreme Court shall be composed of
a Chief Justice and fourteen Associate Justices. It may
sit en banc or in its discretion, in divisions of three,
five, or seven Members. Any vacancy shall be filled
within ninety days from the occurrence thereof.”
President Fidel Ramos was of the view that the
election-ban provision under Section 15, Article VII
applies only to executive appointments or
appointments in the Executive branch of the
government, the whole article being entitled
EXECUTIVE DEPARTMENT. He also noted that
appointments to the Judiciary have special, specific
provisions applicable to them, citing Sec. 4 (1), Article
VIII and Section 9, Article VIII.
The JBC resolved to refer this apparent
constitutional conflict to the Supreme Court En Banc.
On March 30, 1998, however, President Ramos sent to
the Chief Justice the appointment letters of two (2)
Judges of the Regional Trial Court: Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta. This was
about less than a month before the May 11, 1998
elections.
Issue:
Whether or not the appointment of the two RTC
Judges was validly made.
Ruling:
The Supreme Court En Banc, through Chief
Justice Narvasa, holds that the appointment of the
two RTC Judges in this case is void.
It is the Court’s view that during the period
stated in Section 15, Article VII of the Constitution (or
two months immediately before the next presidential
elections and up to the end of his term), the President
is not required to make appointments to the courts;
and he is not allowed to do so. Further, Sections
4(1) and 9 of Article VIII simply mean that the
President is required to fill vacancies in the
courts within the time frames provided therein,
unless prohibited by Section 15 of Article VII. It
is noteworthy that the prohibition on
83
appointments comes into effect only once every
six years.
The Supreme Court explains that Section 15,
Article VII is directed against two types of
appointments: (1) those made for buying votes, and
(2) those made for partisan considerations.
The first refers to those appointments made
within the two months preceding a Presidential
election and are similar to those that are declared
election offenses in the Omnibus Election Code (i.e.
vote-buying and vote-selling, and appointment of new
employees, creation of new position, promotion or
giving of salary increases for purposes of influencing
the election).
The second type of appointments prohibited by
Section 15, Article VII consists of the so-called
“midnight” appointments. In Aytona v. Castillo, it was
held that after the proclamation of Diosdado
Macapagal as duly elected President, President Carlos
P. Garcia, who was defeated in his bid for reelection,
became no more than a “caretaker” administrator
whose duty was to “prepare for the orderly transfer of
authority to the incoming President.” Said the Court:
“The filling up of vacancies in important positions, if
few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need
for the appointment and appointee's qualifications
may undoubtedly be permitted. But the issuance of
350 appointments in one night and the planned
induction of almost all of them in a few hours before
the inauguration of the new President may, with some
reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant
positions irrespective of fitness and other conditions,
and thereby to deprive the new administration of an
opportunity to make the corresponding
appointments.” The Court recognizes the possibility of
appointments to important positions that must be
made even after the proclamation of the new
President. The outgoing President can make these
appointments, “so long as they are few and so spaced
as to afford some assurance of deliberate action and
careful consideration of the need for the appointment,
and the appointee’s qualifications.”
The Court notes that the exception in Section 15
of Article VII is much narrower than that recognized in
Aytona. The exception allows only the making of
temporary appointments to executive positions, when
continued vacancies will prejudice public service or
endanger public safety. Section 15 Article VII greatly
restricts the appointing power of the President during
the period of the ban.
In case of conflict, Section 4(1) of Article VIII
should yield to Section 15 of Article VII of the
Constitution. The Supreme Court points out that the
instruction wherein “any vacancy shall be filled within
ninety days” (in the last sentence of Section 4(1) of
Article VIII) contrasts with the prohibition in Section
15, Article VII, which is couched in stronger negative
language: that “a President or Acting President shall
not make appointments.” Further, the prevention of
vote-buying and similar evils outweighs the need for
avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can
abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every
six years. Moreover, those occurring in the lower
courts can be filled temporarily by designation. On the
other hand, prohibited appointments are long lasting
and permanent in their effects. They may, in fact,
influence the results of elections. It is for this reason
that the same is considered an election offense.
The appointments of Valenzuela and Vallarta on
March 30, 1998 (transmitted to the Office of the Chief
Justice on May 14, 1998) were unquestionably made
during the period of the ban. Consequently, they
come within the operation of the first prohibition
relating to appointments that are considered to be for
the purpose of buying votes or influencing the
election. While the filling of vacancies in the judiciary
is undoubtedly in the public interest, there is no
showing in this case of any compelling reason to
justify the making of the appointments during the
period of the ban. On the other hand, as already
discussed, there is a strong public policy for the
prohibition against appointments made within the
period of the ban.
25. Case Summary
De Castro v. Judicial and Bar Council (2010)
G.R. No. 191002 | 2010-03-17
Subject:
Locus Standi, Taxpayer’s Suit, Citizen’s Suit, Justiciable
Issue, Midnight Appointment Ban, Statutory
Construction, Judicial and Bar Council, “Acting” Chief
84
Justice under the Judiciary Act of 1948, Chief Justice,
Mandamus, Ministerial Act, Discretionary Act
Facts:
This case involves several petitions filed either for the
prohibition of or mandamus for the Judicial and Bar
Council (JBC) to submit to the President its list of
nominees for the position of Chief Justice. The case
also raised the issue on whether the appointment of
the next Chief Justice by the incumbent President
GMA is a midnight appointment prohibited by the
Constitution.
The controversy arose from the forthcoming
compulsory retirement of Chief Justice Puno on May
17, 2010 or seven days after the presidential election.
On 22 December 2009, Congressman Matias
Defensor, an ex-officio member of the JBC, addressed
a letter to the JBC and requested that the process for
nominations to the office of the Chief Justice be
commenced immediately. Consequently, the JBC
passed a resolution unanimously agreeing to start the
process of filling up the position of Chief Justice. The
process has already begun, however, the JBC is not
yet decided on when to submit to the President its list
of nominees due to controversy in this case being
unresolved.
The parties frequently cited the case of In Re
Appointments of Valenzuela and Vallarta
(Valenzuela) as a precedent, which held that the
prohibition of the President to make “midnight
appointments” under Section 15, Article VII applies to
appointments in the judiciary.
Held:
Locus Standi
1. Locus standi is defined as “a right of appearance in
a court of justice on a given question.”
2. It has been held that the interest of a person
assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not
only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby
in some definite way.
3. It must appear that the person complaining has
been or is about to be denied some right or privilege
to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason
of the statute or the act complained of.
4. Legal standing is a peculiar concept in constitutional
law because in some cases, suits are not brought by
parties who have been personally injured by the
operation of law or any other government act but by
concerned citizens, taxpayers or voters who actually
sue in the public interest.
Taxpayer’s Suit vs. Citizen’s Suit
5. In Beauchamp v. Silk, it was held that “in a
taxpayer’s suit, the plaintiff is affected by the
expenditure of public funds, while in a citizen’s suit,
the plaintiff is but a mere instrument of the public
concern.”
6. Terr v. Jordan held that “the right of a citizen and a
taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be
denied.”
Transcendental Importance
7. The Court retains the broad discretion to waive the
requirement of legal standing in favor of any petitioner
when the matter involved has transcendental
importance, or otherwise requires a liberalization of
the requirement.
Justiciable Issue
8. Although the position is not yet vacant, the fact
that the JBC began the process of nomination
pursuant to its rules and practices, although it has yet
to decide whether to submit the list of nominees to
the incumbent outgoing President or to the next
President, makes the situation ripe for judicial
determination.
9. There is no need to wait for the occurrence of the
vacancy in order for the principal issue to be ripe for
judicial determination by the Court. It is enough that
one alleges conduct arguably affected with a
constitutional interest, but seemingly proscribed by
the Constitution.
85

10. A reasonable certainty of the occurrence of the
perceived threat to a constitutional interest is
sufficient to afford a basis for bringing a challenge,
provided the Court has sufficient facts before it to
enable to intelligently adjudicate the issues.
Midnight Appointment Ban
11. The prohibition against presidential appointments
under Section 15, Article VII does not extend to
appointments in the Judiciary.
12. Article VII is devoted to the Executive Department.
Specifically, the presidential power of appointment is
dealt with in Sections 14, 15 and 16 of the Article. On
the other hand, Article VIII is dedicated to the Judicial
Department. Section 4(1) and Section 9 specifically
provide for the appointment of the Supreme Court
Justices.
13. Had the framers intended to extend the
prohibition contained in Section 15, Article VII to the
appointment of Members of the Supreme Court, they
could have explicitly done so. They could not have
ignored the meticulous ordering of the provisions.
Statutory Construction
14. The usage in Section 4(1), Article VIII of the word
“shall” constitutes an imperative duty on the President
to make an appointment of a Member of the Supreme
Court within 90 days from the occurrence of the
vacancy.
15. It is the intent of the Constitutional Commission to
have Section 4(1), Article VIII stand independently of
any other provision, least of all one found in Article
VII. The two provisions had no irreconcilable conflict,
regardless of Section 15, Article VII being couched in
the negative.
16. The enactment should be construed with
reference to its intended scope and purpose, and the
court should seek to carry out this purpose rather
than to defeat it.
Rationale for the Prohibition
17. One of the reasons underlying the adoption of
Section 15, Article VII was to eliminate midnight
appointments, or appointments made for partisan
considerations, from being made by an outgoing Chief
Executive.
18. In contrast, the appointments to the Judiciary
made after the establishment of the JBC would not be
suffering from such defects because of the JBC’s prior
processing of candidates.
Judicial and Bar Council
19. The creation of the JBC was precisely intended to
depoliticize the Judiciary by doing away with the
intervention of the Commission on Appointments.
20. The intervention of the JBC eliminates the danger
that appointments to the Judiciary can be made for
the purpose of buying votes in a coming presidential
election, or of satisfying partisan considerations
because any recommended candidate first had to
undergo the vetting of the JBC and pass muster there.
21. It is mandatory for the JBC to submit to the
President the list of nominees to fill a vacancy in the
Supreme Court in order to enable the President to
appoint one of them within the 90-day period from the
occurrence of the vacancy.
22. The JBC has no discretion to submit the list of
nominees to fill a vacancy in the Supreme Court to the
President after the vacancy occurs, because that
shortens the 90-day period allowed by the
Constitution for the President to make the
appointment.
Valenzuela Ruling Reversed
23. Valenzuela arbitrarily ignored the express intent of
the Constitutional Commission to have Section 4(1),
Article VIII stand independently of any other
provision, least of all one found in Article VII.
24. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers
rather than on the deliberations of the Constitutional
Commission.
25. To hold like the Court did in Valenzuela that
Section 15 extends to appointments to the Judiciary
further undermines the intent of the Constitution of
86
ensuring the independence of the Judicial Department
from the Executive and Legislative Departments.
Appointment to the Supreme Court
26. The Supreme Court is composed of a Chief Justice
and 14 Associate Justices, who all shall be appointed
by the President from a list of at least three nominees
prepared by the JBC for every vacancy, which
appointments require no confirmation by the
Commission on Appointments.
27. With reference to the Chief Justice, he or she is
appointed by the President as Chief Justice, and the
appointment is never in an acting capacity.
28. The framers intended the position of Chief Justice
to be permanent, not one to be occupied in an acting
or temporary capacity.
“Acting” Chief Justice under the Judiciary Act of
1948
29. Section 12 of the Judiciary Act of 1948 only
responds to a rare situation in which the new Chief
Justice is not yet appointed, or in which the incumbent
Chief Justice is unable to perform the duties and
powers of the office.
30. It is to be noted, however, that the Judiciary Act
was enacted because the Chief Justice appointed
under the 1935 Constitution was subject to the
confirmation of the Commission on Appointments, and
the confirmation process might take longer than
expected.
Chief Justice
31. The Chief Justice, as the head of the entire
Judiciary, performs functions absolutely significant to
the life of the nation.The lack of any appointed
occupant of the office of Chief Justice harms the
independence of the Judiciary.
32. The appointment of the next Chief Justice by the
incumbent President is preferable to having the
Associate Justice who is first in precedence take over.
Mandamus
33. Mandamus shall issue when any tribunal,
corporation, board, officer or person unlawfully
neglects the performance of an act that the law
specifically enjoins as a duty resulting from an office,
trust, or station.
34. Mandamus is not available to direct the exercise of
a judgment or discretion in a particular way.
35. For mandamus to lie, the following must be
complied with: (a) the plaintiff has a clear legal right
to the act demanded; (b) it must be the duty of the
defendant to perform the act, because it is mandated
by law; (c) the defendant unlawfully neglects the
performance of the duty enjoined by law; (d) the act
to be performed is ministerial, not discretionary; and
(e) there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law.
Ministerial Act vs. Discretionary Act
36. A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of facts, in
a prescribed manner, in obedience to the mandate of
a legal authority, without regard to or the exercise of
his own judgment upon the propriety or impropriety of
the act done. The duty is ministerial only when the
discharge of the same requires neither the exercise of
official discretion or judgment.
37. A discretionary act or duty is one in which the law
imposes a duty upon a public officer and gives the
right to decide how or when the duty shall be
performed.
38. The duty of the JBC to submit a list of
nominees before the start of the President’s
mandatory 90-day period to appoint is ministerial,
but its selections of the candidates whose names will
be in the list to be submitted to the President lies
within the discretion of the JBC.
26. Case Summary
Jardeleza vs. Sereno (2014)
G.R. No. 213181 | 2014-08-19
Subject: The Supreme Court, in the exercise of its
Power of Supervision over the JBC, has constitutional
bases to assume jurisdiction over the case; Remedy of
Mandamus is not available (JBC’s duty to nominate is
discretionary); Remedy of Certiorari is available (under
expanded Power of Judicial Review); Unanimity Rule
87
of the JBC applies only when the moral fitness of an
applicant is put in issue; Uniformity rule was
improperly applied with respect to the charge on
Jardeleza's past handling of government cases;
Uniformity rule applies to allegations of extra-marital
affair and acts of insider-trading; Availability of Due
Process in the Proceedings of the JBC; Under JBC
rules, an applicant has the right to be heard and to
answer the accusations against him; The application
of the “unanimity rule” on integrity resulted in
Jardeleza’s deprivation of his right to due process;
Need to Revisit JBC’s Internal Rules;
Facts:
Due to the imminent compulsory retirement of
Associate Supreme Court Justice Roberto Abad on May
22, 2014, the Judicial and Bar Council (JBC)
announced the opening for application or
recommendation for the said vacated position.
The JBC received a letter from Dean Danilo
Concepcion of the University of the Philippines
nominating petitioner Francis H. Jardeleza, incumbent
Solicitor General of the Republic, for the said position.
Jardeleza was included in the names of candidates, as
well as in the schedule of public interviews. Jardeleza
was interviewed by the JBC.
Jardeleza received telephone calls from incumbent JBC
member, Justice Aurora Lagman, who informed him
that during the meetings held, Chief Justice Sereno,
who served as JBC ex-officio Chairperson, manifested
that she would be invoking Section 2, Rule 10 of JBC-
0094 against him. Jardeleza was then directed to
“make himself available” before the JBC on June 30,
2014, during which he would be informed of the
objections to his integrity.
Jardeleza filed a letter-petition to the Supreme Court
(SC) praying that the Court, in the exercise of its
constitutional power of supervision over the JBC, issue
an order: (1) directing the JBC to give him at least five
(5) working days written notice of any hearing of the
JBC to which he would be summoned; and the said
notice to contain the sworn specifications of the
charges against him by his oppositors, and supporting
witnesses, if any, and copies of documents in support
of the charges; (2) allowing him to cross-examine his
oppositors and supporting witnesses, if any, to be
conducted in public (3) directing the JBC to reset the
hearing scheduled on June 30, 2014 to another date;
and (4) directing the JBC to disallow Chief Justice
Sereno from participating in the voting on June 30,
2014 for the position vacated by Associate Justice
Abad.
According to the JBC, Chief Justice Sereno questioned
Jardeleza’s ability to discharge the duties of his office
as shown in a confidential legal memorandum over his
handling of an international arbitration case for the
government. Jardeleza was also informed that
Associate Justice Carpio appeared before the JBC and
disclosed confidential information which, to Chief
Justice Sereno, characterized his (Jardeleza) integrity
as dubious.
During the June 30, 2014 meeting, Jardeleza was
asked by Chief Justice Sereno if he wanted to defend
himself against the integrity issues raised against him.
He answered that he would defend himself provided
that due process would be observed. Jardeleza
requested the JBC to defer its meeting considering
that the Court en banc would meet the next day to act
on his pending letter-petition. Jardeleza was thereafter
excused from the meeting.
However, later that same day, and apparently denying
Jardeleza’s request for deferment of the proceedings,
the JBC continued its deliberations and proceeded to
vote for the nominees to be included in the shortlist.
The JBC released the subject shortlist of four (4)
nominees which included: Apolinario D. Bruselas, Jr.,
Jose C. Reyes, Jr., Maria Gracia M. Pulido Tan, and
Reynaldo B. Daway. The shortlist did not include
Jardeleza.
A newspaper article was later published in the online
portal of the Philippine Daily Inquirer, stating that the
Court’s Spokesman, Atty. Theodore Te, revealed that
there were actually five nominees who made it to the
JBC shortlist, but one nominee could not be included
because of the invocation of Rule 10, Section 2 of the
JBC rules.
In its July 8, 2014 Resolution, the SC noted
Jardeleza’s letter-petition in view of the transmittal of
the JBC list of nominees to the Office of the President,
“without prejudice to any remedy available in law and
the rules that petitioner may still wish to pursue.”
Hence, Jardeleza filed the present petition for
certiorari and mandamus under Rule 65 with prayer
for the issuance of a Temporary Restraining Order
88
(TRO), seeking to compel the JBC to include him in
the list of nominees for Supreme Court Associate
Justice, on the grounds that the JBC and Chief Justice
Sereno acted in grave abuse of discretion amounting
to lack or excess of jurisdiction in excluding him,
despite having garnered a sufficient number of votes
to qualify for the position. Jardeleza posited that,
having secured the sufficient number of votes (4 out
of 6), it was ministerial on the part of the JBC to
include Jardeleza in the shortlist.
For its part, the JBC explained that, as a general rule,
an applicant is included in the shortlist when he or she
obtains an affirmative vote of at least a majority of all
the members of the JBC. When Section 2, Rule 10 of
JBC-009, however, is invoked because an applicant’s
integrity is challenged, a unanimous vote is required.
Thus, when Chief Justice Sereno invoked the said
provision, Jardeleza needed the affirmative vote of all
the JBC members to be included in the shortlist. In the
process, Chief Justice Sereno’s vote against Jardeleza
was not counted. Even then, he needed the votes of
the five (5) remaining members. He only got four (4)
affirmative votes. In contrast, applicant Reynaldo B.
Daway, who got four (4) affirmative votes, was
included in the shortlist because his integrity was not
challenged. As to him, the “majority rule” was
considered applicable.
At issue is the correct application of Section 2, Rule 10
JBC-009 and its effects, if any, on the substantive
rights of applicants.
Held:
I. Procedural Issues
The Supreme Court, in the exercise of its Power
of Supervision over the JBC, has constitutional
bases to assume jurisdiction over the case
1. Section 8, Article VIII of the 1987 Constitution,
which provides for the creation of the JBC, states that:
“A Judicial and Bar Council is hereby created under
the supervision of the Supreme Court...”
2. Jurisprudence provides the definition and scope of
supervision. It is the power of oversight, or the
authority to see that subordinate officers perform their
duties. It ensures that the laws and the rules
governing the conduct of a government entity are
observed and complied with. Supervising officials see
to it that rules are followed, but they themselves do
not lay down such rules, nor do they have the
discretion to modify or replace them. If the rules are
not observed, they may order the work done or
redone, but only to conform to such rules. They may
not prescribe their own manner of execution of the
act. They have no discretion on this matter except to
see to it that the rules are followed.
3. The supervisory authority of the Court over the JBC
covers the overseeing of compliance with its rules. In
this case, Jardeleza’s principal allegations in his
petition merit the exercise of this supervisory
authority.
Remedy of Mandamus is not available (JBC’s
duty to nominate is discretionary)
4. The Court agrees with the JBC that a writ of
mandamus is not available. “Mandamus lies to compel
the performance, when refused, of a ministerial duty,
but not to compel the performance of a discretionary
duty. Mandamus will not issue to control or review the
exercise of discretion of a public officer where the law
imposes upon said public officer the right and duty to
exercise his judgment in reference to any matter in
which he is required to act. It is his judgment that is
to be exercised and not that of the court. There is no
question that theJBC’s duty to nominate is
discretionary and it may not be compelled to do
something.
Remedy of Certiorari is available (under
expanded Power of Judicial Review)
5. Under Section 1 of Rule 65, a writ of certiorari is
directed against a tribunal exercising judicial or quasi-
judicial function. Judicial functions are exercised by a
body or officer clothed with authority to determine
what the law is and what the legal rights of the parties
are with respect to the matter in controversy. Quasi-
judicial function is a term that applies to the action or
discretion of public administrative officers or bodies
given the authority to investigate facts or ascertain
the existence of facts, hold hearings, and draw
conclusions from them as a basis for their official
action using discretion of a judicial nature.
6. Respondent JBC opposed the petition for certiorari
on the ground that, in the performance of its function
of recommending appointees for the judiciary, the JBC
does not exercise judicial or quasi-judicial functions.
89

7. It has been judicially settled that a petition for
certiorari is a proper remedy to question the act of
any branch or instrumentality of the government on
the ground of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or
instrumentality of the government, even if the latter
does not exercise judicial, quasi-judicial or ministerial
functions.
8. In this case, Jardeleza cries that although he
earned a qualifying number of votes in the JBC, it was
negated by the invocation of the “unanimity rule” on
integrity in violation of his right to due process
guaranteed not only by the Constitution but by the
Council’s own rules. For said reason, the Court is of
the position that it can exercise the expanded judicial
power of review vested upon it by Section 1, Art VIII
of the 1987 Constitution.
II. Substantive Issues
Unanimity Rule of the JBC applies only when
the moral fitness of an applicant is put in issue
9. The JBC has been tasked to screen aspiring judges
and justices, making certain that the nominees
submitted to the President are all qualified and
suitably best for appointment. In this way, the
appointing process itself is shielded from the
possibility of extending judicial appointment to the
undeserving and mediocre and, more importantly, to
the ineligible or disqualified.
10. A set of uniform criteria had to be established in
the ascertainment of “whether one meets the
minimum constitutional qualifications and possesses
qualities of mind and heart expected of him” and his
office. The JBC had put these criteria in writing, now
in the form of JBC-009. As a qualification, the term
“integrity” is taken to refer to a virtue, such that
“integrity is the quality of person’s character.”
11. Under Rule 2, Section 10 of JBC-009, a higher
voting requirement is absolute in cases where the
integrity of an applicant is questioned. Simply put,
when an integrity question arises, the voting
requirement for his or her inclusion as a nominee to a
judicial post becomes “unanimous” instead of the
“majority vote” . Considering that JBC-009 employs
the term “integrity” as an essential qualification for
appointment, and its doubtful existence in a person
merits a higher hurdle to surpass (the unanimous vote
of all the members of the JBC), the Court is of the
safe conclusion that “integrity” as used in the rules
must be interpreted uniformly. Hence, Section 2, Rule
10 of JBC-009 envisions only a situation where an
applicant’s moral fitness is challenged. It follows then
that the “unanimity rule” only comes into operation
when the moral character of a person is put in
issue. It finds no application where the question is
essentially unrelated to an applicant’s moral
uprightness.
Uniformity rule was improperly applied with
respect to the charge on Jardeleza's past
handling of government cases
12. The initial or original invocation of Section 2, Rule
10 of JBC-009 was grounded on Jardeleza’s “inability
to discharge the duties of his office” as shown in a
legal memorandum related to Jardeleza’s manner of
representing the government in a legal dispute. This
begets the question: Does his adoption of a specific
legal strategy in the handling of a case bring forth
challenge against his moral character? Does the
“unanimity rule” apply in cases where the main point
of contention is the professional judgment sans
charges or implications of immoral or corrupt
behavior?
13. While Chief Justice Sereno claims that the
invocation of Section 2, Rule 10 of JBC-009 was not
borne out of a mere variance of legal opinion but by
an “act of disloyalty” committed by Jardeleza in the
handling of a case, the fact remains that the basis for
her invocation of the rule was the “disagreement” in
legal strategy as expressed by a group of international
lawyers. The approach taken by Jardeleza in that case
was opposed to that preferred by the legal team. For
said reason, criticism was hurled against his
“integrity.” The invocation of the “unanimity rule” on
integrity traces its roots to the exercise of his
discretion as a lawyer and nothing else. No connection
was established linking his choice of a legal strategy
to a treacherous intent to trounce upon the country’s
interests or to betray the Constitution.
14. A lawyer has complete discretion on what legal
strategy to employ in a case entrusted to him
provided that he lives up to his duty to serve his client
with competence and diligence, and that he exert his
best efforts to protect the interests of his client within
the bounds of the law. Consonantly, a lawyer is not an
90
insurer of victory for clients he represents. Stripped of
a clear showing of gross neglect, iniquity, or immoral
purpose, a strategy of a legal mind remains a legal
tactic acceptable to some and deplorable to others. It
has no direct bearing on his moral choices.
15. The Court cannot consider Chief Justice Sereno's
invocation of Section 2, Rule 10 of JBC-009 as
conformably within the contemplation of the rule. To
fall under Section 2, Rule 10 of JBC-009, there must
be a showing that the act complained of is, at the
least, linked to the moral character of the person and
not to his judgment as a professional. What this
disposition perceives, therefore, is the inapplicability of
Section 2, Rule 10 of JBC-009 to the original ground of
its invocation.
Uniformity rule applies to allegations of extra-
marital affair and acts of insider-trading
16. The minutes of the JBC meetings reveal that
during the June 30, 2014 meeting, not only the
question on his actuations in the handling of a case
was called for explanation by the Chief Justice, but
two other grounds as well tending to show his lack of
integrity: a supposed extra-marital affair in the past
and alleged acts of insider trading. These grounds
were raised for the first time only during the June 30,
2014 meeting. The inclusion of these issues had its
origin from newspaper reports that the Chief Justice
might raise issues of “immorality” against Jardeleza.
The Chief Justice then deduced that the “immorality”
issue referred to by the media might have been the
incidents that could have transpired when Jardeleza
was still the General Counsel of San Miguel
Corporation.
17. Jurisprudence is replete with cases where a
lawyer who engages in extra-marital affairs is deemed
to have failed to adhere to the exacting standards of
morality and decency which every member of the
Judiciary is expected to observe.
18. On the other hand, insider trading is an offense
that assaults the integrity of our vital securities
market. In its barest essence, insider trading involves
the trading of securities based on knowledge of
material information not disclosed to the public at the
time. Clearly, an allegation of insider trading involves
the propensity of a person to engage in fraudulent
activities that may speak of his moral character.
19. These two issues (extra-marital affair and acts of
insider-trading) can be properly categorized as
“questions on integrity” under Section 2, Rule 10 of
JBC-009. They fall within the ambit of “questions on
integrity.” Hence, the “unanimity rule” may come into
operation as the subject provision is worded.
Availability of Due Process in the Proceedings
of the JBC
20. The JBC insists that it is not obliged to afford
Jardeleza the right to a hearing in the fulfillment of its
duty to recommend. The JBC, as a body, is not
required by law to hold hearings on the qualifications
of the nominees. The process by which an objection is
made based on Section 2, Rule 10 of JBC-009 is not
judicial, quasi-judicial, or fact-finding, for it does not
aim to determine guilt or innocence akin to a criminal
or administrative offense but to ascertain the fitness
of an applicant vis-à-vis the requirements for the
position. Being sui generis, the proceedings of the JBC
do not confer the rights insisted upon by Jardeleza.
21. While the facets of criminal and administrative
due process are not strictly applicable to JBC
proceedings, their peculiarity is insufficient to justify
the conclusion that due process is not
demandable. The fact that a proceeding is sui generis
and is impressed with discretion, however, does not
automatically denigrate an applicant’s entitlement to
due process. It is well-established in jurisprudence
that disciplinary proceedings against lawyers are sui
generis in that they are neither purely civil nor purely
criminal; they involve investigations by the Court into
the conduct of one of its officers, not the trial of an
action or a suit. In such posture, there can be no
occasion to speak of a complainant or a prosecutor.
22. The Court subscribes to the view that in cases
where an objection to an applicant’s qualifications is
raised, the observance of due process neither negates
nor renders illusory the fulfillment of the duty of JBC
to recommend. This holding is not an encroachment
on its discretion in the nomination process. Actually,
its adherence to the precepts of due process supports
and enriches the exercise of its discretion. When an
applicant, who vehemently denies the truth of the
objections, is afforded the chance to protest, the JBC
is presented with a clearer understanding of the
situation it faces, thereby guarding the body from
making an unsound and capricious assessment of
information brought before it. The JBC is not expected
91
to strictly apply the rules of evidence in its assessment
of an objection against an applicant. Just the same, to
hear the side of the person challenged complies with
the dictates of fairness for the only test that an
exercise of discretion must surmount is that of
soundness.
Under JBC rules, an applicant has the right to
be heard and to answer the accusations against
him
23. The JBC contends that Sections 3 and 4, Rule 10
of JBC-009 are merely directory in nature as can be
gleaned from the use of the word “may.” In short, the
JBC has the discretion to hold or not to hold a hearing
when an objection to an applicant’s integrity is raised
and that it may resort to other means to accomplish
its objective.
24. While the JBC may so rely on “other means” such
as character clearances, testimonials, and discreet
investigation to aid it in forming a judgment of an
applicant’s qualifications, the Court cannot accept a
situation where JBC is given a full rein on the
application of a fundamental right whenever a
person’s integrity is put to question. In such cases, an
attack on the person of the applicant necessitates his
right to explain himself.
25. The JBC’s own rules convince the Court to arrive
at this conclusion. The subsequent issuance of JBC-
010unmistakably projects the JBC’s deference to the
grave import of the right of the applicant to be
informed and corollary thereto, the right to be heard.
While JBC-010 does not articulate a procedure that
entails a trialtype hearing, it affords an applicant, who
faces “any complaint or opposition,” the right to
answer the accusations against him. This constitutes
the minimum requirements of due process.
The application of the “unanimity rule” on
integrity resulted in Jardeleza’s deprivation of
his right to due process
26. Due process, as a constitutional precept, does not
always and in all situations require a trial-type
proceeding. Due process is satisfied when a person is
notified of the charge against him and given an
opportunity to explain or defend himself.
27. Even as Jardeleza was verbally informed of the
invocation of Section 2, Rule 10 of JBC-009 against
him and was later asked to explain himself during the
meeting, still Jardeleza was deprived of his right to
due process when, contrary to the JBC rules (JBC-010
Rules), he was neither formally informed of the
questions on his integrity nor was provided a
reasonable opportunity to prepare his defense.
28. What precisely set off the protest of lack of due
process was the circumstance of requiring Jardeleza to
appear before the Council and to instantaneously
provide those who are willing to listen an intelligent
defense. Was he given the opportunity to do so? The
answer is yes, in the context of his physical presence
during the meeting. Was he given a reasonable
chance to muster a defense? No, because he was
merely asked to appear in a meeting where he would
be, right then and there, subjected to an inquiry. It
would all be too well to remember that the allegations
of his extra-marital affair and acts of insider trading
sprung up only during the June 30, 2014 meeting.
While the said issues became the object of the JBC
discussion on June 16, 2014, Jardeleza was not given
the idea that he should prepare to affirm or deny his
past behavior. These circumstances preclude the very
idea of due process in which the right to explain
oneself is given, not to ensnare by surprise, but to
provide the person a reasonable opportunity and
sufficient time to intelligently muster his response.
29. Jardeleza should have been included in the
shortlist submitted to the President for the vacated
position of Associate Justice Abad. This consequence
arose not from the unconstitutionality of Section 2,
Rule 10 of JBC-009, per se, but from the violation by
the JBC of its own rules of procedure and the basic
tenets of due process.
30. In criminal and administrative cases, the violation
of a party’s right to due process raises a serious
jurisdictional issue which cannot be glossed over or
disregarded at will. Where the denial of the
fundamental right of due process is apparent, a
decision rendered in disregard of that right is void for
lack of jurisdiction. This rule may well be applied to
the current situation for an opposing view submits to
an undue relaxation of the Bill of Rights.
31. Indeed, the invocation of Section 2, Rule 10 of
JBC-009 must be deemed to have never come into
operation in light of its erroneous application on the
original ground against Jardeleza’s integrity. The Court
upholds the JBC’s discretion in the selection of
92
nominees, but its application of the “unanimity rule”
must be applied in conjunction with Section 2, Rule 10
of JBC-010 being invoked by Jardeleza. Having been
able to secure four (4) out of six (6) votes, the only
conclusion left to propound is that a majority of the
members of the JBC, nonetheless, found Jardeleza to
be qualified for the position of Associate Justice and
this grants him a rightful spot in the shortlist
submitted to the President.
Need to Revisit JBC’s Internal Rules
32. It appears that the provision on the “unanimity
rule” is vague and unfair and, therefore, can be
misused or abused resulting in the deprivation of an
applicant’s right to due process--
(a) the invocation of the “unanimity rule” on integrity
is effectively a veto power over the collective will of a
majority. This should be clarified. Any assertion by a
member after voting seems to be unfair because it
effectively gives him or her a veto power over the
collective votes of the other members in view of the
unanimous requirement. While an oppositor-member
can recuse himself or herself, still the probability of
annulling the majority vote of the Council is quite
high.
(b) integrity as a ground has not been defined. While
the initial impression is that it refers to the moral fiber
of a candidate, it can be, as it has been, used to mean
other things. Not having been defined or described, it
is vague, nebulous and confusing. It must be distinctly
specified and delineated.
(c) it should explicitly provide who can invoke it as a
ground against a candidate. Should it be invoked only
by an outsider as construed by the respondent
Executive Secretary or also by a member?
(d) while the JBC vetting proceedings is "sui generis"
and need not be formal or trial type, they must meet
the minimum requirements of due process. As always,
an applicant should be given a reasonable opportunity
and time to be heard on the charges against him or
her, if there are any.
33. It is up to the JBC to fine-tune the rules
considering the peculiar nature of its function. It need
not be stressed that the rules to be adopted should be
fair, reasonable, unambiguous and consistent with the
minimum requirements of due process.
27. Case Summary
David vs. Arroyo
G.R. No. 171396 | 2006-05-03
Subject:
Moot and Academic, Locus Standi, Political
Question(Calling-out Power), Emergency Powers of
the President, Facial Challenge (Overbreadth
Doctrine), Facial Challenge (Vagueness), Section 17,
Article VII (Take Care Power or Control Power of the
President), Section 17, Article XII (Take Over Power
of the President), 'As Applied' Challenge,Acts of
Terrorism, Right to Peacably Assemble,
Facts:
On February 24, 2006, as the nation celebrated the
20th Anniversary of the Edsa People Power I,
President Arroyo issued Presidential Proclamation No.
1017 (PP 1017) 'declaring a state of national
emergency'. On the same day, the President also
issued General Order No. 5 implementing PP 1017 and
directing the AFP and PNP to take appropriate actions
'to suppress and prevent acts of terrorism and lawless
violence'
Thereafter, during the dispersal of the rallyists along
EDSA, police arrested (without warrant) Randolf S.
David, a UP professor and newspaper columnist, and
Ronald Llamas, president of party-list Akbayan.
Also, in the early morning of February 25,
2006,operatives of the Criminal Investigation and
Detection Group (CIDG) of the PNP,on the basis of PP
1017 and G.O. No. 5, raided the Daily Tribune offices
in Manila.
One week after the issuance of PP 1017 and GO No.
5, President Arroyo issued Proclamation No. 1021
declaring that the state of national emergency has
ceased to exist.
Petitions were filed challenging the constitutionality
of and G.O. No. 5 and PP 1017.
The factual basis cited by the Arroyo camp for the
executive issuances was the alleged existence of plot
attempts from the political opposition and NPA
to unseat or assassinate President Arroyo. The plot
93
attempts were a clear and present danger that
justified the orders.
Held:
Moot and Academic
1. A moot and academic case is one that ceases
to present a justiciable controversy by virtue
of supervening events so that a declaration
thereon would be of no practical use or value.
2. As a general rule, courts decline jurisdiction
over cases rendered moot. However, courts
will decide cases, otherwise moot and
academic, in the following situations:
(i) there is a grave violation of the
Constitution;
(ii) the exceptional character of the
situation and the paramount public
interest is involved;
(iii) when constitutional issue raised
requires formulation of controlling
principles to guide the bench, the bar,
and the public;
(iv the case is capable of repetition yet
evading review.
3. President Arroyo's issuance of PP 1021 did not
render the present petitions moot and
academic. During the eight days that PP 1017
was operative, the police officers committed
illegal acts in implementing it. Moreover, all
the above exceptions are present to justify the
Court's assumption of jurisdiction over the
petitions.
Locus Standi
4. In public suits, our courts adopt the 'direct
injury' test which states that the person who
impugns the validity of a statute must have 'a
personal and substantial interest in the case
such that he has sustained, or will sustain
direct injury as a result.
5. However, being a mere procedural
technicality, the requirement of locus
standi maybe waived. Thus, even where the
petitioners have failed to show direct injury,
they have been allowed to sue under the
principle of 'transcendental importance.'
6. Petitioners David, Llamas and the Tribune
suffered 'direct injury' resulting from the
'illegal arrest' and 'unlawful search' committed
by police operatives pursuant to PP 1017.
7. KMU's assertion that PP 1017 and G.O. No. 5
violated its right to peaceful assembly may be
deemed sufficient to give it legal
standing. Organizations may be granted
standing to assert the rights of their
members. The courts took judicial notice of
the announcement by the Office of the
President banning all rallies and canceling all
permits for public assemblies following the
issuance of PP 1017 and G.O. No. 5.
8. The national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing,
having no direct or potential injury which the
IBP as an institution or its members may
suffer as a consequence of the issuance of PP
No. 1017 and G.O. No.5. The mere invocation
by the IBP of its duty to preserve the rule of
law is too general an interest. However, in
view of the transcendental importance of the
issue, the Court vested them with locus standi.
Political Question, Calling-Out Power
9. While the President's 'calling-out' power is a
discretionary power solely vested in his
wisdom, 'this does not prevent an examination
of whether such power was exercised within
permissible constitutional limits or whether it
was exercised in a manner constituting grave
abuse of discretion.'
10. As to how the Court may inquire into the
President's exercise of power, the standard is
not correctness, but arbitrariness. The test is
that 'judicial inquiry can go no further than to
satisfy the Court not that the President's
decision is correct,' but that 'the President did
not act arbitrarily.'(citing Lansang v. Garcia)
11. To show arbitrariness, it must be shown that
the President's decision is totally bereft of
factual basis'. If this is not proven, the Court
cannot thereafter undertake an independent
94
 investigation beyond the pleadings.' (citing IBP
v Zamora)
12. Petitioners failed to show that President
Arroyo's exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual
basis. The government presented reports of
events leading to the issuance PP 1017 (i.e.
escape and threats of Magdalo group,
defections in military, etc.) which was not
contradicted by petitioners. Hence, the
President was justified in issuing PP 1017
calling for military aid.
Facial Challenge (Over breadth Doctrine)
13. The over breadth doctrine is an analytical tool
developed for testing 'on their faces' statutes
in free speech cases. PP 1017 is not
primarily directed to speech or even speech-
related conduct. It is actually a call upon the
AFP to prevent or suppress all forms of lawless
violence.
14. Claims of facial over breadth are entertained
in cases involving statutes which, by their
terms, seek to regulate only 'spoken words'
and 'over breadth claims have been curtailed
when invoked against ordinary criminal laws
that are sought to be applied to protected
conduct.'
Facial Challenge (Vagueness)
15. Related to the 'over breadth' doctrine is the
'void for vagueness doctrine' which holds that
'a law is facially invalid if men of common
intelligence must necessarily guess at its
meaning and differ as to its application.' It is
subject to the same principles governing over
breadth doctrine. For one, it is also an
analytical tool for testing 'on their faces'
statutes in free speech cases. And like over
breadth, it is said that a litigant may challenge
a statute on its face only if it is vague in all its
possible applications.
Calling Out Power (First Provision of PP 1017)
16. Section 18, Article VII of the Constitution
grants the President, as Commander-in-Chief,
a 'sequence' of graduated powers. From the
most to the least benign, these are: the
calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing IBP v.
Zamora, the Court ruled that the only criterion
for the exercise of the calling-out power is
that 'whenever it becomes necessary,' the
President may call the armed forces 'to
prevent or suppress lawless violence,
invasion or rebellion.'
17. Considering the circumstances then
prevailing, President Arroyo found it necessary
to issue PP 1017. Owing to her Office's vast
intelligence network, she is in the best position
to determine the actual condition of the
country.
18. There is a distinction between the President's
authority to declare a 'state of rebellion' and
the authority to proclaim a? state of national
emergency?. In declaring a state of national
emergency, President Arroyo did not only rely
on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or
suppress lawless violence, invasion or
rebellion. She also relied on Section 17, Article
XII, a provision on the State's extraordinary
power to take over privately-owned public
utility and business affected with public
interest.
19. PP 1017 is not a declaration of Martial Law. It
is merely an exercise of President Arroyo's
calling-out power. As such, it cannot be used
to justify acts that only under a valid
declaration of Martial Law can be done.
specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and
agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers
which can be exercised by the President as
Commander-in-Chief only where there is a
valid declaration of Martial Law or suspension
of the writ of habeas corpus.
'Take Care' Power (Second Provision of PP
1017)
20. The second provision pertains to the power of
the President to ensure that the laws be
95
 faithfully executed. This is based on Section
17, Article VII of the Constitution.
21. PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate
'decrees.' Legislative power is peculiarly within
the province of the Legislature. Neither Martial
Law nor a state of rebellion nor a state of
emergency can justify President Arroyo's
exercise of legislative power by issuing
decrees. Presidential Decrees are laws which
are of the same category and binding force as
statutes because they were issued by then
President Marcos in the exercise of his
legislative power during the period of Martial
Law under the 1973 Constitution.
22. President Arroyo has no authority to enact
decrees. It follows that these decrees are void
and, therefore, cannot be enforced. With
respect to 'laws,' she cannot call the military to
enforce or implement certain laws, such as
customs laws, laws governing family and
property relations, laws on obligations and
contracts and the like. She can only order the
military, under PP 1017, to enforce laws
pertinent to its duty to suppress lawless
violence.
Take Over Power (Third Provision of PP 1017)
23. PP 1017 is unconstitutional insofar as it grants
the President, during a ?state of emergency?,
authority to temporarily take over or direct the
operation of any privately-owned public utility
or business affected with public interest,
without authority or delegation from Congress.
24. A distinction must be drawn between the
President's authority to declare 'a state of
national emergency' and to exercise
emergency powers. While the President alone
can declare a state of national emergency,
however, the exercise of emergency
powers, such as the taking over of privately
owned public utility or business affected with
public interest, requires a delegation from
Congress. The President has no absolute
authority to exercise allthe powers of the State
under Section 17, Article VII in the absence of
an emergency powers act passed by Congress.
25. Congress may grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other
emergency.
(2) The delegation must be for a
limited period only.
(3) The delegation must be subject to
such restrictions as the Congress may
prescribe.
(4) The emergency powers must be
exercised to carry out a national policy
declared by Congress.
'As Applied' Challenge
26. Courts do not declare statutes invalid merely
because they may afford an opportunity for
abuse in the manner of application. The
validity of a statute or ordinance is to be
determined from its general purpose and its
efficiency to accomplish the end desired, not
from its effects in a particular case.
'Acts of Terrorism'
27. G.O. No. 5 mandates the AFP and the PNP to
immediately carry out the 'necessary and
appropriate actions and measures to suppress
and prevent acts of terrorism and lawless
violence.'
28. The Court declares that the 'acts of terrorism'
portion of G.O. No. 5 is unconstitutional. Since
there is no law defining 'acts of terrorism,' it is
President Arroyo alone, under G.O. No. 5, who
has the discretion to determine what acts
constitute terrorism. Consequently, there can
be indiscriminate arrest without warrants,
breaking into offices and residences, taking
over the media enterprises. These acts go far
beyond the calling-out power of the President.
Yet these can be effected in the name of G.O.
No. 5 under the guise of suppressing acts of
terrorism.
Right to Peaceably Assemble
29. David's warrantless arrest was unjustified.
David, et al. were arrested while they were
exercising their right to peaceful assembly.
They were not committing any crime, neither
was there a showing of a clear and present
danger that warranted the limitation of that
right. As can be gleaned from circumstances,
96
 the charges of inciting to sedition and violation
of BP 880 were mere afterthought.
30. The wholesale cancellation of all permits to
rally is a blatant disregard of the principle that
'freedom of assembly is not to be limited,
much less denied, except on a showing of a
clear and present danger of a substantive evil
that the State has a right to prevent.'
31. Moreover, under BP 880, the authority to
regulate assemblies and rallies is lodged with
the local government units. They have the
power to issue permits and to revoke such
permits after due notice and hearing on the
determination of the presence of clear and
present danger. Here, petitioners were not
even notified and heard on the revocation of
their permits.
28. Case Summary
Bayan vs Zamora (2000)
G.R. No. 138570 | 2000-10-10
Subject:
Locus Standi; Visiting Forces Agreement (VFA); Senate
Concurrence on Treaties (Section 21, Article VII vs
Section 25, Article XVIII); Treaty (Ratification;
Concurrence of Senate); Pacta Sunt Servanda;
Statutory Construction (Special over General; Ubi Lex
Non Distinguit; Use of disjunctive “or’)
Facts:
On March 14, 1947, the Philippines (RP) and the
United States of America (US) forged a Military Bases
Agreement which formalized the use of installations in
the Philippine territory by United States military
personnel.
The RP-US Military Bases Agreement expired in 1991
without having been renewed. Notwithstanding, the
defense and security relationship between the
Philippines and the US continued pursuant to a Mutual
Defense Treaty entered into on August 30, 1951.
In 1997, negotiations began between the RP and US
for a Visiting Forces Agreement (VFA). President
Ramos approved the VFA, which was respectively
signed by Foreign Affairs Secretary Siazon and US
Ambassador Thomas Hubbard on February 10, 1998.
Subsequently, President Estrada ratified the VFA and
officially transmitted to the Senate of the Philippines
the Instrument of Ratification for concurrence
pursuant to Section 21, Article VII of the 1987
Constitution. The Senate, in turn, referred the VFA to
its Committee on Foreign Relations and Committee on
National Defense and Security for joint hearing.
Thereafter, Senate Resolution No. 443 was approved
by the Senate by a two-thirds (2/3) vote of its
members. It became re-numbered as Senate
Resolution No. 18.
On June 1, 1999, the VFA officially entered into force
after an Exchange of Notes between Foreign Affairs
Secretary Siazon and US Ambassador Hubbard.
The VFA provides for the mechanism for regulating
the circumstances and conditions under which US
Armed Forces and defense personnel may be present
in the Philippines.
Petitioners - as legislators, non-governmental
organizations, citizens and taxpayers - assail the
constitutionality of the VFA and impute grave abuse of
discretion in the ratification of the agreement.
Held:
Locus Standi
1. A party bringing a suit challenging the
constitutionality of a law, act, or statute must show
"not only that the law is invalid, but also that he has
sustained or in is in immediate, or imminent danger of
sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby
in some indefinite way." He must show that he has
been, or is about to be, denied some right or privilege
to which he is lawfully entitled, or that he is about to
be subjected to some burdens or penalties by reason
of the statute complained of.
2. Petitioners failed to show that they have sustained,
or are in danger of sustaining any direct injury as a
result of the enforcement of the VFA.
3. Inasmuch as no public funds raised by taxation are
involved in this case, and in the absence of any
allegation by petitioners that public funds are being
misspent or illegally expended, petitioners,
97
as taxpayers, have no legal standing to assail the
legality of the VFA.
4. Petitioners-legislators, as members of Congress,
do not possess the requisite locus standi to maintain
the present suit, in the absence of a clear showing of
any direct injury to their person or to the institution to
which they belong
5. Similarly, the IBP lacks the legal capacity to bring
this suit in the absence of a board resolution from its
Board of Governors authorizing its National President
to commence the present action.
6. Notwithstanding, in view of the paramount
importance and the constitutional significance of the
issues raised in the petitions, the Court, in the
exercise of its sound discretion, brushes aside the
procedural barrier and takes cognizance of the
petitions. In cases of transcendental importance, the
Court may relax the standing requirements and allow
a suit to prosper even where there is no direct injury
to the party claiming the right of judicial review.
Senate Concurrence on Treaties (Section 21,
Article VII vs Section 25, Article XVIII)
7. Petitioners argue that Section 25, Article XVIII is
applicable considering that the VFA has for its subject
the presence of foreign military troops in the
Philippines. Respondents maintain that Section 21,
Article VII should apply inasmuch as the VFA is not a
basing arrangement but an agreement which involves
merely the temporary visits of US personnel engaged
in joint military exercises.
8. Section 21, Article VII deals with treatise or
international agreements in general, in which case,
theconcurrence of at least two-thirds (2/3) of
all the Members of the Senate is required to
make the subject treaty, or international agreement,
valid and binding on the part of the Philippines. This
provision lays down the general rule on treatise or
international agreements and applies to any form
of treaty with a wide variety of subject
matter, such as, but not limited to, extradition or tax
treatise or those economic in nature. All treaties or
international agreements entered into by the
Philippines, regardless of subject matter, coverage, or
particular designation or appellation, requires the
concurrence of the Senate to be valid and effective.
9. In contrast, Section 25, Article XVIII is a special
provision that applies to treaties which involve the
presence of foreign military bases, troops or
facilities in the Philippines. Under this provision,
theconcurrence of the Senate is only one of the
requisites to render compliance with the constitutional
requirements and to consider the agreement binding
on the Philippines. Section 25, Article XVIII further
requires that "foreign military bases, troops, or
facilities" may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the
Senate, ratified by a majority of the votes cast in
a national referendum held for that purpose if
so required by Congress, and recognized as
such by the other contracting state.
10. The VFA is an agreement which defines the
treatment of United States troops and personnel
visiting the Philippines. It provides for the guidelines
to govern such visits of military personnel, and further
defines the rights of the United States and the
Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft,
importation and exportation of equipment, materials
and supplies.
11. Section 25, Article XVIII, which specifically
deals with treaties involving foreign military bases,
troops, or facilities, should apply in the instant
case. To a certain extent and in a limited sense,
however, the provisions ofsection 21, Article
VII will find applicability with regard to the issue and
for the sole purpose of determining the number of
votes required to obtain the valid concurrence of the
Senate.
Statutory Construction (Special over General)
12. A basic principle of statutory construction
mandates that general legislation must give way to a
special legislation on the same subject, and generally
be so interpreted as to embrace only cases in which
the special provisions are not applicable, and that
where two statutes are of equal theoretical application
to a particular case, the one designed therefor
specially should prevail. Lex specialis derogat generali.
Statutory Construction (Ubi lex non distinguit
nec nos distinguire debemos)
13. Section 25, Article XVIII does not require foreign
troops or facilities to be stationed or
98
placed permanently in the Philippines. It is specious to
argue that Section 25, Article XVIII is inapplicable to
mere transient agreements
Since the Constitution makes no distinction between
"transient' and "permanent".
Statutory Construction (use of the disjunctive
“or”)
14. We do not subscribe to the argument that Section
25, Article XVIII is not controlling since no foreign
military bases, but merely foreign troops and facilities,
are involved in the VFA.
15. The clause does not refer to "foreign military
bases, troops, or facilities" collectively but treats them
as separate and independent subjects. The use of
comma and the disjunctive word "or" clearly signifies
disassociation and independence of one thing from
the others included in the enumeration, such that, the
provision contemplates three different situations - a
military treaty the subject of which could be either (a)
foreign bases, (b) foreigntroops, or (c)
foreign facilities - any of the three standing alone
places it under the coverage of Section 25, Article
XVIII
Compliance with Section 25, Article XVIII
16. Section 25, Article XVIII disallows foreign military
bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it
must be under a treaty; (b) the treaty must be duly
concurred in by the Senate and, when so required
by congress, ratified by a majority of the votes cast by
the people in a national referendum; and
(c) recognized as a treaty by the other contracting
state.
2/3 Vote
17. The "concurrence requirement" under Section 25,
Article XVIII must be construed in relation to the
provisions of Section 21, Article VII which requires
that concurrence of a treaty, or international
agreement, be made by a two -thirds vote of all the
members of the Senate. Indeed, Section 25, Article
XVIII must not be treated in isolation to section 21,
Article, VII.
18. The Senate is composed of 24 senators. The two-
thirds requirement means that no less than 16
votes is necessary to ratify the VFA.
Recognized as a Treaty by other contracting
state
19. The phrase "recognized as a treaty" means that
the other contracting party accepts or
acknowledges the agreement as a treaty. To require
the other contracting state (USA) to submit the VFA to
the United States Senate for concurrence pursuant to
its Constitution is to accord strict meaning to the
phrase.
20. The words used in the Constitution are to be given
their ordinary meaning except where technical terms
are employed, in which case the significance thus
attached to them prevails
21. It is inconsequential whether the United States
treats the VFA only as an executive agreement
because, under international law, there is no
difference between treaties and executive agreements
in their binding effect upon states concerned, as long
as the negotiating functionaries have remained within
their powers. International law continues to
make no distinction between treaties and
executive agreements: they are equally binding
obligations upon nations. To be sure, as long as the
VFA possesses the elements of an agreement under
international law, the said agreement is to be taken
equally as a treaty.
22. For as long as the United States of America
accepts or acknowledges the VFA as a treaty, and
binds itself further to comply with its obligations under
the treaty, there is indeed marked compliance with
the mandate of the Constitution.
Treaty
23. A treaty, as defined by the Vienna Convention on
the Law of Treaties, is "an international instrument
concluded between States in written form and
governed by international law, whether embodied in a
single instrument or in two or more related
instruments, and whatever its particular designation.”
24. There are many other terms used for a treaty or
international agreement, some of which are: act,
protocol, agreement, compromis d' arbitrage,
concordat, convention, declaration, exchange of
99
notes, pact, statute, charter and modus vivendi. The
names or titles of international agreements included
under the general term treaty have little or no legal
significance and they furnish little more than mere
description
Ratification of Treaty
25. Ratification is generally held to be an
executive act, undertaken by the head of the state
or of the government, as the case may be, through
which the formal acceptance of the treaty is
proclaimed.
26. A State may provide in its domestic legislation the
process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by
ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the
negotiating States agreed that ratification should be
required, (c) the representative of the State has
signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to
ratification appears from the full powers of its
representative, or was expressed during the
negotiation
27. In the Philippine jurisdiction, the power to ratify
is vested in the President and not, as commonly
believed, in the legislature. The role of the Senate
is limited only to giving or withholding its
consent, or concurrence, to the ratification.
28. In the Philippine jurisdiction, we have recognized
the binding effect of executive agreements even
without the concurrence of the Senate or Congress.
Political Question (Concurrence of Senate)
29. The role of the Senate in relation to treaties is
essentially legislative in character. The Senate, as an
independent body possessed of its own erudite mind,
has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in
the exercise of its wide latitude of discretion, pertains
to the wisdom rather than the legality of the act.
Pacta sunt servanda
30. With the ratification of the VFA, which is
equivalent to final acceptance, and with the exchange
of notes between the Philippines and the United
States of America, it now becomes obligatory and
incumbent on our part, under the principles of
international law, to be bound by the terms of the
agreement.
31. Article 13 of the Declaration of Rights and
Duties of States adopted by the International Law
Commission in 1949 provides: "Every State has the
duty to carry out in good faith its obligations arising
from treaties and other sources of international law,
and it may not invoke provisions in its constitution or
its laws as an excuse for failure to perform this duty."
32. Article 26 of the convention which provides that
"Every treaty in force is binding upon the parties to it
and must be performed by them in good faith." This is
known as the principle of pacta sunt servanda.
29. Case Summary
Lacson vs. Perez (2001)
G.R. No. 147780 | 2001-05-10
Subject: Petitions have become moot; Petition for
prohibition and mandamus are not the proper
remedies against a warrantless arrest; (Lacson
group): Petitions for prohibition and habeas corpus
are premature since no criminal charges have been
filed and any fear of unlawful restraint is merely
speculative; (Santiago petition): Mandamus will not
issue unless the right to relief is clear at the time of
the award; (Lumbao petition): Declaration of a state
of rebellion is the domain of the President, in exercise
of Commander in Chief powers; (LDP Petition): LDP
not a real party in interest since, being a juridical
person, it is not subject to arrest
Facts:
On May 1, 2001, President Macapagal-Arroyo, faced
by an "angry and violent mob armed with explosives,
firearms, bladed weapons, clubs, stones and other
deadly weapons" assaulting and attempting to break
into Malacañang, issued Proclamation No. 38 declaring
that there was a state of rebellion in the National
Capital Region. She likewise issued General Order No.
1 directing the Armed Forces of the Philippines and
the Philippine National Police to suppress the rebellion
in the National Capital Region. Warrantless arrests of
several alleged leaders and promoters of the
"rebellion" were thereafter effected.
Thereafter, the four present petitions( for prohibition,
100
injunction, mandamus, and habeas corpus) were filed
before the Supreme Court. All the petitions assail the
declaration of a state of rebellion by President Arroyo
and the warrantless arrests allegedly effected by
virtue thereof, as having no basis both in fact an in
law.
As to petitioner's claim that the proclamation of a
"state of rebellion" is being used by the authorities to
justify warrantless arrests, the Secretary of Justice
Hernando Perez denies that it has issued a particular
order to arrest specific persons in connection with the
"rebellion. “He states that what is extant are general
instructions to law enforcement officers and military
agencies to implement Proclamation No. 38. Indeed
Held:
Petitions have become moot
1. Significantly, on May 6, 2001, President
Macapagal-Arroyo ordered the lifting of the
declaration of a "state of rebellion" in Metro Manila.
Accordingly, the instant petitions have been rendered
moot and academic.
Petition for prohibition and mandamus are not
the proper remedies against a warrantless
arrest
2. In quelling or suppressing the rebellion, the
authorities may only resort to warrantless arrests of
persons suspected of rebellion, as provided under
Section 5, Rule 113 of the Rules of Court, if the
circumstances so warrant. The warrantless arrest
feared by petitioners is not based on the declaration
of a "state of rebellion."
3. Moreover, petitioners' contention that they are
under imminent danger of being arrested without
warrant do not justify their resort to the extraordinary
remedies of mandamus and prohibition, since an
individual subjected to warrantless arrest is not
without adequate remedies in the ordinary course of
law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of court,
where he may adduce evidence in his defense, or he
may submit himself to inquest proceedings to
determine whether or not he should remain under
custody and correspondingly be charged in court.
Further, a person subject of a warrantless arrest must
be delivered to the proper judicial authorities within
the periods provided in Article 125 of the Revised
Penal Code, otherwise the arresting officer could be
held liable for delay in the delivery of detained
persons. Should the detention be without legal
ground, the person arrested can charge the arresting
officer with arbitrary detention. All this is without
prejudice to his filing an action for damages against
the arresting officer under Article 32 of the Civil Code.
Verily, petitioners have a surfeit of other remedies
which they can avail themselves of, thereby making
the prayer for prohibition and mandamus improper at
this time (Sections 2 and 3, Rule 65, Rules of Court).
(Lacson group): Petitions for prohibition and
habeas corpus are premature since no criminal
charges have been filed and any fear of
unlawful restraint is merely speculative
4. In connection with their alleged impending
warrantless arrest, petitioners Lacson, Aquino, and
Mancao pray that the "appropriate court before whom
the information’s against petitioners are filed be
directed to desist from arraigning and proceeding with
the trial of the case, until the instant petition is finally
resolved." This relief is clearly premature considering
that as of this date, no complaints or charges have
been filed against any of the petitioners for any crime.
And in the event that the same are later filed,
this court cannot enjoin criminal prosecution
conducted in accordance with the Rules of Court, for
by that time any arrest would have been in pursuance
of a duly issued warrant.
5. As regards petitioner's prayer that the hold
departure orders issued against them be declared null
and void ab initio, it is to be noted that petitioners are
not directly assailing the validity of the subject hold
departure orders in their petition. They are not even
expressing intention to leave the country in the near
future. The prayer to set aside the same must be
made in proper proceedings initiated for that purpose.
6. Anent petitioner's allegations ex abundante ad
cautelam in support of their application for the
issuance of a writ of habeas corpus, it is manifest that
the writ is not called for since its purpose is to relieve
petitioners from unlawful restraint , a matter
which remains speculative up to this very day.
(Santiago petition): Mandamus will not issue
unless the right to relief is clear at the time of
the award
101

7. The petition is denominated as one for mandamus.
It is basic in matters relating to petitions for
mandamus that the legal right of the petitioner to the
performance of a particular act which is sought to be
compelled must be clear and complete. Mandamus will
not issue unless the right to relief is clear at the time
of the award. Up to the present time, petitioner
Defensor-Santiago has not shown that she is in
imminent danger of being arrested without a
warrant. In point of fact, the authorities have
categorically stated that petitioner will not be arrested
without a warrant.
(Lumbao petition): Declaration of a state of
rebellion is the domain of the President, in
exercise of Commander in Chief powers
8. Petitioner Lumbao, leader of the People's
Movement against Poverty (PMAP) argues that the
declaration of a "state of rebellion" is violative of the
doctrine of separation of powers, being an
encroachment on the domain of the judiciary which
has the constitutional prerogative to "determine or
interpret" what took place on May 1, 2001, and that
the declaration of a state of rebellion cannot be an
exception to the general rule on the allocation of the
governmental powers.
9. Section 18, Article VII of the Constitution expressly
provides that "[t]he 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..."
10. 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 testual 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 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. (see IBP vs. Zamora)
11. The Court, in a proper case, may look into the
sufficiency of the factual basis of the exercise of this
power. However, this is no longer feasible at this time,
Proclamation No. 38 having been lifted.
(LDP Petition): LDP not a real party in interest
since, being a juridical person, it is not subject
to arrest
12. Petitioner Laban ng Demoktratikong Pilipino is not
a real party-in-interest. The rule requires that a party
must show a personal stake in the outcome of the
case or an injury to himself that can be redressed by a
favorable decision so as to warrant an invocation of
the court's jurisdiction and to justify the exercise of
the court's remedial powers in his behalf. Here,
petitioner has not demonstrated any injury to itself
which would justify resort to the Court. Petitioner is a
juridical person not subject to arrest. Thus, it cannot
claim to be threatened by a warrantless arrest. Nor is
it alleged that its leaders, members, and supporters
are being threatened with warrantless arrest and
detention for the crime of rebellion. Every action must
be brought in the name of the party whose legal right
has been invaded or infringed, or whose legal right is
under imminent threat of invasion or infringement.
13. At best, the instant petition may be considered
as an action for declaratory relief, petitioner claiming
that its right to freedom of expression and freedom of
assembly is affected by the declaration of a "state of
rebellion" and that said proclamation is invalid for
being contrary to the Constitution. However, to
consider the petition as one for declaratory relief
affords little comfort to petitioner, the Supreme Court
not having jurisdiction in the first instance over such a
petition.
30. Case Summary
Sanlakas vs Executive Secetary Reyes (2004)
G.R. No. 159085 | 2004-02-03
102
Subject:
Locus Standi, Calling out power, Declaration of “state
of rebellion”
Facts:
In the wee hours of July 27, 2003, some three
hundred junior officers and enlisted men of the Armed
Forces of the Philippines (AFP) stormed into the
Oakwood Premiere apartments in Makati City.
Bewailing the corruption in the AFP, the soldiers
demanded, among other things, the resignation of the
President (Arroyo), the Secretary of Defense and the
Chief of the Philippine National Police (PNP).
In the wake of the Oakwood occupation, the President
issued later in the day Proclamation No. 427 and
General Order No. 4, both declaring "a state of
rebellion" and calling out the Armed Forces to
suppress the rebellion.
By the evening of July 27, 2003, the Oakwood
occupation had ended. After hours-long negotiations,
the soldiers agreed to return to barracks. The
President, however, did not immediately lift the
declaration of a state of rebellion and did so only on
August 1, 2003, through Proclamation No. 435.
In the interim, several petitions were filed before this
Court challenging the validity of Proclamation No. 427
and General Order No. 4.
Petioners (including members of Congress and party-
list organizations like Sanlakas, Partido ng
Manggagawa , and SJS Society) pose similar
contentions questioning the authority of the President
to declare a state of rebellion in the exercise of the
“calling out power” granted under Section 18, Article
VII of the Constitution.
On the other hand, the Solicitor General argues that
the petitions have been rendered moot by the lifting
of the declaration. The Solicitor General likewise
questions the standing of the petitioners to bring suit.
Held:
Moot and Academic (Exceptions)
1. The issuance of Proclamation No. 435, declaring
that the state of rebellion has ceased to exist, has
rendered the case moot.
2. As a rule, courts do not adjudicate moot cases,
judicial power being limited to the determination of
"actual controversies.”
3. By way of exception, courts will decide a question,
otherwise moot, if it is "capable of repetition yet
evading review."
Case in point, in 2001, the President similarly
issued a declaration of state of rebellion only to
recall it five days later. The hasty recall
prevented the Court from acting on the
petitions filed in the meantime questioning the
validity of the declaration. (see Lacson vs Perez)
Locus Standi
4. "Legal standing" or locus standi has been defined
as a personal and substantial interest in the case such
that the party has sustained or will sustain direct
injury as a result of the governmental act that is being
challenged.
5. Only petitioners Representative Suplico et al. and
Senator Pimentel, as Members of Congress, have
standing to challenge the subject issuances.
To the extent the powers of Congress are impaired, so
is the power of each member thereof. An act of the
Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury,
which can be questioned by a member of Congress. In
such a case, any member of Congress can have a
resort to the courts. (citing Philconsa vs Enriquez)
6. Petitioners Sanlakas and PM, and SJS
Officers/Members, have no legal standing or locus
standi to bring suit.
As a party list organization, it has not demonstrated
any injury to itself which would justify the resort to
the Court. It is a juridical person not subject to arrest.
Thus, it cannot claim to be threatened by a
warrantless arrest. Nor is it alleged that its leaders,
members, and supporters are being threatened with
warrantless arrest and detention for the crime of
rebellion. Every action must be brought in the name of
the party whose legal rights has been invaded or
infringed, or whose legal right is under imminent
103
threat of invasion or infringement. (citing Lacson vs
Perez)
7. That petitioner SJS officers/members are taxpayers
and citizens does not necessarily endow them with
standing.
A taxpayer may bring suit where the act complained
of directly involves the illegal disbursement of public
funds derived from taxation. No such illegal
disbursement is alleged
A citizen will be allowed to raise a constitutional
question only when he can show that he has
personally suffered some actual or threatened injury
as a result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the
challenged action; and the injury is likely to be
redressed by a favorable action. Again, no such injury
is alleged in this case.
8. Even if the petition of the party list organizations is
treated as one for declaratory relief, the same will not
prosper since the Supreme Court is without
jurisdiction to entertain such suits at the first instance.
Calling Out Power
9. For the purpose of exercising the calling out power
the Constitution does not require the President to
make a declaration of a state of rebellion.
10. Section 18, Article VII grants the President, as
Commander-in-Chief, a "sequence" of "graduated
powers. From the most to the least benign, these
are: (a) the calling out power, (b) the power to
suspend the privilege of the writ of habeas
corpus, and (c) the power to declare martial law.
11. In the exercise of the latter two powers, the
Constitution requires the concurrence of two
conditions, namely, (1) an actual invasion or
rebellion, and (2) that public safety requires the
exercise of such power. However, these conditions are
not required in the exercise of the calling out power.
12. The only criterion for the exercise of the “calling
out power” is that 'whenever it becomes
necessary,' the President may call the armed forces
'to prevent or suppress lawless violence, invasion or
rebellion.'"
13. The President has full discretionary power to call
out the armed forces and to determine the necessity
for the exercise of such power. While the Court may
examine whether the power was exercised within
constitutional limits or in a manner constituting grave
abuse of discretion, none of the petitioners here have,
by way of proof, supported their assertion that the
President acted without factual basis.
Declaration of “state of rebellion”
14. The President has authority to declare a state of
rebellion, which authority springs in the main from
her powers as chief executive and, at the same time,
draws strength from her Commander-in-Chief Powers.
15. Statutory authority for such a declaration may be
found in the Revised Administrative Code of 1987
which authorizes the President to issue
“Proclamations” declaring “a status or condition of
public moment or interest, upon the existence of
which the operation of a specific law or regulation is
made to depend”
16. Nevertheless, in calling out the armed forces, a
declaration of “a state of rebellion” is an utter
superfluity. At most, it only gives notice to the nation
that such a state exists and that the armed forces may
be called to prevent or suppress it. Such a
declaration is devoid of any legal significance.
For all legal intents, the declaration is deemed not
written.
Warrantless arrest for rebellion
17. The mere declaration of a state of rebellion cannot
diminish or violate constitutionally protected rights.
Indeed, if a state of martial law does not suspend the
operation of the Constitution or automatically suspend
the privilege of the writ of habeas corpus, then it is
with more reason that a simple declaration of a state
of rebellion could not bring about these conditions.
18. The warrantless arrest feared by petitioners is not
based on the declaration of a 'state of rebellion.' In
other words, a person may be subjected to a
warrantless arrest for the crime of rebellion whether
or not the President has declared a state of rebellion,
so long as the requisites for a valid warrantless arrest
under Section 5, Rule 113 of the Rules of Court are
present.
104

Declaration of Martial Law
19. The argument that the declaration of a state of
rebellion amounts to a declaration of martial law and,
therefore, is a circumvention of the report
requirement, is a leap of logic. There is no indication
that military authorities have taken over the functions
of civil government. There is no indication that the
President has exercised judicial and legislative powers.
In short, there is no illustration that the President has
attempted to exercise or has exercised martial law
powers.
Emergency powers
20. Neither can the declaration constitute an indirect
exercise of emergency powers, which exercise
depends upon a grant of Congress pursuant to Section
23 (2), Article VI of the Constitution.
21. The President, in declaring a state of rebellion and
in calling out the armed forces, was merely exercising
a wedding of her Chief Executive and Commander-in-
Chief powers. These are purely executive powers,
vested on the President by Sections 1 and 18, Article
VII, as opposed to the delegated legislative powers
contemplated by Section 23 (2), Article VI.
31. Case Summary
Marcos vs Comelec (1995)
G.R. No. 119976 | 1995-09-18
Subject:
Election Law; Residency Qualification; Abandonment
and Transfer of Domicile; Statutory Construction,
Directory vs Mandatory provisions; Jurisdiction over
Disqualification Case (Comelec vs Electoral Tribunal)
Facts:
Imelda Romualdez-Marcos filed her Certificate of
Candidacy (COC) for the position of Representative of
the First District of Leyte indicating only a period of
seven months residency in the constituency where she
sought to be elected.
Cirilo Roy Montejo, the incumbent Representative and
a candidate for the same position, filed a petition for
disqualification with the Comelec alleging that Marcos
did not meet the one year residency requirement for
candidates for the House of Representatives.
Thereafter, Marcos filed an amended COC and
changed the residency portion from “seven months” to
“since childhood” and claimed that her earlier entry
was simply a result of an "honest misinterpretation or
honest mistake." Although she only became a resident
of the Municipality of Tolosa for seven months, she
has always been a resident of Tacloban City, a
component of the First District, before coming to
Tolosa, and has always maintained Tacloban City as
her domicile or residence.
However, the provincial election supervisor stated that
that the deadline for filing certificates of candidacy has
already lapsed.
The Comelec Division declared Marcos disqualified for
failing to meet and prove the one year residency
requirement. It did not give credence to her claim of
honest error. Moreover, the division found that,
except for the time that she studied and worked for
some years after graduation in Tacloban City, she
continuously lived in Manila. She even registered as a
voter in various places in Manila and served as
member of the Batasang Pambansa as the
representative of the City of Manila and later on
served as the Governor of Metro Manila. In effect,
Marcos was deemed to have abandoned her domicile
in Tacloban City in favor of Manila.
The Comelec En Banc upheld the division and declared
Marcos as disqualified from running for the First
District of Leyte for failing to meet the residency
requirement.
In the meantime, Marcos was the overwhelming
winner of the elections for the congressional seat in
the First District of Leyte in the May 8, 1995 elections.
In view of the Comelec Resolution suspending her
proclamation, Marcos filed a petition with the Supreme
Court to obtain relief.
Held:
Residency Qualification (Residence and
Domicile in Election Law)
1. In election cases, the term "residence" has
always been considered as synonymous with
"domicile" which imports not only the intention to
105
reside in a fixed place but also personal presence in-
that place, coupled with conduct indicative of such
intention. Domicile denotes a fixed permanent
residence to which when absent for business or
pleasure, or for like reasons, one intends to
return. (citing Perfecto Faypon vs. Eliseo Quirino)
2. Article 50 of the Civil Code decrees that "[f]or the
exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is
their place of habitual residence."
3. The essential distinction between residence and
domicile in law is that residence involves the intent to
leave when the purpose for which the resident has
taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a
person's intent be to remain, it becomes his domicile;
if his intent is to leave as soon as his purpose is
established it is residence. Thus, an individual may
have different residences in various places.
However, a person can only have a single
domicile, unless, for various reasons, he successfully
abandons his domicile in favor of another domicile of
choice.
4. "Residence" is used to indicate a place of abode,
whether permanent or temporary; "domicile" denotes
a fixed permanent residence to which, when absent,
one has the intention of returning. A man may have
a residence in one place and a domicile in
another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an
unlimited time. A man can have but one domicile for
the same purpose at any time, but he may have
numerous places of residence.
Determining Residency Qualification
5. It is the fact of residence, not a statement in a
certificate of candidacy which ought to be decisive in
determining whether or not and individual has
satisfied the constitution's residency qualification
requirement. The said statement becomes material
only when there is or appears to be a deliberate
attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible.
Domicile of Marcos
6. It appears that Marcos merely committed an honest
mistake in jotting the word "seven" in the space
provided for the residency qualification requirement. A
close look at said certificate would reveal the possible
source of the confusion: the entry for residence (Item
No. 7) is followed immediately by the entry for
residence in the constituency where a candidate seeks
election (Item No. 8). The juxtaposition of entries in
Item 7 and Item 8 - the first requiring actual residence
and the second requiring domicile - coupled with the
circumstances surrounding petitioner's registration as
a voter in Tolosa obviously led to her writing down an
unintended entry for which she could be disqualified.
7. An individual does not lose his domicile even if he
has lived and maintained residences in different
places. Residence implies a factual relationship to a
given place for various purposes. The absence from
legal residence or domicile to pursue a profession, to
study or to do other things of a temporary or semi-
permanent nature does not constitute loss of
residence. Hence, the registration of a voter in a
place other than his residence of origin has not
been deemed sufficient to constitute
abandonment or loss of such residence.
8. Marcos held various residences for different
purposes during the last four decades. None of these
purposes unequivocally point to an intention to
abandon her domicile of origin in Tacloban, Leyte.
9. As to the contention that Tacloban was not Marcos’
domicile of origin because she was born in Manila and
did not live in Tacloban until she was eight years old,
it is held that a minor follows the domicile of his
parents.In spite of the fact of her being born in
Manila, her domicile of origin by operation of law is
Tacloban, Leyte.
Meaning of Residence in Civil law vs Election
Law
10. The term residence may mean one thing in civil
law (or under the Civil Code) and quite another thing
in political law. Insofar as the Civil Code is concerned-
affecting the rights and obligations of husband and
wife - the term residence should only be interpreted to
mean "actual residence." (Note: as opposed to
election law where residence is synonymous with
domicile)
11. Imelda Marcos did not lose her domicile of origin
by operation of law as a result of her marriage to the
late President Ferdinand Marcos in 1952. The female
106
spouse does not automatically lose her domicile
of origin in favor of the husband's choice of
residence upon marriage.
12. When Imelda was married to then Congressman
Ferdinand Marcos, she was obliged - by virtue of
Article 110 of the Civil Code - to follow her husband's
actual place of residence fixed by him. What she
gained in that case was merely a new actual
residence. She did not lose her domicile of origin.
13. Even assuming that she lost her domicile upon
marriage to her husband, her actions after the death
of her husband and her return to the country indicate
her choice to make her domicile of origin (Tacloban)
as her new domicile, i.e., seeking the PCGG's
permission to rehabilitate the ancestral house in
Tacloban and obtaining her residence certificate in
1992 in Tacloban.
Abandonment of Domicile
14. A domicile of origin is not easily lost. To
successfully effect a change of domicile, one must
demonstrate:
(1) An actual removal or an actual change of domicile;
(2) A bona fide intention of abandoning the former
place of residence and establishing a new one; and
(3) Acts which correspond with the purpose.
15. To effect an abandonment requires the voluntary
act of relinquishing petitioner's former domicile with
an intent to supplant the former domicile with one of
her own choosing (domicilium voluntarium).
Transfer of Domicile
16. In Romualdez vs. RTC, the Court explained how
one acquires a new domicile by choice. There must
concur:
(1) residence or bodily presence in the new locality;
(2) intention to remain there (animus manendi) ;
and
(3) intention to abandon the old domicile (animus
non revertendi)
Statutory Construction, Directory vs Mandatory
provisions
17. Marcos contends that the jurisdiction of the
COMELEC had already lapsed considering that the
assailed resolutions were rendered on April 24, 1995,
fourteen days before the election in violation of
Section 78 of the Omnibus Election Code.
18. It is a settled doctrine that a statute requiring
rendition of judgment within a specified time is
generally construed to be merely directory, "so that
non-compliance with them does not invalidate the
judgment on the theory that if the statute had
intended such result it would have clearly indicated it."
19. The difference between a mandatory and directory
provision is often determined on grounds of
expediency, the reason being that less injury results to
the general public by disregarding than enforcing the
letter of the law.
Jurisdiction over Disqualification Case (Comelec
vs Electoral Tribunal)
20. The COMELEC does not lose jurisdiction to hear
and decide a pending disqualification case under
Section 78 of B.P. 881 even after the elections.
21. The jurisdiction of House of Representatives
Electoral Tribunal (HRET) as the sole judge of all
contests relating to the elections, returns and
qualifications of members of Congress
begins only after a candidate has become a member
of the House of Representatives. (Note: a winning
candidate to a Congressional seat only becomes a
member of the House after being proclaimed as the
winner and being duly sworn into office. Marcos, not
being proclaimed and sworn in yet, cannot invoke the
jurisdiction of the HRET)
32. Case Summary
Ang Bagong Bayani-OFW Labor Party vs.
COMELEC
G.R. No. 147589 | 2001-06-26
Subject:
Participation of Political Parties in the Party-List
System, Proportional Representation, Marginalized and
Underrepresented Sectors, Guidelines for Screening
Party-List Participants
Facts:
107

COMELEC issued Omnibus Resolution No. 3785 on
March 26, 2001, which approved the participation of
154 organizations and parties in the 2001 party-list
elections.
Petitioners assail Omnibus Resolution No. 3785 for
accepting organizations and parties contrary to the
purpose of the party-list system which is to benefit the
marginalized and underrepresented and not the
mainstream political parties.
Petitioners argue that the respondent parties do not
belong to the ‘marginalized and underrepresented
sector’, hence should be disqualified.
Held:
Recourse under Rule 65 of Rules of Court
1. Under both the Constitution and the Rules of Court,
a challenge on the validity of a Comelec Resolution for
having been issued with grave abuse of discretion
may be brought before the Supreme Court in a
verified petition for certiorari under Rule 65.
2. Omnibus Resolution No. 3785 was promulgated by
the Comelec en banc. As such, no motion for
reconsideration was possible, it being a prohibited
pleading under Section 1 (d), Rule 13 of the Comelec
Rules of Procedure. Hence, resort to Rule 65 is proper.
3. In any event, this case presents an exception to the
rule that certiorari shall lie only in the absence of any
other plain, speedy and adequate remedy. It has been
held that certiorari is available, notwithstanding the
presence of other remedies, “where the issue raised is
one purely of law, where public interest is involved,
and in case of urgency.”
4. Procedural requirements may be glossed over to
prevent a miscarriage of justice, when the issue
involves the principle of social justice, when the
decision sought to be set aside is a nullity, or when
the need for relief is extremely urgent and certiorari is
the only adequate and speedy remedy available.
Participation of Political Parties in the Party-
List System
cannot be disqualified from the party-list elections,
merely on the ground that they are political parties.
6. Section 5, Article VI of the Constitution provides
that members of the House of Representatives may
“be elected through a party-list system of registered
national, regional, and sectoral parties or
organizations.”
7. Furthermore, under Sections 7 and 8, Article IX (C)
of the Constitution, political parties may be registered
under the party-list system.
8. During the deliberations in the Constitutional
Commission, Commissioner Monsod stated that the
purpose of the party-list provision was to open up the
system, in order to give a chance to parties that
consistently place third or fourth in congressional
district elections to win a seat in Congress.
9. Section 3 of RA 7941 expressly states that a 'party'
is 'either a political party or a sectoral party or a
coalition of parties.'
10. RA 7941 defines 'political party' as 'an organized
group of citizens advocating an ideology or platform,
principles and policies for the general conduct of
government and which, as the most immediate means
of securing their adoption, regularly nominates and
supports certain of its leaders and members as
candidates for public office'
11. The fact that political parties may participate in
the party-list elections does not mean, however, that
any political party – or any organization or group for
that matter – may do so. The requisite character of
these parties or organizations must be consistent with
the purpose of the party-list system, as laid down in
the Constitution and RA 7491.
12. RA 7491 mandates a state policy of
promoting proportional representation by means
of a party-list system which will enable the election to
the House of Representatives of Filipino citizens, 1.
Who belong to marginalized and
underrepresented sectors, organizations and
parties; and 2. Who lack well-defined
constituencies; but 3. Who could contribute to the
formulation and enactment of appropriate legislation
that will benefit the nation as a whole.

5. Under the Constitution and RA 7941, respondents Proportional representation

108
13. Proportional representation does not refer to the
number of people in a particular district, because the
party-list election is national in scope. Neither does it
allude to numerical strength in a distressed or
oppressed group.
14. Proportional representation refers to the
representation of the “marginalized and
underrepresented”
Lack of well-defined constituency
15. ‘Lack of well-defined constituency’ refers to the
absence of a traditionally identifiable electoral group,
like voters of a congressional district or territorial unit
of government. It points again to those with disparate
interests identified with the ‘marginalized or
underrepresented.’
Marginalized and Underrepresented
16. The marginalized and underrepresented sectors
are enumerated in Section 5 of RA 7491: namely,
‘labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals.’
17. While the enumeration is not exclusive, it
demonstrates the clear intent of the law that not all
sectors can be represented under the party-list
system.
18. The OSG’s assertions that any party or group that
is not disqualified under Section 6 of RA 7491 may
participate, even the super-rich and overrepresented,
are contrary to RA 7491 and the Constitution. The
party-list system is a tool for the benefit of the
underprivileged; the law could not have given the
same tool to others, to the prejudice of the intended
beneficiaries.
19. The intent of the Constitution is to give genuine
power to the people by enabling them to become
veritable lawmakers themselves. Nevertheless, the
Comelec must ensure that only Filipinos who are
“marginalized and underrepresented” may become
members of Congress under the party-list system,
Filipino-style.
Requirement to Participate in the Philippine
Party-List System
20. Guidelines for Screening Party-List Participants:
First, the political party, sector, organization or
coalition must represent the marginalized and
underrepresented groups identified in Section 5
of RA 7941.
Second, while even major political parties are
expressly allowed by RA 7941 and the
Constitution to participate in the party-list
system, they must comply with the declared
statutory policy enabling Filipino citizens
belonging to marginalized and
underrepresented sectors to be elected to the
House of Representatives.
Third, the religious sector may not be
represented in the party-list system.
Fourth, a party or an organization must not be
disqualified under Section 6 of RA 7941.
Fifth, the party or organization must not be an
adjunct of, or a project organized or an entity
funded or assisted by, the government.
Sixth, the party must not only comply with the
requirements of the law. Its nominees must
likewise do so.
Seventh, not only the candidate party or
organization must represent marginalized and
underrepresented sectors. So also must its
nominees.
Eighth, while lacking a well-defined political
constituency, the nominee must likewise be
able to contribute to the formulation and
enactment of appropriate legislation that will
benefit the nation as a whole.
33. Case Summary
Atong Paglaum vs Comelec (2013)
G.R. No. 203766, G.R. Nos. 203818-19, G.R. No.
203922, G.R. No. 203936, G.R. No. 203958, G.R. No.
203960, G.R. No. 203976, G.R. No. 203981, G.R. No.
204002, G.R. No. 204094, G.R. No. 204100, G.R. No.
204122, G.R. No. 204125, G.R. No. 204126, G.R. No.
2041 | 2013-04-02
109
Subject: Party-List System under the 1987
Constitution; Party-List system was intended to
include even non-sectoral organizations; Political party
vs Sectoral party; National and Regional parties need
NOT represent the “marginalized and
underrepresented” sectors, may be simply organized
as political parties; Not all sectoral parties must
represent the “marginalized and underrepresented”
sectors; “Marginalized and Underrepresented”
requirement shall be limited to sectors that by their
nature are economically at the margins of society;
Major political parties could participate in party-list
elections only through their sectoral wings; Re-
examination of the ruling in Ang Bagong Bayani and
BANAT; New Parameters in determining who are
qualified to participate in the party-list elections
Facts:
These consolidated petitions were filed by 52 party-
lists groups assailing the resolution issued by the
COMELEC disqualifying them from participating in the
May 2013 party-list elections, either by denial of their
new petitions for registration under the party-list
system, or by cancellation of their existing registration
and accreditation as party-list organizations. The SC
issued Status Quo Ante Orders in all petitions.
The SC is called upon to determine whether the
criteria for participating in the party-list system laid
down in Ang Bagong Bayani vs. Comelec (BANAT
case) should be applied by the COMELEC in the
coming May 2013 party-list elections.
Held:
Party-List System under the 1987 Constitution
1. The 1987 Constitution provides the basis for the
party-list system of representation. Relevant
provisions are found in Section 5, Article VI and
Sections 7 and 8, Article IX-C of the 1987
Constitution.
2. The party-list system is intended to democratize
political power by giving political parties that cannot
win in legislative district elections a chance to win
seats in the House of Representatives. The voter
elects two representatives in the House of
Representatives: one for his or her legislative district,
and another for his or her party-list group or
organization of choice
Party-List system was intended to include even
non-sectoral organizations
3. Commissioner Christian S. Monsod, the main
sponsor of the party-list system, stressed that
“the party-list system is not synonymous with that of
the sectoral representation
4. The framers of the 1987 Constitution expressly
rejected the proposal to make the party-list system
exclusively for sectoral parties only, and they clearly
intended the party-list system to include both sectoral
and non-sectoral parties. The framers intended the
sectoral parties to constitute a part, but not the
entirety, of the party-list system. In fact, the proposal
to give permanent reserved seats to certain sectors
was outvoted. Instead, the reservation of seats to
sectoral representatives was only allowed for the first
three consecutive terms.
5. Section 5(1), Article VI of the Constitution provides
that there shall be “a party-list system of registered
national, regional, and sectoral parties or
organizations.” The commas separate national and
regional parties from sectoral parties. Had the framers
of the 1987 Constitution intended national and
regional parties to be at the same time sectoral, they
would have stated “national and regional sectoral
parties.” They did not, precisely because it was never
their intention to make the party-list system
exclusively sectoral.
6. Thus, the party-list system is composed of
three different groups: (1) national parties or
organizations; (2) regional parties or organizations;
and (3) sectoral parties or organizations. National
and regional parties or organizations are different
from sectoral parties or organizations. National and
regional parties or organizations need not be
organized along sectoral lines and need not represent
any particular sector.
Political party vs Sectoral party
7. Republic Act No. 7941 or the Party-List
System Act, which is the law that implements the
party-list system, defines a “party” as “either a
political party or a sectoral party or a coalition of
parties.” Clearly, a political party is different from a
sectoral party. Section 3(c) of R.A. No. 7941 further
provides that a “political party refers to an
110
organized group of citizens advocating an ideology or
platform, principles and policies for the general
conduct of government.” On the other hand, Section
3(d) of R.A. No. 7941 provides that a “sectoral
party refers to an organized group of citizens
belonging to any of the sectors enumerated in Section
5 hereof whose principal advocacy pertains to
the special interest and concerns of their sector.”
National and Regional parties need NOT
represent the “marginalized and
underrepresented” sectors, may be simply
organized as Political Parties
8. R.A. No. 7941 does not require national and
regional parties or organizations to represent the
“marginalized and underrepresented” sectors. To
require all national and regional parties under the
party-list system to represent the “marginalized and
underrepresented” is to deprive and exclude, by
judicial fiat, ideology-based and cause-oriented parties
from the party-list system. To exclude them from the
party list system is to prevent them from joining the
parliamentary struggle, leaving as their only option the
armed struggle. To exclude them from the party-list
system is patently contrary to the clear intent and
express wording of the 1987 Constitution and R.A. No.
7941.
9. Under the party-list system, an ideology-based or
cause-oriented political party is clearly different from a
sectoral party. A political party need not be organized
as a sectoral party and need not represent any
particular sector. There is no requirement in R.A. No.
7941 that a national or regional political party must
represent a “marginalized and underrepresented”
sector. It is sufficient that the political party consists
of citizens who advocate the same ideology or
platform, or the same governance principles and
policies, regardless of their economic status as
citizens.
Not all sectoral parties must represent the
“marginalized and underrepresented” sectors
10. Section 5 of R.A. No. 7941 states that “the sectors
shall include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas
workers, and professionals. “The sectors mentioned in
Section 5 are not all necessarily “marginalized and
underrepresented.” For sure, “professionals” are not
by definition “marginalized and underrepresented,”
not even the elderly, women, and the youth.
However, professionals, the elderly, women, and the
youth may “lack well-defined political constituencies,”
and can thus organize themselves into sectoral parties
in advocacy of the special interests and concerns of
their respective sectors.
11. The phrase “marginalized and underrepresented”
appears only once in R.A. No. 7941, in Section 2 on
Declaration of Policy. While the policy declaration in
Section 2 of R.A. No. 7941 broadly refers to
“marginalized and underrepresented sectors,
organizations and parties,” the specific implementing
provisions of R.A. No. 7941 do not define or require
that the sectors, organizations or parties must be
“marginalized and underrepresented.”
“Marginalized and Underrepresented”
requirement shall be limited to sectors that by
their nature are economically at the margins of
society
12. The phrase “marginalized and underrepresented”
should refer only to the sectors in Section 5 that
are, by their nature, economically “marginalized and
underrepresented.” These sectors are: labor, peasant,
fisherfolk, urban poor, indigenous cultural
communities, veterans, overseas workers, and other
similar sectors. For these sectors, a majority of the
members of the sectoral party must belong to the
“marginalized and underrepresented.” The nominees
of the sectoral party either must belong to the sector,
or must have a track record of advocacy for the sector
represented. Belonging to the “marginalized and
underrepresented” sector does not mean one must
“wallow in poverty, destitution or infirmity.” It is
sufficient that one, or his or her sector, is below the
middle class. More specifically, the economically
“marginalized and underrepresented” are those who
fall in the low income group as classified by the
National Statistical Coordination Board.
13. The recognition that national and regional parties,
as well as sectoral parties of professionals, the elderly,
women and the youth, need not be “marginalized and
underrepresented” will allow small ideology-based and
cause-oriented parties who lack “well-defined political
constituencies” a chance to win seats in the House of
Representatives. On the other hand, limiting to the
“marginalized and underrepresented” the sectoral
parties for labor, peasant, fisherfolk, urban poor,
111
indigenous cultural communities, handicapped,
veterans, overseas workers, and other sectors that by
their nature are economically at the margins of
society, will give the “marginalized and
underrepresented” an opportunity to likewise win
seats in the House of Representatives.
14. This interpretation will harmonize the 1987
Constitution and R.A. No. 7941 and will give rise to
a multi-party system where those “marginalized
and underrepresented,” both in economic and
ideological status, will have the opportunity to send
their own members to the House of Representatives.
Major political parties could participate in
party-list elections only through their sectoral
wings
15. The major political parties are those that field
candidates in the legislative district elections. Major
political parties cannot participate in the party-
list elections since they neither lack “well-
defined political constituencies” nor represent
“marginalized and underrepresented” sectors.
16. Thus, the national or regional parties under the
party-list system are necessarily those that do not
belong to major political parties. This automatically
reserves the national and regional parties under the
party-list system tothose who “lack well-defined
political constituencies,” giving them the opportunity
to have members in the House of Representatives.
17. However, major political parties could
participate in party-list elections only through
their sectoral wings. The participation of major
political parties through their sectoral wings, a
majority of whose members are “marginalized and
underrepresented” or lacking in “well-defined political
constituencies,” will facilitate the entry of the
“marginalized and underrepresented” and those who
“lack well-defined political constituencies” as members
of the House of Representatives.
18. Thus, to participate in party-list elections, a major
political party that fields candidates in the legislative
district elections must organize a sectoral wing, like a
labor, peasant, fisherfolk, urban poor, professional,
women or youth wing, that can register under the
party-list system.
19. Such sectoral wing of a major political party must
have its own constitution, by-laws, platform or
program of government, officers and members, a
majority of whom must belong to the sector
represented. The sectoral wing is in itself an
independent sectoral party, and is linked to a major
political party through a coalition. This linkage is
allowed by Section 3 of R.A. No. 7941, which provides
that “component parties or organizations of a coalition
may participate independently (in party-list elections)
provided the coalition of which they form part does
not participate in the party-list system.”
20. A party-list nominee must be a bona fide member
of the party or organization which he or she seeks to
represent. In the case of sectoral parties, to be a bona
fide party-list nominee one must either belong to the
sector represented, or have a track record of advocacy
for such sector.
Re-examination of the ruling in Ang Bagong
Bayani and BANAT
21. In disqualifying petitioners, the COMELEC used the
criteria prescribed in Ang Bagong Bayani and
BANAT. Ang Bagong Bayani laid down the guidelines
qualifying those who desire to participate in the party-
list system. Notably, major political parties were
allowed to participate in party-list elections. In 2009,
by a vote of 8-7 in BANAT, the majority officially
excluded major political parties from participating in
party-list elections. The minority in BANAT, however,
believed that major political parties can participate in
the party-list system through their sectoral wings.
22. We cannot, however, fault the COMELEC for
following prevailing jurisprudence in disqualifying
petitioners. In following prevailing jurisprudence, the
COMELEC could not have committed grave abuse of
discretion. However, for the coming 13 May 2013
party-list elections, we must now impose and mandate
the party-list system actually envisioned and
authorized under the 1987 Constitution and R.A. No.
7941. We declare that it would not be in accord with
the 1987 Constitution and R.A. No. 7941 to apply the
criteria in Ang Bagong Bayani and BANAT in
determining who are qualified to participate in the
coming 13 May 2013 party-list elections.
23. The COMELEC excluded from participating in the
13 May 2013 partylist elections those that did not
satisfy these two criteria: (1) all national, regional,
and sectoral groups or organizations must represent
112
the “marginalized and underrepresented” sectors, and
(2) all nominees must belong to the “marginalized and
underrepresented” sector they represent. Petitioners
may have been disqualified by the COMELEC because
as political or regional parties they are not organized
along sectoral lines and do not represent the
“marginalized and underrepresented.” Also,
petitioners' nominees who do not belong to the
sectors they represent may have been disqualified,
although they may have a track record of advocacy for
their sectors. Likewise, nominees of non-sectoral
parties may have been disqualified because they do
not belong to any sector. Moreover, a party may have
been disqualified because one or more of its nominees
failed to qualify, even if the party has at least one
remaining qualified nominee. As discussed above, the
disqualification of petitioners, and their nominees,
under such circumstances is contrary to the 1987
Constitution and R.A. No. 7941.
New Parameters in determining who are
qualified to participate in the party-list
elections
24. Thus, we remand all the present petitions to the
COMELEC. In determining who may participate in the
coming 13 May 2013 and subsequent party-list
elections, the COMELEC shall adhere to the following
parameters:
1. Three different groups may participate in the party-
list system: (1) national parties or organizations, (2)
regional parties or organizations, and (3) sectoral
parties or organizations.
2. National parties or organizations and regional
parties or organizations do not need to organize along
sectoral lines and do not need to represent any
“marginalized and underrepresented” sector.
3. Political parties can participate in party-list elections
provided they register under the party-list system and
do not field candidates in legislative district elections.
A political party, whether major or not, that fields
candidates in legislative district elections can
participate in party list elections only through its
sectoral wing that can separately register under the
party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political
party through a coalition.
4. Sectoral parties or organizations may either be
“marginalized and underrepresented” or lacking in
“well-defined political constituencies.” It is enough
that their principal advocacy pertains to the special
interest and concerns of their sector. The sectors that
are “marginalized and underrepresented” include
labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and
overseas workers. The sectors that lack “well-defined
political constituencies” include professionals, the
elderly, women, and the youth. 5. A majority of the
members of sectoral parties or organizations that
represent the “marginalized and underrepresented”
must belong to the “marginalized and
underrepresented” sector they represent. Similarly, a
majority of the members of sectoral parties or
organizations that lack “well-defined political
constituencies” must belong to the sector they
represent. The nominees of sectoral parties or
organizations that represent the “marginalized and
underrepresented,” or that represent those who lack
“well-defined political constituencies,” either must
belong to their respective sectors, or must have a
track record of advocacy for their respective sectors.
The nominees of national and regional parties or
organizations must be bona-fide members of such
parties or organizations.
6. National, regional, and sectoral parties or
organizations shall not be disqualified if some of their
nominees are disqualified, provided that they have at
least one nominee who remains qualified.
34. Case Summary
Veterans Foundation Party vs. COMELEC (2000)
G.R. No. 136781 | 2000-10-06
Subject: Party list system - four inviolable
parameters; Twenty (20%) percent allocation,
computation; Twenty (20%) percent allocation, a
ceiling only; Two (2%) percent threshold, valid
statutory requirement; Three (3) seat allocation, valid
statutory requirement; Method of Allocating Additional
Seats; Method of Allocating Additional Seats -
Philippine formula; Comelec resolutions void for being
violative of RA 7941
Facts:
Pursuant to Section 18 of Republic Act (RA) No. 7941
or the Party List System Act, the Comelec en banc
promulgated Resolution No. 2847, prescribing the
rules and regulations governing the election of party-
list representatives through the party-list system.
113

On May 11, 1998, the first election for party-list
representation was held simultaneously with the
national elections. A total of 123 parties, organizations
and coalitions participated. On June 26, 1998, the
Comelec en banc proclaimed thirteen party-list
representatives from twelve parties and organizations,
which had obtained at least 2% of the total number of
votes cast for the party-list system. Two of the
proclaimed representatives belonged to Petitioner
APEC, which obtained 5.5 percent of the votes.
After a special elections, the Comelec en banc further
determined that COCOFED (Philippine Coconut
Planters' Federation, Inc.) was entitled to one party-
list seat for having garnered 186,388 votes, which
were equivalent to 2.04 percent of the total votes cast
for the party-list system. Thus, its first nominee,
Emerito S. Calderon, was proclaimed as the 14th
party-list representative.
PAG-ASA (People's Progressive Alliance for Peace and
Good Government Towards Alleviation of Poverty and
Social Advancement) filed a petition with the Comelec
alleging that the filling up of the twenty percent
membership of party-list representatives in the House
of Representatives, as provided under the
Constitution, equivalent to 52 party-list
representatives, was mandatory. It claimed that the
literal application of the two percent vote requirement
and the three-seat limit under RA 7941 would defeat
this constitutional provision, for only 25 nominees
would be declared winners. Thereafter, other party-list
organizations filed their respective Motions for
Intervention, seeking the same relief.
The Comelec Second Division promulgated its
Resolution granting PAG-ASA's Petition. It ordered the
proclamation of herein 38 respondents who, in
addition to the 14 already sitting, would thus total 52
party-list representatives. It held that "at all times, the
total number of congressional seats must be filled up
by 80% percent district representatives and 20%
party-list representatives." In allocating the 52 seats,
it disregarded the two percent-vote requirement
prescribed under Section 11 (b) of RA 7941 and thus
concluded that "the party-list groups ranked Nos. 1 to
51 x x x should have at least one representative."
The Comelec en banc affirmed the Resolution of its
Second Division. The Comelec en banc accepted that
the 20% party list membership, comprising 52 seats,
must be filled up. It resolved that the 38 remaining
seats (52 less 14 who qualified under the 2% vote
threshold) should be distributed, not among those
same 14 qualifying party list organizations, but among
the remaining party lists even if they had not passed
the two percent threshold.
Several petitions for certiorari, prohibition and
mandamus were filed before the Supreme Court by
the parties and organizations that had obtained at
least two per cent of the total votes cast for the party-
list system.
The court narrowed the issues for resolution to the
following:
(1) Is the 20% allocation for party-list representatives
mandatory or is it merely a ceiling? In other words,
should the twenty percent allocation for party-list
solons be filled up completely and all the time?
(2) Are the 2% threshold requirement and the three-
seat limit provided in Section 11 (b) of RA 7941
constitutional?
(3) If the answer to Issue 2 is in the affirmative, how
should the additional seats of a qualified party be
determined?
Held:
Party list system - four inviolable parameters
1. Our 1987 Constitution introduced a novel feature
into our presidential system of government -- the
party-list method of representation. Under this
system, any national, regional or sectoral party or
organization registered with the Commission on
Elections may participate in the election of party-list
representatives who, upon their election and
proclamation, shall sit in the House of Representatives
as regular members. In effect, a voter is given two (2)
votes for the House -- one for a district congressman
and another for a party-list representative.
2. The party list system of representation is
mandated by Section 5, Article VI of the Constitution.
Pursuant thereto, Congress enacted Republic Act (RA)
No. 7941 or the Party List System Act on March 3,
1995. Under the Constitution and RA No. 7941, the
four inviolable parameters under a Philippine-style
party-list election are:
114

(a) the twenty (20%) percent allocation - the
combined number of all party-list congressmen
shall not exceed twenty percent of the total
membership of the House of Representatives,
including those elected under the party list.
(b) the two (2%) percent threshold - only those
parties garnering a minimum of two percent of the
total valid votes cast for the party-list system are
"qualified" to have a seat in the House of
Representatives;
(c) the three-seat limit - each qualified party,
regardless of the number of votes it actually obtained,
is entitled to a maximum of three seats; that is, one
"qualifying" and two additional seats.
(d) proportional representation - the additional
seats which a qualified party is entitled to shall be
computed "in proportion to their total number of
votes."
Twenty (20%) percent allocation, computation
3. The Constitution makes the number of district
representatives the determinant in arriving at the
number of seats allocated for party-list lawmakers,
who shall comprise "twenty per centum of the total
number of representatives including those under the
party-list." We thus translate this legal provision into a
mathematical formula, as follows:
No. of district representatives
---------------------------------- x .20 = No. of party-list
.80 representatives
To illustrate, considering that there were 208 district
representatives to be elected during the 1998 national
elections, the number of party-list seats would be 52,
computed as follows:
208
-------- x .20 = 52 .80
4. This formulation means that any increase in the
number of district representatives, as may be provided
by law, will necessarily result in a corresponding
increase in the number of party-list seats.
Twenty (20%) percent allocation, a ceiling only
5. A simple reading of Section 5, Article VI of the
Constitution conveys that Congress was vested with
the broad power to define and prescribe the
mechanics of the party-list system of representation.
The Constitution explicitly sets down only the
percentage of the total membership in the House of
Representatives reserved for party-list representatives.
6. In the exercise of its constitutional prerogative,
Congress enacted RA 7941. Congress declared therein
a policy to promote "proportional representation" in
the election of party-list representatives in order to
enable Filipinos belonging to the marginalized and
underrepresented sectors to contribute legislation that
would benefit them. It however deemed it necessary
to require parties, organizations and coalitions
participating in the system to obtain at least two
percent of the total votes cast for the party-list system
in order to be entitled to a party-list seat. Those
garnering more than this percentage could have
additional seats in proportion to their total number of
votes. Furthermore, no winning party, organization or
coalition can have more than three seats in the House
of Representatives.
7. Considering the foregoing statutory requirements,
the 20% allocation under Section 5 (2), Article VI of
the Constitution is not mandatory. It merely provides
a ceiling for party-list seats in Congress.
8. On the contention that a strict application of the
two percent threshold may result in a "mathematical
impossibility," suffice it to say that the prerogative to
determine whether to adjust or change this
percentage requirement rests in Congress. Indeed,
the function of the Supreme Court, as well as of all
judicial and quasi-judicial agencies, is to apply the law
as we find it, not to reinvent or second-guess it.
Unless declared unconstitutional, ineffective,
insufficient or otherwise void by the proper tribunal, a
statute remains a valid command of sovereignty that
must be respected and obeyed at all times. This is the
essence of the rule of law.
Two (2%) percent threshold, valid statutory
requirement
9. In imposing a two percent threshold, Congress
wanted to ensure that only those parties,
organizations and coalitions having a sufficient
number of constituents deserving of
representation are actually represented in Congress.
115

10. The two percent threshold is consistent not only
with the intent of the framers of the Constitution and
the law, but with the very essence of "representation."
Under a republican or representative state, all
government authority emanates from the people, but
is exercised by representatives chosen by them. But to
have meaningful representation, the elected persons
must have the mandate of a sufficient number of
people. Otherwise, in a legislature that features the
party-list system, the result might be the proliferation
of small groups which are incapable of contributing
significant legislation, and which might even pose a
threat to the stability of Congress. Thus, even
legislative districts are apportioned according to "the
number of their respective inhabitants, and on the
basis of a uniform and progressive ratio" to ensure
meaningful local representation.
Three (3) seat allocation, valid statutory
requirement
11. An important consideration in adopting the party-
list system is to promote and encourage a multiparty
system of representation. Consistent with the
Constitutional Commission's pronouncements,
Congress set theseat-limit to three (3) for
each qualified party, organization or
coalition. "Qualified" means having hurdled the two
percent vote threshold. Such three-seat limit ensures
the entry of various interest-representations into the
legislature; thus, no single group, no matter how large
its membership, would dominate the party-list seats, if
not the entire House.
Method of Allocating Additional Seats
12. Several methods were considered in determining
how to allocate additional seats:
(a) One Additional Seat Per Two Percent Increment—
a party that wins at least six percent of the total votes
cast will be entitled to three seats; another party that
gets four percent will be entitled to two seats; and
one that gets two percent will be entitled to one seat
only. However, the court considered a scenario
wherein Party A receives 20% of votes cast; Party B,
10%; and Party C, 6%. Applying this method, Party
A=10 seats; Party B=5 seats and Party C=3 seats.
Considering the three-seat limit imposed by law, all
the parties will each uniformly have three seats only.
This results in a party garnering two or more times
the number of votes obtained by another, yet getting
the same number of seats as the other one with the
much lesser votes. In effect, proportional
representation will be contravened and the law
rendered nugatory. Hence, the Court discarded it.
(b) Niemeyer Formula - this was developed by a
German mathematician and adopted by Germany as
its method of distributing party-list seats in the
Bundestag. Under this formula, the number of
additional seats to which a qualified party would be
entitled is determined by multiplying the remaining
number of seats to be allocated by the total number
of votes obtained by that party and dividing the
product by the total number of votes garnered by all
the qualified parties. The integer portion of the
resulting product will be the number of additional
seats that the party concerned is entitled to. Next is to
distribute the extra seats left among the qualified
parties in the descending order of the decimal portions
of the resulting products.
No. of remaining seats
to be
allocated No. of
additional
-------------------------- x No. of votes
of = seats of party
Total no. of votes of party
concerned concerned
qualified
parties Integer.decim
al)
The Niemeyer formula, while no doubt suitable for
Germany, finds no application in the Philippine setting,
because of our three-seat limit and the non-
mandatory character of the twenty percent allocation.
In Germany, there are no seat limitations, because
German law discourages the proliferation of small
parties. In contrast, RA 7941 imposes a three-seat
limit to encourage the promotion of the multiparty
system.
Applying the Niemeyer formula under our present set
of facts, the thirteen qualified parties will each be
entitled to three seats, resulting in an overall total of
39. Like the previous proposal, the Niemeyer formula
would violate the principle of "proportional
representation," a basic tenet of our party-list system.
116
Method of Allocating Additional Seats -
Philippine formula
13. The Philippine style party-list system is a unique
paradigm which demands an equally unique formula:
Step 1: Rank all the participating parties, highest to
lowest, according to the votes they each obtained.
Then the ratio for each party is computed by dividing
its votes by the total votes cast for all the parties
participating in the system. All parties with at least
two percent of the total votes are guaranteed one
seat each. Only these parties shall be considered in
the computation of additional seats. The party
receiving the highest number of votes shall
thenceforth be referred to as the "first" party.
Step 2: Determine the number of seats the first
party is entitled to, in order to be able to compute
that for the other parties. The other qualified parties
will always be allotted less additional seats than the
first party for two reasons: (1) the ratio between said
parties and the first party will always be less than 1:1,
and (2) the formula does not admit of mathematical
rounding off, because there is no such thing as a
fraction of a seat. A fractional membership cannot be
converted into a whole membership of one when it
would, in effect, deprive another party's fractional
membership. It would be a violation of the
constitutional mandate of proportional
representation. (see Guingona Jr. v. Gonzales)
Number of votes
of first party Proportion of votes of
-------------------- = first party relative to
Total votes for total votes for party-list
system
party-list system
If the proportion of votes received by the first party
without rounding it off is :
(a) equal to at least 6% of the total valid votes cast
for all the party list groups - then the first party shall
be entitled to two additional seats or a total of three
seats overall.
(b) equal to or greater than 4% but less than 6% -
then the first party shall have one additional or a total
oftwo seats.
(c) less than 4% - then the first party shall not be
entitled to any additional seat. In short, it shall
have one seat.
Note that the above formula will be applicable only in
determining the number of additional seats the first
party is entitled to. It cannot be used to determine the
number of additional seats of the other qualified
parties. The use of the same formula for all would
contravene the proportional representation parameter.
Step 3: Solve for the number of additional seats that
the other qualified parties are entitled to, based
onproportional representation. In simplified form, the
formula is written as follows:
No. of votes of
Additional seats concerned
party No. of additional
for concerned = ------------------
x seats allocated to
party No. of votes
of the first party
first party
Comelec resolutions void for being violative of
RA 7941
14. The Comelec gravely abused its discretion in
ruling that the 38 respondent parties, organizations
and coalitions are each entitled to a party-list seat,
because it glaringly violated two requirements of RA
7941: the two percent threshold and proportional
representation.
15. In disregarding, rejecting and circumventing
these statutory provisions, the Comelec effectively
arrogated unto itself what the Constitution expressly
and wholly vested in the legislature: the power and
the discretion to define the mechanics for the
enforcement of the system. The wisdom and the
propriety of these impositions, absent any clear
transgression of the Constitution or grave abuse of
discretion amounting to lack or excess of jurisdiction,
are beyond judicial review.
35. Case Summary
Banat v. Comelec
G.R. No. 179271 and G.R. No. 179295 | 2009-04-21
Subject:
117

Party List System, Application of Two Percent
Threshold and Three Seat Cap on Allocation of
Additional Seats, Major Political Parties in the Party
List System
Facts:
COMELEC applied the Veterans Federation Party v.
COMELEC formula (aka Panganiban formula or First
Party Rule) upon the completion of the canvass and
party-list results, thereby proclaiming 15 party-lists to
have obtained 21 seats in Congress.
In this case, BUHAY has the most number of votes
(1,178,747, which is 7.2% of the total votes for the
party-list system). Therefore, BUHAY is the “first
party” according to Veterans and CIBAC. With 7.2%
votes, it is entitled to 2 additional seats according to
Veterans formula for allocating additional seats for the
first party. Other parties entitled to additional seats
follow a different formula, based on number of
additional seats allocated to first party
Barangay Association for National Advancement and
Transparency (BANAT) filed a petition to proclaim the
full number of party-list representatives (all 55 seats
have to be proclaimed) provided by the Constitution
before the COMELEC en banc. The COMELEC denied
the said petition, stating that it had already become
moot and academic.
Held:
Party List System- Four Inviolable Parameters
1. A Philippine-style party-list election has at least four
inviolable parameters as clearly stated in Veterans:
Twenty percent allocation - the combined
number of all party-list congressmen shall not
exceed twenty percent of the total membership
of the House of Representatives, including
those elected under the party list;
Two percent threshold - only those parties
garnering a minimum of two percent of the
total valid votes cast for the party-list system
are ‘qualified’ to have a seat in the House of
Representatives;
Three-seat limit - each qualified party,
regardless of the number of votes it actually
obtained, is entitled to a maximum of three
seats; that is, one ‘qualifying’ and two
additional seats;
Proportional representation- the additional seats
which a qualified party is entitled to shall be
computed "in proportion to their total number
of votes.
2. However, because the formula in Veterans has
flaws in its mathematical interpretation of the term
"proportional representation," the Court is compelled
to revisit the formula for the allocation
of additional seats to party-list organizations
Application of Two Percent Threshold and Three
Seat Cap on Allocation of Additional seats
Two percent threshold
3. The first clause of Section 11(b) of R.A. No. 7941
states that "parties, organizations, and coalitions
receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one
seat each." This clause guarantees a seat to the two-
percenters.
4. The second clause of Section 11(b) of R.A. No.
7941 provides that "those garnering more than two
percent (2%) of the votes shall be entitled
to additional seats in proportion to their total number
of votes." This is where petitioners' and intervenors'
problem with the formula in Veterans lies. Veterans
interprets the clause "in proportion to their total
number of votes" to be in proportion to the votes of
the first party. This interpretation is contrary to the
express language of R.A. No. 7941.
5. In computing the allocation of additional seats, the
continued operation of the two percent threshold for
the distribution of the additional seats as found in the
second clause of Section 11 (b) of R.A. No. 7941 is
unconstitutional. (Note: The court strikes down the
two percent threshold only in relation to the
distribution of the additional seats.)
6. The two percent threshold makes it mathematically
impossible to achieve the maximum number of
available party list seats when the number of available
party list seats exceeds 50. The continued operation
of the two percent threshold in the distribution of the
118
additional seats frustrates the attainment of the
permissive ceiling that 20% of the members of the
House of Representatives shall consist of party-list
representatives.
Three-seat cap
7. The three-seat cap, as a limitation to the number of
seats that a qualified party-list organization may
occupy, remains a valid statutory device that prevents
any party from dominating the party-list elections.
Twenty Percent Allocation is a Ceiling
8. Neither the Constitution nor R.A. No. 7941
mandates the filling-up of the entire twenty percent
allocation of party-list representatives found in the
Constitution. The twenty percent allocation of party-
list representatives is merely a ceiling; party-list
representatives cannot be more than 20% of the
members of the House of Representatives.
Allocation of Party List Seats
9. Allocation of Qualified seats (First Round):
(a) The parties shall be ranked from the highest
to the lowest based on the number of votes
they garnered during the elections.
(b) The parties receiving at least two percent of
the total votes cast for the party-list system
shall be entitled to one guaranteed seat each.
(c) Fractional seats are disregarded in the
absence of a provision in RA 7941 allowing for a
rounding off of fractional seats.
10. Allocation of Additional seats (Second Round)
(d) The remaining available seats for allocation
as ‘additional seats’ are the maximum seats
reserved under the Party List System (20
percent ceiling) less the guaranteed or qualified
seats.
(e) First, The percentage of votes garnered by
each party-list candidate is multiplied by the
remaining available seats. The resulting number
(integer only, no rounding up) corresponds to a
party's share in the remaining available seats.
(f) Second, one party-list seat is assigned to
each of the parties next in rank until all
available seats are completely distributed.
(g) Finally, apply the three-seat cap to
determine the number of seats each qualified
party-list candidate is entitled.
Major Political Parties
11. Neither the Constitution nor R.A. No. 7941
prohibits major political parties from participating in
the party-list system. Major political parties are
allowed to participate in party-list elections through
their sectoral wings.
12. However, by a vote of 8-7, the Court decided to
continue the ruling in Veterans disallowing major
political parties from participating in the party-list
elections, directly or indirectly.
36. Case Summary
ARARO Party List vs. Comelec (2013)
G.R. No. 192803 | 2013-12-10
Subject: Courts will decide a case, even if rendered
moot and academic, under exceptional circumstances;
Petitioner is not the real party in interest; Four
inviolable parameters in the Philippine party list
system; Proper DIVISOR to achieve proportional
representation; BANAT Formula (Old vs New)
Facts:
Petitioner, Alliance for Rural and Agrarian
Reconstruction, Inc., (ARARO) was a duly accredited
party-list under Republic Act No. 7941. It garnered a
total of 147,204 votes in the May 10, 2010 elections
and ranked fiftieth (50th).
The Comelec En Banc sitting as the National Board of
Canvassers initially proclaimed 28 party-list
organizations as winners involving a total of 35 seats
guaranteed and additional seats. The result was based
on the Comelec’s count of one 121 Certificates of
Canvass or a total of 29,750,041 votes for the Party-
List System.
Petitioner filed an election protest before the House of
119
Representatives Electoral Tribunal (HRET) questioning
the Resolution of the Comelec that proclaimed the 28
winning party-list groups. Without waiting for the
resolution of the HRET, the petitioner filed the present
Petition for Review on Certiorari with Prayer for
Preliminary Injunction and Temporary Restraining
Order (TRO).
The petition mainly asks the Supreme Court to modify
the interpretation of the formula stated in BANAT v.
COMELEC by making the divisor for the computation
of the percentage votes, from total number of votes
castminus the votes for the disqualified party-list
candidates, to the total number of votes
cast regardless whether party-list groups are
disqualified.
The petitioner puts in issue the interpretation of
Sections 11 and 12 of Republic Act No. 7941, which
states:
Section 11. Number of Party-List
Representatives. The party-list representatives shall
constitute twenty per centum (20%) of the total
number of the members of the House of
Representatives including those under the party-
list.For purposes of the May 1998 elections, the first
five (5) major political parties on the basis of party
representation in the House of Representatives at the
start of the Tenth Congress of the Philippines shall not
be entitled to participate in the party-list system.
In determining the allocation of seats for the second
vote, the following procedure shall be observed:
(a) The parties, organizations, and coalitions shall be
ranked from the highest to the lowest based on the
number of votes they garnered during the elections.
(b) The parties, organizations, and coalitions receiving
at least two percent (2%) of the total votes cast for
the party-list system shall be entitled to one seat
each: Provided, That those garnering more than two
percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of
votes: Provided, finally, That each party, organization,
or coalition shall be entitled to not more than three (3)
seats.
Section 12. Procedure in Allocating Seats for
Party-List Representatives. The COMELEC shall
tally all the votes for the parties, organizations, or
coalitions on a nationwide basis, rank them according
to the number of votes received and allocate partylist
representatives proportionately according to the
percentage of votes obtained by each party,
organization, or coalition as against the total
nationwide votes cast for the party-list system.
The petitioner argues that the correct interpretation of
the above provisions does not distinguish between
valid and invalid votes. Hence, people whose votes
were spoiled (like checking or failure to properly shade
the ovals in the ballots, or voted for two party lists
when the requirement is only one, or had erasures on
their ballots for instance), or did not vote for any
party-list at all are still voters for the party-list system.
The votes for the party-list system include all those
people who voted whether their votes were counted
or not as long as the mechanism for the selection of
party-list is in place.
The COMELEC, on the other hand, took the position
that invalid or stray votes should not be counted in
determining the divisor. The COMELEC applied the
formula in BANAT v. COMELEC.
In determining the computation of the correct divisor
to be used. The options are:
A. All votes cast for the party-list system less the
votes cast for subsequently disqualified party-list
groups and votes declared spoiled
B. The total votes cast
C. The total number of valid votes cast for the party-
list system including votes cast for party-list groups
listed in the ballot even if subsequently
declared disqualified. The divisor should not
include votes that are declared spoiled or invalid.
Held:
I. Procedural Issues
Courts will decide a case, even if rendered moot
and academic, under exceptional circumstances
1. A moot and academic case is one that ceases to
present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical value. As a rule, courts
decline jurisdiction over such case, or dismiss it on
ground of mootness.
120

2. Several supervening events have already rendered
this case moot and academic. First, the Comelec En
Banc already proclaimed other winning party-list
groups. Second, the term of office of the winning
party-list groups in the May 2010 national elections
ended on June 30, 2013. Finally, the conduct of the
May 13, 2013 elections resulted in a new set of party-
list groups.
3. The expiration of the challenged term of office
renders the corresponding Petition moot and
academic. This leaves any ruling on the issues raised
by the petitioner with no practical or useful value.
4. However, the following exceptions to the rule of
declining jurisdiction over moot and academic cases
are allowed: (1) there was a grave violation of the
Constitution; (2) the case involved a situation of
exceptional character and was of paramount public
interest; (3) the issues raised required the formulation
of controlling principles to guide the Bench, the Bar
and the public; and (4) the case was capable of
repetition yet evading review.
5. On the importance of the assailed formula, this
Court will discuss the issues raised by the petitioner as
these are capable of repetition yet evading review and
for the guidance of the bench, bar, and public.
Petitioner is not the real party in interest
6. A real party in interest is the party who stands to
be benefited or injured by the judgement in the suit,
or the party entitled to the avails of the suit. The
party’s interest must be direct, substantial, and
material.
7. In this case, the petitioner attacks the validity of
the formula used and upheld in BANAT. It also
proposes its own interpretation of the formula to
determine the proportional representation of party-list
candidates in the House of Representatives.
However despite any new computation, ARARO’s
proposed divisor of total votes cast for the party-list
system, whether valid or invalid, still fails to secure
one seat for ARARO. Thus, petitioner does not suffer a
direct, substantial or material injury from the
application of the formula interpreted and used in
BANAT in proclaiming the winning party-lists. The
computation proposed by petitioner ARARO even
lowers its chances to meet the 2% threshold required
by law for a guaranteed seat. Its arguments will
neither benefit nor injure the party. Thus, it has no
legal standing to raise the argument in this Court.
II. Substantive Issues
Four inviolable parameters in the Philippine
party list system
8. Veterans Federation Party v. Commission on
Elections laid down the “four inviolable parameters” in
determining the winners in a Philippine-style party-list
election based on a reading of the Constitution and
Republic Act No. 7941:
First, the twenty percent allocation - the combined
number of all party-list congressmen shall not exceed
twenty percent of the total membership of the House
of Representatives, including those elected under the
party list.
Second, the two percent threshold - only those
parties garnering a minimum of two percent of the
total valid votes cast for the party-list system are
“qualified” to have a seat in the House of
Representatives.
Third, the three-seat limit - each qualified party,
regardless of the number of votes it actually obtained,
is entitled to a maximum of three seats; that is, one
“qualifying” and two additional seats.
Fourth, proportional representation - the
additional seats which a qualified party is entitled to
shall be computed “in proportion to their total number
of votes.”
9. In Veterans, the court stated that the 20%
requirement in the Constitution is merely a ceiling.
10. In BANAT vs. COMELEC, the court declared
the 2% threshold in relation to the distribution of
the additional seats as void. The interpretation that
only those that obtained at least 2% of the votes may
get additional seats will not result in proportional
representation because it will make it impossible for
the party-list seats to be filled completely. In short,
the 20% share may never be filled if the 2% threshold
is maintained.
11. The most recent Atong Paglaum v.
COMELEC does not in any way modify the formula set
121
in Veterans. It only corrects the definition of valid
party-list groups. The court affirmed that party-list
groups may be national, regional, and sectoral parties
or organizations. The court abandoned the
requirement introduced in Ang Bagong Bayani that all
party-list groups should prove that they represent a
“marginalized” or “under-represented” sector.
Proper DIVISOR to achieve proportional
representation (Option C)
12. The divisor helps to determine the correct
percentage of representation of party-list groups as
intended by the law. It measures the relation between
the share of the total seats and the share of the total
votes of the party-list.
13. The petitioner ARARO argues that the votes of all
the registered voters who actually voted in the May
2010 elections should be included in the computation
of the divisor whether valid or invalid. Invalid votes
include those votes that were made
for disqualified party-list groups, votes that
were spoiled due to improper shading, erasures in the
ballots, and even those that did not vote for any
party-list candidate at all. All of the votes should be
included in the divisor to determine the 2% threshold.
14. The court agrees with the petitioner but only to
the extent that votes later on determined to be invalid
due to no cause attributable to the voter should not
be excluded in the divisor. In other words, votes
cast validly for a party-list group listed in the ballot
but later on disqualified should be counted as part of
the divisor. To do otherwise would be to
disenfranchise the voters who voted on the basis of
good faith that that ballot contained all the qualified
candidates. Definitely, it is not the voter’s fault that
the party-list group in the ballot it votes for will be
subsequently disqualified. The voter should not be
penalized.
15. However, following this rationale, party-list
groups listed in the ballot but whose disqualification
attained finality prior to the elections and whose
disqualification was reasonably made known by the
Commission on Elections to the voters prior to such
elections should not be included in the divisor. The
votes cast in favor of a candidate “disqualified with
finality” should be considered stray and not be
counted. (see Cayat v. Commission on Elections)
16. Not all votes cast in the elections should be
included in the divisor. Contrary to the argument of
the petitioner, Section 11(b) of Republic Act No. 7941
is clear that only those votes cast for the party-list
system shall be considered in the computation of the
percentage of representation.
17. The total votes cast do not include invalid votes.
The invalid votes, for the determination of the
denominator, may be votes that were spoiled or votes
that resulted from the following: improper shading or
having no shade at all; existence of stray or
ambiguous marks; tears in the ballot; and/or ballots
rejected by the Precinct Count Optical Scan (PCOS)
machines under the paper-based automated election
system. All these are causes that nullify the count for
that vote that can be attributable to the voter’s action.
BANAT Formula (Old vs New)
18. Comelec applied the (old) formula used
in BANAT vs. COMELEC to arrive at the winning
party-list groups and their guaranteed seats, where:
[No. of votes of the Party List / Total No. of votes for
party-list candidates] = % of votes garnered by the
Party List
19. Under the present ruling, the (new or modified)
formula to determine the proportion garnered by the
partylist group would now be:
[No. of votes of the Party List / Total No.
of VALID votes for party-list candidates] = % of
votes garnered by the Party List
20. The divisor shall be the total number
of valid votes cast for the partylist system.
The DIVISOR shall INCLUDE:
(a) votes cast for party-list groups whose names are
in the ballot but are subsequently disqualified.
The DIVISOR shall NOT INCLUDE:
(a) votes cast for party-list groups listed in the ballot
but whose disqualification attained finality prior to the
elections and whose disqualification was
reasonably made known by the Commission on
Elections to the votersprior to such elections
122

(b) votes that are declared spoiled or invalid.
37. Case Summary
Goh vs. Bayron and Comelec (2014)
G.R. No. 212584 | 2014-11-25
Subject: COMELEC’s Fiscal Autonomy; Expenditures
for the conduct of recall electionsis deemed covered
under COMELEC appropriations for operating
expenditures; The requirement that an appropriation
'must be for a specific purpose' is satisfied even if the
indicated purpose is capable of further specification;
COMELEC Chairman's authority to fund recall elections
from savings;
Facts:
In March 2014, Alroben J. Goh filed before the
COMELEC a recall petition against Mayor Lucilo R.
Bayron, the incumbent mayor of Puerto Princesa City,
due to loss of trust and confidence brought about by
“gross violation of pertinent provisions of the Anti-
Graft and Corrupt Practices Act, gross violation of
pertinent provisions of the Code of Conduct and
Ethical Standards for Public Officials, Incompetence,
and other related gross inexcusable
negligence/dereliction of duty, intellectual dishonesty
and emotional immaturity.”
The COMELEC promulgated Resolution No. 9864
which found the recall petition sufficient in form and
substance, but suspended further proceedings on
recall until the funding issue raised by the Finance
Services Department shall have been resolved.
Mayor Bayron filed with the COMELEC an Motion for
Reconsideration and prayed for the dismissal of the
recall petition.
The COMELEC promulgated Resolution No. 9882
which suspended any proceeding relative to recall as
the recall process does not have an (line item)
appropriation in the General Appropriations Act of
2014 (2014 GAA) and the 2014 GAA does not provide
the COMELEC with legal authority to commit public
funds for the recall process. The COMELEC concluded
that “until a law is passed by Congress appropriating
funds for recall elections – either by approving the
Commission’s budget proposal for FY 2015 or through
a supplemental (special) appropriation for FY 2014 –
any proceeding relative to the instant petition for
recall should be suspended further.”
Goh filed the present Petition challenging the above
COMELEC Resolutions.
Held:
1. The COMELEC committed grave abuse of discretion
in issuing Resolution Nos. 9864 and 9882. The 2014
GAA provides the line item appropriation to allow the
COMELEC to perform its constitutional mandate of
conducting recall elections. There is no need for
supplemental legislation to authorize the COMELEC to
conduct recall elections for 2014.
COMELEC’s Fiscal Autonomy
2. The 1987 Constitution expressly provides the
COMELEC with the power to “[e]nforce and administer
all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.”
The 1987 Constitution not only guaranteed the
COMELEC’s fiscal autonomy, but also granted its head
(COMELEC Chairman) as authorized by law, to
augment items in its appropriations from its savings.
The 2014 GAA provides such authorization to the
COMELEC Chairman.
Expenditures for the conduct of recall
electionsis deemed covered under COMELEC
appropriations for operating expenditures
3. Despite Resolution No. 9882’s statement about the
alleged failure of the 2014 GAA to provide for a line
item appropriation for the conduct of recall elections,
the court holds that the 2014 GAA actually expressly
provides for a line item appropriation for the conduct
and supervision of recall elections. This is found in
the Programs categoryof its 2014 budget, which the
COMELEC admits in its Resolution No. 9882 is a “line
item for the ‘Conduct and supervision of elections,
referenda, recall votes and plebiscites.’”
4. In addition, one of the specific constitutional
functions of the COMELEC is to conduct recall
elections. When the COMELEC receives a budgetary
appropriation for its “Current Operating Expenditures,”
such appropriation includes expenditures to carry out
its constitutional functions, including the conduct of
recall elections.
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5. In Socrates vs. COMELEC, recall elections were
conducted even without a specific appropriation for
recall elections in the 2002 GAA. [Thus], we find it
difficult to justify the COMELEC’s reasons why it is
unable to conduct recall elections in 2014 when the
COMELEC was able to conduct recall elections in 2002
despite lack of the specific words “Conduct and
supervision of ...recall votes” in the 2002 GAA. In
facts, in the 2002 GAA, the phrase “Conduct and
supervision of elections and other political exercises”
was sufficient to fund the conduct of recall elections.
In the 2014 GAA, there is a specific line item
appropriation for the “Conduct and supervision of ...
recall votes .”
The requirement that an appropriation 'must be
for a specific purpose' is satisfied even if the
indicated purpose is capable of further
specification
6. To be valid, an appropriation must indicate a
specific amount and a specific purpose. However, the
purpose may be specific even if it is broken down into
different related sub-categories of the same nature.
For example, the purpose can be to “conduct
elections,” which even if not expressly spelled out
covers regular, special, or recall elections. The
purpose of the appropriation is still specific – to fund
elections, which naturally and logically include, even if
not expressly stated, not only regular but also special
or recall elections.
7. The constitutional test for validity is not how
itemized the appropriation is down to the project level
but whether the purpose of the appropriation is
specific enough to allow the President to exercise his
line-item veto power. Section 23, Chapter 4, Book VI
of the Administrative Code provides a stricter
requirement by mandating that there must be a
corresponding appropriation for each program and for
each project. A project is a component of
a program which may have several projects.
A program is equivalent to the specific purpose of an
appropriation. An item of appropriation for school-
building is a program, while the specific schools to be
built, being the identifiable outputs of the program,
are the projects. The Constitution only requires a
corresponding appropriation for a specific purpose
or program, not for the sub-set of projects or
activities. We thus find unnecessary the COMELEC’s
protests regarding the difference between “Projects”
and “Programs” for their failure to allocate funds for
any recall process in 2014.
COMELEC Chairman's authority to fund recall
elections from savings
8. Despite the PhP2 billion to PhP10.7 billion savings
existing in the COMELEC’s coffers, the COMELEC
asserts that it cannot legally fund the exercise of recall
elections. The power to augment from savings lies
dormant until authorized by law.
9. The 2014 GAA provides a line item appropriation
for the COMELEC’s conduct of recall elections. Since
the COMELEC now admits that it does not have
sufficient funds from its current line item
appropriation for the “Conduct and supervision
of..recall votes” to conduct an actual recall election,
then there is therefore an actual deficiency in its
operating funds for the current year. This is a situation
that allows for the exercise of the COMELEC
Chairman’s power to augment actual deficiencies in
the item for the “Conduct and supervision of ..recall
votes ” in its budget appropriation.
10. Contrary to the COMELEC’s assertion,
the appropriations for personnel services and
maintenance and other operating expenses falling
under “Conduct and supervision of elections,
referenda, recall votes and plebiscites”constitute a line
item which can be augmented from the COMELEC’s
savings to fund the conduct of recall elections in 2014.
The conduct of recall elections requires only operating
expenses, not capital outlays. The COMELEC’s existing
personnel in Puerto Princesa are the same personnel
who will evaluate the sufficiency of the recall petitions
and conduct the recall elections.
11. Moreover, the line item appropriation for the
“Conduct and supervision of x x x recall votes x x x” in
the 2014 GAA is sufficient to fund recall elections.
There is no constitutional requirement that the
budgetary appropriation must be loaded in
“contingent funds.” The Congress has plenary power
to lodge such appropriation in current operating
expenditures.
38. Case Summary
Gaminde vs. COA (2000)
G.R. No. 140335 | 2000-12-13
124
Subject: Rotational system of appointment; Term vs
Tenure; Gaminde is bound by the term of the
appointment she accepted which expired on February
2, 1999; Gaminde entitled to receive salaries and
emoluments for period served as de fact officer in
good faith
Facts:
On June 11, 1993, the President of the Philippines
appointed petitioner Thelma P. Gaminde, ad interim,
as Commissioner of the Civil Service Commission
(CSC). She assumed office after taking an oath of
office. Subsequently, the Commission on Appointment
confirmed her appointment. The appointment paper
stated that: “you are hereby appointed, ad interim,
COMMISSIONER, CIVIL SERVICE COMMISSION, for a
term expiring February 2, 1999.”
On February 24, 1998, petitioner sought clarification
from the Office of the President as to the expiry date
of her term of office. The Chief Presidential Legal
Counsel opined that petitioner's term of office would
expire on February 2, 2000, not on February 2, 1999.
Relying on said advisory opinion, petitioner remained
in office after February 2, 1999. CSC Chairman de
Leon wrote the Commission on Audit (COA) requesting
an opinion on whether or not Commissioner Gaminde
and her co-terminous staff may be paid their salaries
notwithstanding the expiration of their appointments
on February 2, 1999.
The COA General Counsel issued an opinion that the
term of Commissioner Gaminde has expired on
February 2, 1999 as stated in her appointment papers.
Consequently, the CSC Resident Auditor issued a
notice of disallowance on the salaries and emoluments
pertaining to petitioner Gaminde and her co-terminous
staff, effective February 2, 1999.
Petitioner appealed the disallowance to the COA en
banc but the COA affirmed the propriety of the
disallowance, holding that petitioner's term of office is
stated in her appointment paper which set the
expiration date on February 2, 1999, and that COA is
bereft of power to recognize an extension of her term,
not even with the implied acquiescence of the Office
of the President. Motion for reconsideration was
denied. Hence, the present petition.
Held:
Rotational system of appointment
1. The term of office of the Chairman and members
of the Civil Service Commission is prescribed in under
Article IX, 1987 Constitution, as follows:
"Section 1 (2). The Chairman and the Commissioners
shall be appointed by the President with the consent
of the Commission on Appointments for a term of
seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven
years, a Commissioner for five years, and another
Commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the
unexpired term of the predecessor. In no case shall
any Member be appointed or designated in a
temporary or acting capacity.
2. The rotational system for the appointment of CSC
members was first introduced under the 1973
Constitution. The operation of the rotational plan
requires two conditions, both indispensable to its
workability:
(a) that the terms of the first three (3) Commissioners
should start on a common date, and,
(b) that any vacancy due to death, resignation or
disability before the expiration of the term should only
be filled only for the unexpired balance of the
term. (see Republic vs. Imperial)
3. Applying the foregoing conditions to the case at
bar, the appropriate starting point of the terms of
office of the first appointees to the Constitutional
Commissions under the 1987 Constitution must be on
February 2, 1987, the date of the adoption of the
1987 Constitution. In case of a belated appointment
or qualification, the interval between the start of the
term and the actual qualification of the appointee
must be counted against the latter.
Term vs Tenure
4. In the law of public officers, there is a settled
distinction between "term" and "tenure." "The term of
an office must be distinguished from the tenure of the
incumbent. The term means the time during which the
officer may claim to hold office as of right, and fixes
the interval after which the several incumbents shall
succeed one another. The tenure represents the term
125
during which the incumbent actually holds the office.
The term of office is not affected by the hold-over.
The tenure may be shorter than the term for reasons
within or beyond the power of the incumbent.
5. Article XVIII, Transitory Provisions, 1987
Constitution provides:
"SEC. 15. The incumbent Members of the Civil Service
Commission, the Commission on Elections, and the
Commission on Audit shall continue in office for one
year after the ratification of this Constitution, unless
they are sooner removed for cause or become
incapacitated to discharge the duties of their office or
appointed to a new term thereunder. In no case shall
any Member serve longer than seven years including
service before the ratification of this Constitution."
6. What the above quoted Transitory Provisions
contemplate is "tenure" not "term" of the incumbent
Chairmen and Members of the Civil Service
Commission, the Commission on Elections and the
Commission on Audit, who "shall continue in office for
one year after the ratification of this Constitution,
unless they are sooner removed for cause or become
incapacitated to discharge the duties of their office or
appointed to a new term thereunder." The term
"unless" imports an exception to the general rule.
Clearly, the transitory provisions mean that the
incumbent members of the Constitutional
Commissions shall continue in office for one year after
the ratification of this Constitution under their existing
appointments at the discretion of the appointing
power, who may cut short their tenure by: (1) their
removal from office for cause; (2) their becoming
incapacitated to discharge the duties of their office, or
(3) their appointment to a new term thereunder, all of
which events may occur before the end of the one
year period after the effectivity of the Constitution.
7. However, the transitory provisions do not affect
the term of office fixed in Article IX, providing for a
seven-five-three year rotational interval for the first
appointees under this Constitution.
Gaminde is bound by the term of the
appointment she accepted which expired on
February 2, 1999
8. Gaminde is bound by the term of the appointment
she accepted, expiring February 2, 1999. In this
connection, the letter of Deputy Executive Secretary
Renato Corona clarifying that her term would expire
on February 2, 2000, was in error. What was
submitted to the Commission on Appointments was a
nomination for a term expiring on February 2, 1999.
Thus, the term of her successor must be deemed to
start on February 2, 1999, and expire on February 02,
2006.
Gaminde entitled to receive salariesand
emoluments for period served as de fact officer
in good faith
9. However, she served as de facto officer in good
faith until February 02, 2000, and thus entitled to
receive her salary and other emoluments for actual
service rendered. Consequently, the Commission on
Audit erred in disallowing in audit such salary and
other emoluments, including that of her co-terminous
staff.
39.Case Summary
Funa vs MECO and COA (2014)
G.R. No. 193462 | 2014-02-04
Subject: Petition, even if rendered moot and
academic by supervening events, may still be decided
upon under exceptional circumstances; Legal standing
of petitioner as a citizen; Audit jurisdiction of the COA;
MECO is Not a GOCC or a Government
Instrumentality; MECO is organized as a Non-Stock
Corporation; MECO performs functions with a public
aspect; MECO is Not owned or controlled by the
Government; MECO is a Sui Generis entity; Certain
accounts of MECO (Verification Fees and Consular
Fees) are subject to audit by the COA;
Facts:
After the Chinese civil war, China was faced with two
(2) governments: (i) the communist People’s Republic
of China (PROC) which controls the mainland
territories, and (ii) the nationalist Republic of China
(ROC) which controls the island of Taiwan. Both the
PROC and ROC adhered to a policy of “One China”
i.e., the view that there is only one legitimate
government in China, but differed in their respective
interpretation as to which that government is.
The Philippines formally ended its official diplomatic
relations with the government in Taiwan on 9 June
1975, when the Philippines and the PROC expressed
mutual recognition thru the Joint Communiqué
126
between the two countries.
However, this did not preclude the Philippines from
keeping unofficial relations with Taiwan on a “people-
to-people” basis. Maintaining ties with Taiwan that is
permissible by the terms of the Joint Communiqué
required the Philippines and Taiwan to course any
such relations thru offices outside of the official or
governmental organs.
Hence, on the part of the Philippines, the Manila
Economic and Cultural Office (MECO) was established
as a nonstock, non-profit corporation. The MECO
became the corporate entity “entrusted” by the
Philippine government with the responsibility of
fostering “friendly” and “unofficial” relations with the
people of Taiwan. It is the MECO that oversees the
rights and interests of Overseas Filipino Workers
(OFWs) in Taiwan; promotes the Philippines as a
tourist and investment destination for the Taiwanese;
and facilitates the travel of Filipinos and Taiwanese
from Taiwan to the Philippines, and vice versa.
In August 2010, petitioner Dennis Funa sent a letter to
the COA requesting for a “copy of the latest financial
and audit report” of the MECO invoking, for that
purpose, his “constitutional right to information on
matters of public concern.” The petitioner made the
request on the belief that the MECO, being under the
“operational supervision” of the Department of Trade
and Industry (DTI), is a government owned and
controlled corporation (GOCC) and thus subject to the
audit jurisdiction of the COA.
Assistant COA Commissioner Naranjo revealed in a
memorandum that the MECO was “not among the
agencies audited by any of the three Clusters of the
Corporate Government Sector.” Taking the
memorandum as an admission that the COA had
never audited and examined the accounts of the
MECO, petitioner Funa filed the instant petition for
mandamus in his capacities as “taxpayer, concerned
citizen, a member of the Philippine Bar and law book
author.”
This petition for mandamus seeks to compel the
Commission on Audit (COA) to audit and examine the
funds of MECO, and the MECO to submit to such audit
and examination.
Petitioner posits that all accounts of the MECO are
auditable as the latter is a bona fide GOCC or
government instrumentality. On the other hand, the
COA argues that only the accounts of the MECO that
pertain to the “verification fees” it collects on behalf of
the DOLE are auditable because the former is merely
a non-governmental entity “required to pay xxx
government share” per the Audit Code.
Held:
Petition, even if rendered moot and academic
by supervening events, may still be decided
upon under exceptional circumstances
1. The COA claims that by issuing Office Order No.
2011-698, it had already conceded its jurisdiction over
the accounts of the MECO and so fulfilled the
objective of the instant petition. The COA thus urges
that the instant petition be dismissed for being moot
and academic.
2. A case is deemed moot and academic when, by
reason of the occurrence of a supervening event, it
ceases to present any justiciable controversy. Since
they lack an actual controversy otherwise cognizable
by courts, moot cases are, as a rule, dismissible.
3. The rule that requires dismissal of moot cases,
however, is not absolute. It is subject to exceptions.
Courts will decide cases, otherwise moot and
academic, if:
(i) there is a grave violation of the Constitution;
(ii) the exceptional character of the situation and the
paramount public interest is involved;
(iii) when constitutional issue raised requires
formulation of controlling principles to guide the
bench, the bar, and the public;
(iv) the case is capable of repetition yet evading
review. (see David v. Macapagal-Arroyo)
4. The issuance by the COA of Office Order No. 2011-
698 indeed qualifies as a supervening event that
effectively renders moot and academic the main
prayer of the instant mandamus petition. A writ of
mandamus to compel the COA to audit the accounts
of the MECO would certainly be a mere superfluity,
when the former had already obliged itself to do the
same.
5. Be that as it may, this Court refrains from
127
dismissing outright the petition. We believe that the
mandamus petition was able to craft substantial issues
presupposing the commission of a grave violation of
the Constitution and involving paramount public
interest. An allegation as serious as a violation of a
constitutional or legal duty, coupled with the
pressing public interest in the resolution of all related
issues, prompts this Court to pursue a definitive ruling
thereon, if not for the proper guidance of the
government or agency concerned, then for the
formulation of controlling principles for the education
of the bench, bar and the public in general. For this
purpose, the Court invokes its symbolic function.
Moreover, the inclusion of the MECO in Office Order
No. 2011-698 appears to be entirely dependent upon
the judgment of the incumbent chairperson of the
COA, susceptible of being undone, with or without
reason, by her or even her successor. Hence, the case
now before this Court is dangerously capable of being
repeated yet evading review.
Legal standing of petitioner as a citizen
6. Petitioner has standing, as a concerned citizen, to
file the instant petition for mandamus.
7. The rules regarding legal standing in bringing
public suits, or locus standi, are already well-defined
in our case law. Standing to sue is accorded provided
that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal
disbursement of public funds or that the tax measure
is unconstitutional;
(3) for voters, there must be a showing of obvious
interest in the validity of the election law in question;
(4) for concerned citizens, there must be a showing
that the issues raised are of transcendental
importance which must be settled early; and
(5) for legislators, there must be a claim that the
official action complained of infringes upon their
prerogatives as legislators.
8. The instant petition raises issues of transcendental
importance, involved as they are with the performance
of a constitutional duty, allegedly neglected, by the
COA. Hence, petitioner, as a concerned citizen, has
the requisite legal standing to file the instant
mandamus petition.
9. Petitioner does not need to make any prior
demand on the MECO or the COA in order to maintain
the instant petition. The duty of the COA sought to be
compelled by mandamus, emanates from the
Constitution and law, which explicitly require, or
“demand,” that it perform the said duty. To the mind
of this Court, petitioner already established his cause
of action against the COA when he alleged that the
COA had neglected its duty in violation of the
Constitution and the law.
Audit jurisdiction of the COA
10. Under Section 2(1) of Article IX-D of the
1987 Constitution, the COA was vested with the
“power, authority and duty” to “examine, audit and
settle” the “accounts” of the following entities:
(a) The government, or any of its subdivisions,
agencies and instrumentalities;
(b) GOCCs with original charters;
(c) GOCCs without original charters;
(d) Constitutional bodies, commissions and offices that
have been granted fiscal autonomy under the
Constitution; and
(e) Non-governmental entities receiving subsidy or
equity, directly or indirectly, from or through the
government, which are required by law or the
granting institution to submit to the COA for audit as a
condition of subsidy or equity.
11. The term “accounts” mentioned in the subject
constitutional provision pertains to the “revenue,”
“receipts,” “expenditures” and “uses of funds and
property” of the foregoing entities.
12. Complementing the constitutional power of the
COA to audit accounts of “non-governmental entities
receiving subsidy or equity xxx from or through the
government” is Section 29(1) of the Audit Code,
which grants theCOA visitorial authority over the
following nongovernmental entities:
(a) Non-governmental entities “subsidized by the
government”
(b) Non-governmental entities “required to pay levy or
government share”
(c) Non-governmental entities that have “received
counterpart funds from the government”, and
(d) Non-governmental entities “partly funded by
donations through the government.”
128
13. Section 29(1) of the Audit Code, however, limits
the audit of the foregoing non-governmental entities
only to “funds xxx coming from or through the
government.” This section of the Audit Code is,in turn,
substantially reproduced in Section 14(1), Book V of
the Administrative Code.
14. In addition, the Administrative Code also
empowers the COA to examine and audit “the books,
records and accounts” of public utilities “in connection
with the fixing of rates of every nature, or in relation
to the proceedings of the proper regulatory agencies,
for purposes of determining franchise tax.”
MECO is Not a GOCC or a Government
Instrumentality
15. Government instrumentalities are agencies of the
national government that, by reason of some “special
function or jurisdiction” they perform or exercise, are
allotted “operational autonomy” and are “not
integrated within the department framework.”
Subsumed under the rubric “government
instrumentality” are the following entities:
1. Regulatory agencies,
2. Chartered institutions,
3. Government corporate entities (GCE) or
government
Instrumentalities with corporate powers (GICP), and
4. GOCCs
16. The Administrative Code defines a GOCC (as
reiterated in Republic Act No. 10149 or the GOCC
Governance Act of 2011):
(13) Government-owned or controlled
corporation refers to any agency organized as a
stock or non-stock corporation, vested with functions
relating to public needs whether governmental or
proprietary in nature, and owned by the Government
directly or through its instrumentalities either wholly,
or, where applicable as in the case of stock
corporations, to the extent of at least fifty-one (51)
per cent of its capital stock: x x x.
17. GOCCs, therefore, are “stock or non-stock”
corporations “vested with functions relating to public
needs” that are “owned by the Government directly or
through its instrumentalities.” By definition, three
attributes thus make an entity a GOCC:
(i) Its organization as stock or Non-stock Corporation
(ii) The public character of its function;
(iii) Government ownership over the same.
18. Possession of all three attributes is necessary to
deem an entity a GOCC.
19. In this case, MECO possesses the first and second
attributes. It is the third attribute, which the MECO
lacks.
MECO is organized as a Non-Stock Corporation
(1st GOCC attribute present)
20. MECO was incorporated as a non-stock
corporation under the Corporation Code. The purposes
for which the MECO was organized are somewhat
analogous to those of a trade, business or industry
chamber, but only on a much larger scale i.e., instead
of furthering the interests of a particular line of
business or industry within a local sphere, the MECO
seeks to promote the general interests of the Filipino
people in a foreign land. Finally, none of the income
derived by the MECO is distributable as dividends to
any of its members, directors or officers.
MECO performs functions with a public aspect
(2nd GOCC attribute present)
21. Consistent with its corporate purposes, the MECO
was “authorized” by the Philippine government to
perform certain “consular and other functions” relating
to the promotion, protection and facilitation of
Philippine interests in Taiwan. (see Sections 1 and 2 of
EO No. 15, s. 2001)
22. The functions of the MECO bears an uncanny
similarity to some of the functions typically performed
by the DFA itself, through the latter’s diplomatic and
consular missions.The functions of the MECO, in other
words, are of the kind that would otherwise be
performed by the Philippines’ own diplomatic and
consular organs, if not only for the government’s
acquiescence that they instead be exercised by the
MECO. Evidently, the functions vested in the MECO
are impressed with a public aspect.
MECO is Not owned or controlled by the
Government (3rd GOCC attribute ABSENT)
129

23. The government owns a stock or non-stock
corporation if it has controlling interest in the
corporation. In astock corporation, the controlling
interest of the government is assured by its ownership
of at least fifty-one percent (51%) of the corporate
capital stock. In a non-stock corporation, like the
MECO, jurisprudence teaches that the controlling
interest of the government is affirmed when “at least
majority of the members are government officials
holding such membership by appointment or
designation” or there is otherwise “substantial
participation of the government in the selection” of
the corporation’s governing board.
24. Petitioner argues that the government has
controlling interest in the MECO because it is the
President of the Philippines that indirectly appoints the
directors of the corporation thru “desire letters”
addressed to the corporation’s board.
25. The “desire letters” that the President transmits
are merely recommendatory and not binding on
MECO. The MECO maintains that, as a corporation
organized under the Corporation Code, matters
relating to the election of its directors and officers, as
well as its membership, are ultimately governed by
the appropriate provisions of the said code, its articles
of incorporation and its by-laws.
26. It is significant to note that none of the original
incorporators of the MECO were shown to be
government officials at the time of the corporation’s
organization. Indeed, none of the members, officers
or board of directors of the MECO, from its
incorporation up to the present day, were established
as government appointees or public officers
designated by reason of their office. There is, in fact,
no law or executive order that authorizes such an
appointment or designation. Hence, from a strictly
legal perspective, it appears that the presidential
“desire letters” are, no matter how strong its
persuasive effect may be, merely recommendatory.
MECO is a Sui Generis entity
27. The exclusion of the MECO from a GOCC makes it
easier to exclude the same from any other class of
government instrumentality. The other government
instrumentalities i.e., the regulatory agencies,
chartered institutions and GCE/GICP are all, by explicit
or implicit definition, creatures of the law. The MECO
cannot be any other instrumentality because it was
merely incorporated under the Corporation Code.
28. Nonetheless, MECO is uniquely situated as
compared with other private corporations. From its
overreaching corporate objectives, its special duty and
authority to exercise certain consular functions, up to
the oversight by the executive department over its
operations—all the while maintaining its legal status
as a non-governmental entity—the MECO is, for all
intents and purposes, sui generis.
Certain accounts of MECO (Verification Fees
and Consular Fees) are subject to audit by the
COA
29. Despite being a non-governmental entity,
the MECO may still be audited with respect to the
“verification fees”for overseas employment documents
that the MECO collects from Taiwanese employers on
behalf of the DOLE. The “verification fees” refers to
the “service fee for the verification of overseas
employment contracts, recruitment agreement or
special powers of attorney” that the DOLE was
authorized to collect under Section 7 of EO No. 1022.
Since the Philippines does not maintain an official post
in Taiwan, the DOLE entered into a “series” of
Memorandum of Agreements with the MECO, which
made MECO the DOLE’s collecting agent with respect
to the “verification fees” that may be due from
Taiwanese employers of OFW.
30. Aside from the DOLE “verification fees,” however,
the MECO also collects “consular fees,” or fees it
collects from the exercise of its delegated consular
functions (Issuance of temporary visitors’ visa, etc.) .
The “consular fees,” although held and expended by
the MECO by virtue of EO No. 15, s. 2001, are,
without question, derived from the exercise by the
MECO of consular functions—functions it performs by
and only through special authority from the
government. The visas, passports and other
documents that the MECO issues pursuant to its
authorized functions still emanate from the Philippine
government itself. It is the government that has
ultimate control over the disposition of the “consular
fees,” which control the government did exercise
when it provided in Section 2(6) of EO No. 15, s. 2001
that such funds may be kept by the MECO “to defray
the cost of its operations.”
130
31. Section 14(1), Book V of the Administrative Code
authorizes the COA to audit accounts of non-
governmental entities “required to pay ...or have
government share” but only with respect to “funds xxx
coming from or through the government.” This
provision of law perfectly fits the MECO.
32. The Memorandum of Agreement between the
DOLE and the MECO and Section 2(6) of EO No. 15, s.
2001, vis-à-vis, respectively, the “verification fees”
and the “consular fees,” grant and at the same time
limit the authority of the MECO to collect such fees.
That grant and limit require the audit by the COA of
the collections thereby generated.
40. Case Summary
Santiago vs Comelec (1997)
G.R. No. 127325 | 1997-03-19
Subject:
Initiative and Referendum
Facts:
Under the 1935 and 1973 Constitutions, only two
methods of proposing amendments to, or revision of,
the Constitution were recognized: (1) by Congress
upon a vote of three-fourths of all its members and
(2) by a constitutional convention.
Under the 1987 Constitution, in Section 2 of Article
XVII, the system of initiative was introduced through
which the people may directly propose amendments
to the Constitution.
In 1996, Atty. Jesus Delfin filed with COMELEC a
"Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative"
(Delfin Petition)
The Delfin Petition alleged that the provisions sought
to be amended are Sections 4 and 7 of Article VI,
Section 4 of Article VII, and Section 8 of Article X of
the Constitution. Attached to the petition is a copy of
a "Petition for Initiative on the 1987 Constitution"
embodying the proposed amendments. It moved that
Comelec fix the time and dates for signature
gathering. After it is signed by at least twelve per cent
of the total number of registered voters in the country
it will be formally filed with the COMELEC
Senator Roco filed a Motion to Dismiss contending
that the Delfin Petition is not the initiatory petition
properly cognizable by the COMELEC. What vests
jurisdiction upon the COMELEC is the filing of a
petition for initiative which is already signed by the
required number of registered voters. Proponents of a
constitutional amendment cannot avail of the
authority and resources of the COMELEC to assist
them in securing the required number of signatures.
Senator Miriam Defensor Santiago and others filed an
action for prohibition raising the argument that: (1)
The constitutional provision on people's initiative to
amend the Constitution can only be implemented by
law and no such law has been passed. While Republic
Act 6735 provides for three systems of initiative (on
the Constitution, on statutes, and on local legislation),
however, said law is inadequate with respect to a
system of initiative on the Constitution. (2) The
people's initiative is limited to amendments to the
Constitution, not to revision thereof. Extending or
lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative
Held:
System of Initiative
1. The system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not
self-executory.
2. While the Constitution has recognized or granted
the right of the people to directly
propose amendments to the Constitution through the
system of initiative, the people cannot exercise it if
Congress, for whatever reason, does not provide for
its implementation by way of a law or statute.
3. Based on the interpellations of the 1986
Constitutional Commission which drafted the 1987
Constitution,initiative can only relate to
"amendments" not "revision” of the
Constitution. Moreover, the process of proposing
amendments to the Constitution through initiative
must be more rigorous and difficult than the initiative
on legislation.
RA 6735 is Inadequate to cover the System of
Initiative on the Constitution
131

4. RA 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the
Constitution. However, RA 6735 is incomplete,
inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments
to the Constitution is concerned.
5. Although Section 3 (Definition of Terms) of RA 6753
defines initiative on amendments to the Constitution,
itdoes not provide for the contents of a petition for
initiative on the Constitution. Other provisions of the
Act cannot be made to apply to fill in the gap since
these provisions expressly refer to
“proposed laws sought to be enacted, approved or
rejected, amended or repealed”
6. While RA 6735 provides separate Subtitles for
initiative and referendum on laws and ordinances, no
subtitle is provided for initiative on the Constitution.
This omission means that the main thrust of RA 6753
is initiative and referendum on national and local laws.
If Congress intended RA 6735 to fully provide for the
implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle
therefor.
7. This deliberate omission indicates that the matter of
people's initiative to amend the Constitution was left
to some separate and future law.
Subordinate Legislation (Delegation to fill in
gaps in the law)
8. The rule is that what has been delegated, cannot
be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest.
9. The recognized exceptions to the rule are as
follows:
(1) Delegation of tariff powers to the President under
Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President
under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies
10. The delegation is valid only if the law (a)
is complete in itself, setting forth therein the policy
to be executed, carried out, or implemented by the
delegate; and (b) fixes a sufficient standard - the
limits of which are sufficiently determinate and
determinable - to which the delegate must conform in
the performance of his functions.
11. A sufficient standard is one which defines
legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it.
It indicates the circumstances under which the
legislative command is to be effected.
Invalid Delegation to Comelec (Lack of
Sufficient Standard)
12. The deficiency of RA 6735 are fatal and cannot be
cured by "empowering" the COMELEC "to promulgate
such rules and regulations as may be necessary to
carry out the purposes of the Act”.
13. Empowering the COMELEC, an administrative body
exercising quasi-judicial functions, to promulgate rules
and regulations is a form of delegation of legislative
authority. However, in every case of permissible
delegation, there must be a showing that the
delegation itself is valid.
14. RA 6735 failed to satisfy both requirements in
subordinate legislation (“completeness test” and
“sufficient standard test”). The delegation of the
power to the COMELEC is then invalid. Necessarily,
COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of
the people to directly propose amendments to the
Constitution through the system of initiative. It does
not have that power under R.A. No. 6735
Petition for Initiative to Propose Amendments
on the Constitution
15. Under Section 2 of Article XVII of the Constitution
and Section 5(b)of RA 6735, a petition for initiative
on the Constitution must be signed by at least
12% of the total number of registered voters of
which every legislative district is represented
by at least 3% of the registered voters therein.
The Delfin Petition does not contain signatures of the
required number of voters. Delfin admits that the
purpose of his petition is primarily to obtain assistance
in his drive to gather signatures. Without the required
132
signatures, the petition cannot be deemed validly
initiated.
16. Since the Delfin Petition is not the initiatory
petition under RA 6735 and COMELEC Resolution No.
2300, it cannot be entertained or given cognizance of
by the COMELEC.
17. Given the foregoing, the court stated that further
discussion on the issue of whether the proposal to lift
the term limits of elective national and local officials is
an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not
academic.
41. Case Summary
Lambino v. COMELEC
G.R. No. 174153 | 2006-10-25
Subject:
Section 2, Article XVII of the Constitution (Amendment
by initiative), Amendment vs Revision of the
Constitution.
Facts:
Groups of individuals including Atty. Raul Lambino
(Lambino Group) gathered signatures for an initiative
petition to change the 1987 Constitution. The
proposed changes under the initiative petition will shift
the present Bicameral-Presidential system to a
Unicameral-Parliamentary form of government.
The Lambino Group alleged that the 6.3 Million
signatures gathered constituted at least 12 percent of
all registered voters, with each legislative district
represented by at least 3percent of its registered
voters.
The Lambino Group filed a petition with the COMELEC
to hold a plebiscite that will ratify their initiative
petition under Republic Act No. 6735 or the Initiative
and Referendum Act. The COMELEC denied the
Lambino petition and invoked the ruling in Santiago v.
Comelec declaring RA 6735 inadequate to implement
the initiative clause on proposals to amend the
Constitution.
Held:
Section 2, Article XVII (Amendment of the
Constitution through a People's Initiative)
1. The Lambino Group's initiative is void and
unconstitutional because it fails to comply with the
requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly
proposed by the people through initiative upon a
petition."
2. Section 2, Article XVII of the Constitution is the
governing constitutional provision that allows a
people's initiative to propose amendments to the
Constitution. It states:
Sec 2. Amendments to this Constitution may likewise
be directly proposed by the people through initiative
upon a petition of at least twelve per centum of the
total number of registered voters of which every
legislative district must be represented by at least
three per centum of the registered voters therein. Xxx
3. Two essential elements must be present. First, the
people must author and thus sign the entire proposal.
No agent or representative can sign on their
behalf. Second, the proposal must be embodied in a
petition.
4. In order to comply with these essential elements,
the petition must contain the full text of the
proposed amendments. The full text of the proposed
amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition
must state the fact of such attachment.
5. Section 2, Article XVII of the Constitution does not
expressly state that the petition must set forth the full
text of the proposed amendments. However, the
deliberations clearly show that the framers of the
Constitution intended to adopt the relevant American
jurisprudence on people's initiative where the
requirement is that the people must first see the full
text of the proposed amendments before they sign to
signify their assent. This is so that registered voters
can intelligently evaluate whether to sign the initiative
petition.
6. The Lambino Group merely submitted a copy of
the signature sheet. The signature sheet does not
show to the people the draft of the proposed changes
before they are asked to sign the signature sheet. The
133
signature sheets do not also contain any indication
that the draft petition is attached to, or circulated
with, the signature sheets. The signature sheet is not
the 'petition' envisioned in the initiative clause of the
Constitution.
Logrolling in the petition
7. American jurisprudence on initiatives
outlaws logrolling - when the initiative petition
incorporates an unrelated subject matter in the same
petition. This puts the people in a dilemma since they
can answer only either yes or no to the entire
proposition, forcing them to sign a petition that
effectively contains two propositions, one of which
they may find unacceptable. Under American
jurisprudence, the effect of logrolling is to nullify the
entire proposition and not only the unrelated subject
matter.
8. The proposed Section 4(4) of the Transitory
Provisions, mandating the interim Parliament to
propose further amendments or revisions to the
Constitution, is a subject matter totally unrelated to
the shift in the form of government.
Amendment vs Revision of the Constitution
9. Revision broadly implies a change that alters a
basic principle in the constitution, like altering the
principle of separation of powers or the system of
checks-and-balances. There is also revision if the
change alters the substantial entirety of the
constitution, as when the change affects substantial
provisions of the constitution. Revision generally
affects several provisions of the constitution. The
intention of a revision is to contemplate a re-
examination of the entire document, or of provisions
of the document which have over-all implications for
the entire document
10. Amendment broadly refers to a change that
adds, reduces, or deletes without altering the basic
principle involved. Amendment generally affects only
the specific provision being amended. The intention of
an amendment is to improve specific parts or to add
new provisions deemed necessary to meet new
conditions or to suppress specific portions that may
have become obsolete or that are judged to be
dangerous. [Examples: reducing the voting age from
18 years to 15 years; reducing Filipino ownership of
mass media companies from 100 percent to 60
percent; change requiring a college degree as an
additional qualification for election to the Presidency]
11. US courts have developed a two-part test in
determining whether the proposed changes constitute
an amendment or revision:
(a) The quantitative test asks whether the proposed
change is 'so extensive in its provisions as to change
directly the 'substantial entirety' of the constitution by
the deletion or alteration of numerous existing
provisions.' The court examines only the number of
provisions affected and does not consider the degree
of the change.
(b) The qualitative test asks whether the change
will 'accomplish such far reaching changes in the
nature of our basic governmental plan as to amount to
a revision'. Whether there is an alteration in the
structure of government is a proper subject of inquiry.
12. The Lambino Group's initiative is a revision and
not merely an amendment. Quantitatively, the
Lambino Group's proposed changes overhaul two
articles - Article VI on the Legislature and Article VII
on the Executive - affecting a total of 105 provisions in
the entire Constitution. Qualitatively, the proposed
changes alter substantially the basic plan of
government, from presidential to parliamentary, and
from a bicameral to a unicameral legislature.
People's Initiative applies only to amendments
13. Article XVII of the Constitution speaks of three
modes of amending the Constitution.
a) By Congress upon three-fourths vote of all its
Members.
b) By Constitutional convention.
c) through a People's initiative.
14. A people's initiative to change the
Constitution applies only to an amendment of the
Constitution andnot to its revision. In
contrast, Congress or a Constitutional convention can
propose both amendments and revisions to the
Constitution. (Sec 1 and 2, Article XVII of the
Constitution)
15. In other words, only Congress or a Constitutional
convention may propose revisions to the Constitution.
134
A people's initiative is only available to propose
amendments.
16. Since a revision of a constitution affects basic
principles, or several provisions of a constitution,
a deliberative body with recorded proceedings is best
suited to undertake a revision.
Revisit of Santiago v Comelec not necessary
17. The Court must decline to revisit Santiago which
effectively ruled that RA 6735 does not comply with
the requirements of the Constitution to implement the
initiative clause on amendments to the Constitution.
An affirmation or reversal of Santiago will not change
the outcome of the present petition.
18. Even assuming that RA 6735 is valid to implement
the constitutional provision on initiatives to amend the
Constitution, this will not change the result here
because the present petition violates Section 2, Article
XVII of the Constitution. To be a valid initiative, the
present initiative must first comply with Section 2,
Article XVII of the Constitution even before complying
with RA 6735.
19. The present initiative violates Section 5(b) of RA
6735 which requires that the "petition for an initiative
on the 1987 Constitution must have at least twelve
per centum (12%) of the total number of registered
voters as signatories." Section 5(b) of RA 6735
requires that the people must sign the "petition x x x
as signatories." The 6.3 million signatories did not sign
the petition filed with the COMELEC. Only Atty.
Lambino, Atty. Demosthenes B. Donato, and Atty.
Alberto C. Agra signed the petition and amended
petition as counsels for "Raul L. Lambino and Erico B.
Aumentado, Petitioners.”
42. Case Summary
Gonzales v. COMELEC (1967)
G.R. No. L-28196 and G.R. No. L-28224 | 1967-11-09
Subject:
Constitutional Amendments, Reapportionment of
congressional districts, De facto doctrine
Facts:
On March 16, 1967, the Senate and the House of
Representatives passed Joint Resolutions (a) to
increase the membership of the House of
Representatives from a maximum of 120, as provided
in the present Constitution, to a maximum of 180 to
be apportioned among the several provinces; (b) to
call a convention to propose amendments to the
present Constitution; and (c) to amend Section 16,
Article VI of the said Constitution so they can become
delegates themselves to the Convention.
Subsequently, Congress passed a bill which became
RA 4913, providing that the amendments to the
Constitution proposed in the aforementioned
Resolutions be submitted, for approval by the people,
at the general elections which shall be held on
November 14, 1967.
In this consolidated petition, petitioners Ramon A.
Gonzales and PHILCONSA seek to declare RA 4913
unconstitutional and to restrain COMELEC from
holding the plebiscite for the ratification of the
constitutional amendments proposed in Joint
Resolutions Nos. 1 and 3.
It is further contested that said resolutions are null
and void because: (1) The Members of Congress,
which approved the proposed amendments and the
resolutions are, at best, de facto Congressmen; (2)
Congress may adopt either one of two alternatives--
propose amendments or call a convention-- but may
not avail of both at the same time; (3) The election, in
which proposals for amendment to the Constitution
shall be submitted for ratification, must be a special
election, not a general election.
Held:
Not a Political Question
1. The judicial department is the only constitutional
organ which can be called upon to determine the
proper allocation of powers between the several
departments and among the integral or constituent
units thereof.
2. The issue whether or not a Resolution of Congress
— acting as a constituent assembly — violates the
Constitution is essentially justiciable, not political, and,
hence, subject to judicial review, and, (Note: to the
extent that this view may be inconsistent with the
stand taken in Mabanag vs. Lopez Vito, the latter
should be deemed modified accordingly)
135

Amendment of the Constitution
3. The power to amend the Constitution or to
propose amendments thereto is not included in
the general grant of legislative powers to
Congress.
4. The power to amend the Constitution lies in the
inherent powers of the people—as the repository of
sovereignty in a republican state—to make, and
hence, to amend their own fundamental law.
5. Congress may propose amendments to the
Constitution merely because the same explicitly
grants such power. When exercising the same,
Senators and Members of the House of
Representatives act, not as members of
Congress, but as component elements of
a constituent assembly.
6. When acting as such, the members of Congress
derive their authority from the Constitution, unlike the
people, when performing the same function, for their
authority does not emanate from the Constitution—
they are the very source of all powers of government,
including the Constitution itself.
Ratification of Constitutional Amendments- can
be joined in a General Election
7. Also, the ratification of the amendments to the
Constitution need not necessarily be in a special
election or plebiscite called for that purpose
alone. While such procedure is highly to be preferred,
the Constitution speaks simply of “an election” at
which the amendments are submitted to the people
for their ratification.”
8. To join the ratification of the proposed amendments
with an election for candidates to public office does
not render it any less an election at which the
proposed amendments are submitted to the people for
their ratification. No prohibition being found in the
plain terms of the Constitution, none should be
inferred.
Effect of failure of Congress to reapportion
congressional districts
9. The fact that Congress is under obligation to make
apportionment, as required under the Constitution,
does not justify the conclusion that such failure
rendered Congress illegal or unconstitutional, or that
its Members have become de facto officers.
10. The Constitution does not support the view that,
upon the expiration of the period to make the
apportionment, a Congress which fails to make it is
dissolved or becomes illegal. On the contrary, it
implies necessarily that Congress shall continue to
function with the representative districts existing at
the time of the expiration of said period.
De facto doctrine
11. The title of a de facto officer cannot be assailed
collaterally. It may not be contested except directly,
by quo warranto proceedings.
12. Neither may the validity of his acts be questioned
upon the ground that he is merely a de facto officer.
And the reasons are obvious: (1) it would be an
indirect inquiry into the title to the office; and (2) the
acts of a de facto officer, if within the competence of
his office, are valid, insofar as the public is concerned.
13. The main reason for the existence of the de facto
doctrine is that public interest demands that acts of
persons holding, under color of title, an office created
by a valid statute be, likewise, deemed valid insofar as
the public—as distinguished from the officer in
question—is concerned.
14. Indeed, otherwise those dealing with officers and
employees of the Government would be entitled to
demand from them satisfactory proof of their title to
the positions they hold, before dealing with them, or
before recognizing their authority or obeying their
commands, even if they should act within the limits of
the authority vested in their respective offices,
position or employments.
Nullification of legislative acts
15. For a law to be struck down as unconstitutional, it
must be so by reason of some irreconcilable conflict
between it and the Constitution.
16. The sufficiency or insufficiency, from a
constitutional angle, of the submission for ratification
to the people depends upon whether the provisions of
RA 4913 are such as to fairly apprise the people of the
gist, the main idea or the substance of said proposals.
136
We believe that RA 4913 satisfies such requirement
and that said Act is, accordingly, constitutional
17. The provisions of Article XV of the Constitution are
satisfied so long as the electorate knows that
Resolution No. 3 permits Congressmen to retain their
seats as legislators, even if they should run for and
assume the functions of delegates to the Convention.
43. Case Summary
Tolentino vs COMELEC (1971)
G.R. No. L-34150 | 1971-10-16
Subject: The Supreme Court has jurisdiction to
determine the constitutionality of the acts of a
constitutional convention; There should only be one
election or plebiscite wherein all the proposed
amendments are submitted to the people for
ratification at the same time, not separately from each
and all of the other amendments.
Facts:
Arturo M. Tolentino filed a petition for prohibition
before the Supreme Court to restrain the Commission
on Elections (“COMELEC”) from implementing Organic
Resolution No. 1 of the Constitutional Convention of
1971, as well as the implementing acts and
resolutions of the said Convention and the COMELEC.
The pertinent portion reads:
Section 1. Section One of Article V of the Constitution
of the Philippines is amended to as follows:
Section 1. Suffrage may be exercised by (male)
citizens of the Philippines not otherwise disqualified by
law, who are (twenty-one) EIGHTEEN years or over
and are able to read and write, and who shall have
resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least
six months preceding the election.
Section 2. This amendment shall be valid as part of
the Constitution of the Philippines when approved by a
majority of the votes cast in a plebiscite to coincide
with the local elections in November 1971.
Xxx
As identified by the Supreme Court, the issue before it
for resolution was whether or not there was any
limitation or condition in Section 1 of Article XV of the
Constitution which was violated by the act of the
Convention of calling for a plebiscite on the sole
amendment contained in Organic Resolution No. 1.
Held:
The Supreme Court has jurisdiction to
determine the constitutionality of the acts of a
constitutional convention.
1. The Supreme Court, citing Gonzales v. Comelec (21
SCRA 774), held that the issue whether or not a
Resolution of Congress acting as a constituent
assembly, and, for that matter, of a constitutional
convention called for the purpose of proposing
amendments to the Constitution violates the
Constitution is essentially justiciable not political, and,
hence, subject to judicial review.
2. A constitutional convention owes its existence and
derives all its authority and power from the existing
Constitution. Thus, the Supreme Court which has the
sacred duty to give meaning and vigor to the
Constitution by interpreting and construing its
provisions and by striking down any act violative
thereof, has jurisdiction to determine the
constitutionality of the acts of a constitutional
convention.
There should only be one election or plebiscite
wherein all the proposed amendments are
submitted to the people for ratification at the
same time, not separately from each and all of
the other amendments.
3. The Supreme Court held that there was a limitation
or condition in Section 1 of Article XV of the
Constitution which was violated by the act of the
Convention of calling for a plebiscite on the sole
amendment contained in Organic Resolution No. 1,
and it was the condition and limitation that all the
amendments to be proposed by the same Convention
must be submitted to the people in a single “election”
or plebiscite.
4. In arriving at the foregoing conclusion, the
Supreme Court held that as Section 1 of Article XV of
the Constitution distinctly states that Congress sitting
as a constituent assembly or a convention called for
the purpose “may propose amendments to this
Constitution,” there is no limit as to the number of
amendments that Congress or the Convention may
137
propose. However, the same Section 1 limits the
number of election or plebiscite that may be held to
ratify any amendment or amendments proposed by
the same constituent assembly of Congress or
convention, to only one, as the said constitutional
provision definitely provides that “such amendments
shall be valid as part of this Constitution when
approved by a majority of the votes cast at
an election at which the amendments are submitted to
the people for their ratification.”
5. Moreover, all the proposed amendments must be
submitted to the people for ratification at the same
time, not separately from each and all of the other
amendments, because the Constitution has to be an
integrated and harmonious instrument, if it is to be
viable as the framework of the government it
establishes, on the one hand, and adequately
formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties,
ideology, social ideals, and national and nationalistic
policies and aspirations of the people, on the other.
This harmony can be achieved only if the people can
study with deliberation the proposed amendment in
relation to the whole existing constitution and or any
of its parts and thereby arrive at an intelligent
judgment as to its acceptability an intelligent
judgment as to its acceptability.
6. As the amendment proposed to be submitted to a
plebiscite was only the first amendment the
Convention proposed, the plebiscite being called for
the purpose of submitting the same for ratification of
the people was not authorized by Section 1 of Article
XV of the Constitution, hence all acts of the
Convention and the respondent COMELEC in that
direction were null and void.
44. Case Summary
Francisco vs. House of Representatives (2003)
G.R. No. 160261 | 2003-11-10
Subject:
Statutory Construction (of the Constitution); Reliance
on Foreign Jurisprudence to Interpret the Constitution;
Judicial Review and Separation of Powers; Requisites
for Exercise of Judicial Review; Locus Standi; Class
Suits; Impeachment, meaning of 'to Initiate';
Impeachment case vs Impeachment Proceeding
Facts:
On June 2, 2003, an impeachment complaint (1st
impeachment complaint) was filed by former
President Estrada against Chief Justice Hilario Davide,
Jr. and 7 Associate Justices for “culpable violation of
the Constitution, betrayal of public trust and other
high crimes”.
On October 22, 2003, the House Committee on Justice
voted to dismiss the complaint for being insufficient in
substance, although it was sufficient in form.
On October 23, 2003, a day after the House
Committee on Justice voted to dismiss the complaint
or 4 months and 3 weeks since the filing thereof,
a 2nd impeachment complaint was filed with the
House’s Secretary General by Representatives
Teodoro, Jr. and Funtabella against Chief Justice
Hilario Davide, founded on the alleged results of the
legislative inquiry "to conduct an investigation, in aid
of legislation, on the manner of disbursements and
expenditures by the Chief Justice of the Supreme
Court of the Judiciary Development Fund (JDF).”
The 2nd impeachment complaint was accompanied by
a “Resolution of Endorsement/ Impeachment” signed
by at least 1/3 of all the Members of the House of
Representatives.
Due to the events that took place, several instant
petitions were filed against the House of
Representatives, mostly contending that the filing of
the 2nd impeachment complaint is unconstitutional as
it violates Article XI Section 5 of the Constitution
that “no impeachment proceedings shall be
INITIATED against the same official more than
once within a period of one year”; and that
sections 16 and 17 of Rule V of the Rules of Procedure
in Impeachment Proceedings of the 12th Congress are
unconstitutional as well.
The House of Representatives argues that sections 16
and 17 of Rule V of the House Impeachment Rules do
not violate Section 3 (5) of Article XI of the present
Constitution, contending that the term "initiate" does
not mean "to file", and concludes that the one year
bar prohibiting the initiation of impeachment
proceedings against the same officials could not have
been violated as the impeachment complaint against
Chief Justice Davide and the 7 Associate Justices had
not been initiated as the House of Representatives,
acting as the collective body, has yet to act on it.
138

The resolution of this issue thus hinges on the
interpretation of the term "initiate".
Section 3 (2), Article XI of the 1987
Constitution
3 ways to file an impeachment complaint:
1) by a verified complaint for impeachment by any
member of the House of Representatives; or
2) by any citizen upon a resolution of endorsement by
any member (of the House of Representatives); or
3) by at least 1/3 of all the members of the House of
Representatives
Sections 16 and 17 of Rule V of the House
Impeachment Rules (of the 12th Congress)
Impeachment proceedings are deemed initiated:
1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is
sufficient in substance; or
2) once the House itself affirms or overturns the
finding of the Committee on Justice that the verified
complaint and/or resolution is not sufficient in
substance; or
3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least
1/3 of the members of the House
Held:
Statutory Construction (of the Constitution)
1. First, verba legis, that is, wherever possible,
the words used in the Constitution must be given their
ordinary meaning except where technical terms are
employed. We look to the language of the document
itself in our search for its meaning. We do not of
course stop there, but that is where we begin.
2. Second, where there is ambiguity, ratio legis est
anima. The words of the Constitution should
be interpreted in accordance with the intent of its
framers. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole
as to make the words consonant to that reason and
calculated to effect that purpose.
3. Finally, ut magis valeat quam pereat. The
Constitution is to be interpreted as a whole. It is a
well-established rule in constitutional construction that
no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that
all the provisions bearing upon a particular subject are
to be brought into view and to be so interpreted as to
effectuate the great purposes of the instrument.
Sections bearing on a particular subject should be
considered and interpreted together as to effectuate
the whole purpose of the Constitution and one section
is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to
stand together. In other words, the court must
harmonize them, if practicable, and must lean in favor
of a construction which will render every word
operative, rather than one which may make the words
idle and nugatory.
Reliance on Foreign Jurisprudence to Interpret
the Constitution
4. In this case, the House argues that the
impeachment proceedings are outside the scope of
judicial review in relation to Art XI Section 3(6) of the
constitution which says that the Senate has the sole
power to try and decide impeachment cases. The
House also relies on American jurisprudence to
support their claim.
5. As held in the case of Garcia vs. COMELEC, "[i]n
resolving constitutional disputes, [this Court] should
not be beguiled by foreign jurisprudence some of
which are hardly applicable because they have been
dictated by different constitutional settings and
needs." Indeed, although the Philippine Constitution
can trace its origins to that of the United States, their
paths of development have long since diverged.
6. There are also glaring distinctions between the U.S.
Constitution and the Philippine Constitution with
respect to the power of the House of Representatives
over impeachment proceedings.
139
-the U.S. Constitution bestows sole power of
impeachment to the House of Representatives without
limitation
-the Philippine Constitution, though vesting in the
House of Representatives the exclusive power to
initiate impeachment cases, provides for several
limitations to the exercise of such power as embodied
in Section 3(2), (3), (4) and (5), Article XI thereof.
These limitations include the manner of filing, required
vote to impeach, and the one year bar on the
impeachment of one and the same official.
Judicial Review and Separation of Powers
7. The Court’s power of judicial review is conferred on
the judicial branch of the government in Article VIII
section 1 of the 1987 Constitution.
8. Judicial review is an integral component of the
delicate system of checks and balances which,
together with the corollary principle of separation of
powers, forms the bedrock of our republican form of
government and insures that its vast powers are
utilized only for the benefit of the people for which it
serves.
9. When the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; rather, it only
asserts the solemn and sacred obligation assigned to
it by the Constitution to check the other departments
in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if
violative of the Constitution.
10. The power of judicial review includes the power of
review over justiciable issues in impeachment
proceedings.
Requisites for exercise of Judicial Review
11. The courts' power of judicial review is subject to
several limitations. In order for the courts to exercise
its judicial review power, the following requisites must
be established:
(1) an actual case or controversy calling for the
exercise of judicial power;
(2) the person challenging the act must have
"standing" to challenge; he must have a personal and
substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement;
(3) the question of constitutionality must be raised at
the earliest possible opportunity; and
(4) the issue of constitutionality must be the very lis
mota of the case.
Locus Standi
12. Locus standi or legal standing has been defined as
a personal and substantial interest in the case such
that the party has sustained or will sustain direct
injury as a result of the governmental act that is being
challenged.
Citizen standing
13. When suing as a citizen, the interest of the
petitioner assailing the constitutionality of a statute
must bedirect and personal. He must be able to show,
not only that the law or any government act is invalid,
but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby
in some indefinite way. It must appear that the person
complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained
of.
14. When the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies
the requirement of personal interest.
Taxpayer standing
15. In the case of a taxpayer, he is allowed to sue
where there is a claim that public funds are illegally
disbursed, or that public money is being deflected to
any improper purpose, or that there is a wastage of
public funds through the enforcement of an invalid or
unconstitutional law. Before he can invoke the power
of judicial review, however, he must specifically prove
that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he
would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It
is not sufficient that he has merely a general interest
140
common to all members of the public. At all events,
courts are vested with discretion as to whether or not
a taxpayer's suit should be entertained.
16. In this case, the Court opts to grant standing to
most of the petitioners, given their allegation that any
impending transmittal to the Senate of the Articles of
Impeachment and the ensuing trial of the Chief
Justice will necessarily involve the expenditure of
public funds.
Legislator standing
17. As for a legislator, he is allowed to sue to
question the validity of any official action which he
claims infringes his prerogatives as a legislator.
Indeed, a member of the House of Representatives
has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his
office.
Association’s standing
18. While an association has legal personality to
represent its members, especially when it is composed
of substantial taxpayers and the outcome will affect
their vital interests, the mere invocation by
the Integrated Bar of the Philippines or any member
of the legal profession of the duty to preserve the rule
of law and nothing more, although undoubtedly true,
does not suffice to clothe it with standing. Its interest
is too general. It is shared by other groups and the
whole citizenry.
19. However, a reading of the petitions shows that it
has advanced constitutional issues which deserve the
attention of this Court in view of their seriousness,
novelty and weight as precedents. It, therefore,
behooves this Court to relax the rules on standing and
to resolve the issues presented by it.
Class suits
20. When dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently
numerous to fully protect the interests of all
concerned to enable the court to deal properly with all
interests involved in the suit, for a judgment in a class
suit, whether favorable or unfavorable to the class, is,
under the res judicataprinciple, binding on all
members of the class whether or not they were before
the court.
21. Where it clearly appears that not all interests can
be sufficiently represented as shown by the divergent
issues raised in the numerous petitions before this
Court, G.R. No. 160365 as a class suit ought to fail.
22. However, since petitioners additionally allege
standing as citizens and taxpayers, their petition will
stand.
Impeachment, meaning of “to Initiate”
(Impeachment case vs Impeachment
Proceeding)
23. The word "initiate" as it twice appears in Article XI
(3) and (5) of the Constitution means to file the
complaint and take initial action on it. "Initiate" of
course is understood by ordinary men to mean, as
dictionaries do: to begin, to commence, or set going.
24. According to Father Bernas, an amicus curiae,
an impeachment proceeding is not a single act. It
is a complexus of acts consisting of a beginning, a
middle and an end.
(a) The beginning or the initiation is the filing of the
complaint and its referral to the Committee on Justice.
(b) The middle consists of those deliberative moments
leading to the formulation of the articles of
impeachment.
(c) The end is the transmittal of the articles of
impeachment to the Senate.
25. An impeachment case is the legal controversy
that must be decided by the Senate. The Constitution
provides that the House, by a vote of one-third of all
its members, can bring a case to the Senate. It is in
that sense that the House has "exclusive power" to
initiate all cases of impeachment. No other body can
do it. However, before a decision is made to initiate a
case in the Senate, a "proceeding" must be followed
to arrive at a conclusion. A proceeding must be
"initiated."
26. An impeachment proceeding takes place not in
the Senate but in the House and consists of several
steps:
(1) the filing of a verified complaint either by a
Member of the House of Representatives or by a
private citizen endorsed by a Member of the House of
141
the Representatives;
(2) the processing of this complaint by the proper
Committee which may either reject the complaint or
uphold it;
(3) whether the resolution of the Committee rejects or
upholds the complaint, the resolution must be
forwarded to the House for further processing; and
(4) the processing of the same complaint by the
House of Representatives which either affirms a
favorable resolution of the Committee or overrides a
contrary resolution by a vote of one-third of all the
members.
(5) If at least one third of all the Members upholds the
complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the
House "initiates an impeachment case." It is at this
point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged
with an impeachment "case" before the Senate as
impeachment court.
27. Father Bernas further explains: The "impeachment
proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the
end of the House proceeding and the beginning of
another proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the House
deliberates on the resolution passed on to it by the
Committee, because something prior to that has
already been done. The action of the House is already
a further step in the proceeding, not its initiation or
beginning. Rather, the impeachment proceeding
is initiated or begins, when a verified complaint is
filed and referred to the Committee on Justice
for action. This is the initiating step which triggers
the series of steps that follow. He concludes that
when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official
more than once within a period of one year," it means
that no second verified complaint may be accepted
and referred to the Committee on Justice for action.
28. Therefore, considering that the first impeachment
complaint, was filed by former President Estrada
against Chief Justice Hilario Davide, Jr., along with 7
Associate Justices of the Supreme Court, on June
2, 2003 and referred to the House Committee on
Justice on August 5, 2003, the second
impeachment complaint filed by Representatives
Teodoro, Jr. and Fuentebella against the Chief Justice
on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment
proceedings against the same impeachable
officer within a one-year period.
45. Case Summary
Morales vs. Court of Appeals and Binay (2015)
G.R. Nos. 217126-27 | 2015-11-10
Subject: Resort to the extraordinary remedy of
Certiorari and Prohibition is proper, without need of
prior motion for reconsideration before the Court of
Appeals; Section 14, RA 6770; Second paragraph of
Section 14, RA 6770 is unconstitutional; Court may
decide on constitutional questions affecting jurisdiction
even though not raised in the pleadings; Consequence
of invalidity ( CA has subject matter jurisdiction);
Ombudsman's independence protects it from political
pressure , but not from judicial power; First paragraph
of Section 14, RA 6770 is declared ineffective insoafar
as it encroaches upon the court's inherent power to
issue injunctions; Preventive suspension order; The
condonation doctrine, which is the basis of the CA's
injunctive writs, is abandoned; Abandonment of the
condonation doctrine should be prospective in
application; Objection to propriety of contempt charge
is premature
Facts:
On July 2014, a complaint/affidavit was filed before
the Office of the Ombudsman against Jejomar Erwin
S. Binay, Jr.'s (Binay, Jr.) and other public officers and
employees of the City Government of Makati (Binay,
Jr., et al), accusing them of Plunder and violation of
Republic Act No. 3019,otherwise known as "The Anti-
Graft and Corrupt Practices Act," in connection with
the five (5) phases of the procurement and
construction of the Makati City Hall Parking Building
(Makati Parking Building).
A Special Panel of Investigators was constituted to
conduct a fact-finding investigation. The panel filed a
complaint (OMB Complaint) against Binay, Jr., et al,
charging them with six (6) administrative cases for
Grave Misconduct, Serious Dishonesty, and Conduct
Prejudicial to the Best Interest of the Service, and six
(6) criminal cases for violation of Section 3 (e) of RA
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3019, Malversation of Public Funds, and Falsification
of Public Documents (OMB Cases).
As to Binay, Jr., the OMB Complaint alleged that he
was involved in anomalous activities attending the
procurement and construction phases of the Makati
Parking Building project, committed during his first
(2010-2013) and second/ present term (2013-2016)
as City Mayor of Makati. In particular, Binay, Jr. issued
the Notice of Awards for Phase III, IV and V of the
Makati Parking Building project to Hilmarc's
Construction Corporation and executed the
corresponding contracts without the required
publication and the lack of architectural design, and
approved the release of funds therefor.
Before Binay, Jr., et al.'s filing of their counter-
affidavits, the Ombudsman issued the challenged
order placing Binay, Jr., et al. under preventive
suspension for not more than six (6) months without
pay, during the pendency of the OMB Cases.
Consequently, the Ombudsman directed DILG
Secretary Manuel A. Roxas II to immediately
implement the preventive suspension order against
Binay, Jr., et al., upon receipt of the same.
The Ombudsman ruled that the requisites for the
preventive suspension of a public officer are present,
finding that: (a) the evidence of Binay, Jr., et al.'s
guilt was strong, (b) Binay, Jr., et al.were
administratively charged and said charges, if proven
to be true, warrant removal from public service under
the Revised Rules on Administrative Cases in the Civil
Service (RRACCS), and (c) Binay, Jr., et al.'s
respective positions give them access to public records
and allow them to influence possible witnesses;
hence, their continued stay in office may prejudice the
investigation relative to the OMB Cases filed against
them.
On March 11, 2015, Binay, Jr. filed a petition
for certiorari before the Court of Appeals seeking the
nullification of the preventive suspension order and
praying for the issuance of a temporary restraining
order (TRO). Binay, Jr. argued that any anomalous
activity relating to Phases III to V transpired during
his first term and that his re-election as City Mayor of
Makati for a second term effectively condoned his
administrative liability therefor.
On March 16, 2015, at around 8:24 a.m., DILG
Regional Director Renato Brion caused the
implementation of the preventive suspension order by
posting a copy of the order on the wall of the Makati
City Hall after failing to personally serve the same on
Binay, Jr. as the points of entry to the Makati City Hall
were closed.
At noon of the same day, the CA issued a Resolution
(dated March 16, 2015) granting Binay, Jr.'s prayer for
a TRO notwithstanding Vice Mayor Pena, Jr.'s
assumption of duties as Acting Mayor earlier that day.
Citing the case ofGovernor Garcia, Jr. v. CA, the CA
applied the condonation doctrine espoused by Binay,
Jr.
Binay, Jr. likewise filed a petition for contempt with
the Court of Appeals accusing Secretary Roxas,
Director Brion, et al of deliberately refusing to obey
the CA. The CA directed the Ombudsman to file her
comment thereto.
The Ombudsman, without filing a prior motion for
reconsideration before the Court of Appeals, filed the
present petition for Certiorari and Prohibition before
the Supreme Court claiming that: (a) the CA had no
jurisdiction to grant Binay, Jr.'s prayer for a TRO,
citing Section 14 of RA 6770 or "The Ombudsman Act
of 1989," which states that no injunctive writ could be
issued to delay the Ombudsman's investigation unless
there is prima facie evidence that the subject matter
thereof is outside the latter's jurisdiction and (b) the
Ombudsman is an impeachable officer, and therefore,
cannot be subjected to contempt proceedings
In the meantime, the CA issued a Resolution dated
April 6, 2015 granting Binay, Jr.'s prayer for a writ of
preliminary injunction. The CA found that Binay, Jr. is
entitled to the nullification of the preventive
suspension order, in view of the condonation doctrine,
citing Aguinaldo v. Santos.
Held:
Resort to the extraordinary remedy of Certiorari
and Prohibition is proper, without need of prior
motion for reconsideration before the Court of
Appeals
1. A common requirement to both a petition
for certiorari and a petition for prohibition taken under
Rule 65 of the 1997 Rules of Civil Procedure is that
the petitioner has no other plain, speedy, and
adequate remedy in the ordinary course of law.
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2. As a general rule, a motion for reconsideration must
first be filed with the lower court prior to resorting to
the extraordinary remedy of certiorari or prohibition
since a motion for reconsideration may still be
considered as a plain, speedy, and adequate remedy
in the ordinary course of law. The rationale for the
pre-requisite is to grant an opportunity for the lower
court or agency to correct any actual or perceived
error attributed to it by the re-examination of the legal
and factual circumstances of the case.
3. Nonetheless, certain exceptions were crafted to the
general rule requiring a prior motion for
reconsideration before the filing of a petition
for certiorari, which exceptions also apply to a petition
for prohibition. One of the recognized exceptions is
“where the issue raised is one purely of law or where
public interest is involved.”
4. In the present case, the question on the authority
of the CA to enjoin the implementation of a preventive
suspension order issued by the Office of the
Ombudsman is put to the fore. This case tests the
constitutional and statutory limits of the fundamental
powers of key government institutions and hence,
involves an issue of transcendental public importance.
Also raised is the equally important issue on the
propriety of the continuous application of the
condonation doctrine as invoked by a public officer
who desires exculpation from administrative liability.
As such, the Ombudsman's direct resort
to certiorari and prohibition before this Court,
notwithstanding her failure to move for the prior
reconsideration of the assailed issuances before the
CA, is justified.
Section 14, RA 6770
5. The Ombudsman's argument against the CA's lack
of subject matter jurisdiction over the main petition,
and her corollary prayer for its dismissal, is based on
her interpretation of Section 14, RA 6770, or the
Ombudsman Act, which reads in full
Section 14. Restrictions. - No writ of injunction
shall be issued by any court to delay an investigation
being conducted by the Ombudsman under this Act,
unless there is a prima facie evidence that the subject
matter of the investigation is outside the jurisdiction of
the Office of the Ombudsman.
No court shall hear any appeal or application for
remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure
question of law.
6. The first paragraph of Section 14, RA 6770 is
a prohibition against any court (except the Supreme
Court from issuing a writ of injunction to delay an
investigation being conducted by the Office of the
Ombudsman. Generally speaking, "injunction is a
judicial writ, process or proceeding whereby a party is
ordered to do or refrain from doing a certain act. It
may be the main action or merely a provisional
remedy for and as an incident in the main action."
Considering the textual qualifier "to delay," which
connotes a suspension of an action while the main
case remains pending, the "writ of injunction"
mentioned in this paragraph could only refer to
injunctions of the provisional kind, consistent with the
nature of a provisional injunctive relief.
7. The exception to the no injunction policy is when
there is prima facie evidence that the subject matter
of the investigation is outside the office's
jurisdiction. The Office of the Ombudsman has
disciplinary authority over all elective and appointive
officials of the government and its subdivisions,
instrumentalities, and agencies, with the exception
only of impeachable officers, Members of Congress,
and the Judiciary. Nonetheless, the Ombudsman
retains the power to investigate any serious
misconduct in office allegedly committed by officials
removable by impeachment, for the purpose of filing a
verified complaint for impeachment, if warranted.
Note that the Ombudsman has concurrent jurisdiction
over certain administrative cases which are within the
jurisdiction of the regular courts or administrative
agencies, but has primary jurisdiction to investigate
any act or omission of a public officer or employee
who is under the jurisdiction of the Sandiganbayan.
8. The second paragraph of Section 14, RA
6770 provides that no appeal or application for
remedy may be heard against the decision or findings
of the Ombudsman, with the exception of the
Supreme Court on pure questions of law.
Second paragraph of Section 14, RA 6770 is
unconstitutional
9. The second paragraph of Section 14, RA 6770,
which the Ombudsman particularly relies on in arguing
144
that the CA had no jurisdiction over the main CA
petition, as it is supposedly the Supreme Court which
has the sole jurisdiction to conduct a judicial review of
its decisions or findings, is vague for two (2) reasons:
(a) it is unclear what the phrase "application for
remedy" or the word "findings" refers to; and (b) it
does not specify what procedural remedy is solely
allowable to the Supreme Court, save that the same
be taken only against a pure question of law.
10. As an aid to construction, courts may avail
themselves of the actual proceedings of the legislative
body in interpreting a statute of doubtful meaning. In
case of doubt as to what a provision of a statute
means, the meaning put to the provision during the
legislative deliberations may be adopted, albeit not
controlling in the interpretation of the law.
11. The Ombudsman submits that the legislative
intent behind Section 14, RA 6770, particularly on the
matter of judicial review of her office's decisions or
findings can be gleaned from the Senate deliberations.
The Court is, however, unconvinced that the provision
debated on was Section 14, RA 6770, as the
Ombudsman invokes, but rather Section 27, RA 6770,
as the latter textually reflects the approval of Senator
Angara's suggested amendment, i.e., that the
Ombudsman's decision or finding may be assailed in a
petition for certiorari to the Supreme Court.
12. As a general rule, the second paragraph of Section
14, RA 6770 bans the whole range of remedies
against issuances of the Ombudsman, by prohibiting:
(a) an appeal or (b) "any application of remedy"
against the decision or findings of the Ombudsman. It
crafts an exception, which may be deduced as a Rule
45 appeal, for the reason that it is the only remedy
taken to the Supreme Court on "pure questions of
law". In sum, the appropriate construction of the
second paragraph of Section 14, RA 6770 is that all
remedies against issuances of the Office of the
Ombudsman are prohibited, except the Rule 45
remedy to the Supreme Court on pure questions of
law.
13. The second paragraph of Section 14, RA 6770's
extremely limited restriction on remedies
is inappropriate since a Rule 45 appeal can only be
taken against final decisions or orders of lower courts,
and not against "findings" of quasi-judicial agencies.
14. Congress cannot alter the scope of a Rule 45
appeal so as to apply to interlocutory "findings" issued
by the Ombudsman. More significantly, by confining
the remedy to a Rule 45 appeal, the provision takes
away the remedy of certiorari, grounded on errors of
jurisdiction, in denigration of the judicial power
constitutionally vested in courts.
15. In this light, the second paragraph of Section 14,
RA 6770 also increased the Supreme Court's appellate
jurisdiction, without a showing, however, that (the SC)
gave its consent to the same. Applying the ruling
in Fabian vs Desierto, second paragraph of Section 14,
RA 6770 is unconstitutional and perforce, invalid.
Court may decide on constitutional questions
affecting jurisdiction even though not raised in
the pleadings
16. While courts will not ordinarily pass upon
constitutional questions which are not raised in the
pleadings, the rule has been recognized to admit of
certain exceptions. It does not preclude a court from
inquiring into its own jurisdiction or compel it to enter
a judgment that it lacks jurisdiction to enter. If a
statute on which a court's jurisdiction in a proceeding
depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may
determine whether or not it has jurisdiction, it
necessarily follows that it may inquire into the
constitutionality of the statute.
Consequence of invalidity ( CA has subject matter
jurisdiction)
17. With the unconstitutionality of the second
paragraph of Section 14, RA 6770, the Court,
consistent with existing jurisprudence, concludes that
the CA has subject matter jurisdiction over the main
CA petition (Binay petition seeking the nullification of
the preventive suspension order).
Ombudsman's independence protects it from
political pressure, but not from judicial power
18. Section 5, Article XI of the 1987 Constitution
guarantees the independence of the Office of the
Ombudsman. Under Section 12, Article XI of the 1987
Constitution, the Office of the Ombudsman is
envisioned to be the "protector of the people" against
the inept, abusive, and corrupt in the Government, to
function essentially as a complaints and action bureau.
145
Congress enacted RA No. 6770 to enable it to further
realize the vision of the Constitution. (see Gonzales III
v. Office of the President)
19. The concept of Ombudsman's independence
covers three (3) things:
First: creation by the Constitution, which means that
the office cannot be abolished, nor its constitutionally
specified functions and privileges, be removed,
altered, or modified by law, unless the Constitution
itself allows, or an amendment thereto is made;
Second: fiscal autonomy, which means that the office
"may not be obstructed from [its] freedom to use or
dispose of [its] funds for purposes germane to [its]
functions, hence, its budget cannot be strategically
decreased by officials of the political branches of
government so as to impair said functions; and
Third: insulation from executive supervision and
control, which means that those within the ranks of
the office can only be disciplined by an internal
authority. (see Gonzales III v. Office of the President)
20. All three aspects of independence intend to
protect the Office of the Ombudsman from political
harassment and pressure. That being the case,
the concept of Ombudsman independence cannot be
invoked as basis to insulate the Ombudsman from
judicial power constitutionally vested unto the
courts. Courts are apolitical bodies, which are
ordained to act as impartial tribunals and apply even
justice to all. Hence, the Ombudsman's notion that it
can be exempt from an incident of judicial power -
that is, a provisional writ of injunction against a
preventive suspension order - clearly strays from the
concept's rationale of insulating the office from
political harassment or pressure.
First paragraph of Section 14, RA 6770 is
declared ineffective insoafar as it encroaches
upon the court's inherent power to issue
injunctions
21. The first paragraph of Section 14, RA 6770
prohibits all courts, except the Supreme Court, from
issuing provisional writs of injunction to enjoin an
Ombudsman investigation.
22. A temporary restraining order and a writ of
preliminary injunction both constitute temporary
measures availed of during the pendency of the
action. They are, by nature, ancillary because they are
mere incidents in and are dependent upon the result
of the main action. It is well-settled that the sole
object of a temporary restraining order or a writ of
preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo until the
merits of the case can be heard. They are preservative
remedies for the protection of substantive rights or
interests, and, hence, not a cause of action in itself,
but merely adjunct to a main suit.
23. The power of a court to issue these provisional
injunctive reliefs coincides with its inherent power to
issue all auxiliary writs, processes, and other means
necessary to carry its acquired jurisdiction into
effect. (see Section 6, Rule 135 of the Rules of Court)
24. A court, once having obtained jurisdiction of a
cause of action, has, as an incidental to its
constitutional grant of power, inherent power to do all
things reasonably necessary to the administration of
justice in the case before it. In the exercise of this
power, a court, when necessary in order to protect or
preserve the subject matter of the litigation, to protect
its jurisdiction and to make its judgment
effective, may grant or issue a temporary injunction in
aid of or ancillary to the principal action.
25. The control over this inherent judicial power (i.e.
issuance of provisional injunction) is exclusively within
the constitutional realm of the courts. As such, it
is not within the purview of the legislature to grant or
deny the power nor is it within the purview of the
legislature to shape or fashion circumstances under
which this inherently judicial power may be or may
not be granted or denied.
26. The Court rules that when Congress passed the
first paragraph of Section 14, RA 6770 and, in so
doing, took away from the courts their power to issue
a TRO and/or WPI to enjoin an investigation
conducted by the Ombudsman, it encroached upon
this Court's constitutional rule-making authority.
Clearly, these issuances, which are, by nature,
provisional reliefs and auxiliary writs created under the
provisions of the Rules of Court, are matters of
procedure which belong exclusively within the
province of this Court.
27. The first paragraph of Section 14, RA 6770 is not a
jurisdiction-vesting provision, as the Ombudsman
146
misconceives, because it does not define, prescribe,
and apportion the subject matter jurisdiction of courts
to act on certiorari cases; the certiorari jurisdiction of
courts, particularly the CA, stands under the relevant
sections of BP 129 which were not shown to have
been repealed. Instead, through this
provision, Congress interfered with a provisional
remedy that was created by this Court under its duly
promulgated rules of procedure, which utility is both
integral and inherent to every court's exercise of
judicial power. Without the Court's consent to the
proscription, as may be manifested by an adoption of
the same as part of the rules of procedure through an
administrative circular issued therefor, there thus,
stands to be a violation of the separation of powers
principle.
28. Thus, pending deliberation on whether or not to
adopt the same, the Court, under its sole prerogative
and authority over all matters of procedure, deems it
proper to declare as ineffective the prohibition against
courts other than the Supreme Court from issuing
provisional injunctive writs to enjoin investigations
conducted by the Office of the Ombudsman, until it is
adopted as part of the rules of procedure through an
administrative circular duly issued therefor.
29. Consequently, it remains that the CA had the
authority to issue the questioned injunctive writs
enjoining the implementation of the preventive
suspension order against Binay, Jr. At the risk of
belaboring the point, these issuances were merely
ancillary to the exercise of the
CA's certiorari jurisdiction conferred to it under Section
9 (1), Chapter I of BP 129, as amended, and which it
had already acquired over the main case (i.e., Binay
petition to nullify preventive suspension order).
Preventive suspension order
30. By nature, a preventive suspension order is not a
penalty but only a preventive measure. Its purpose is
to prevent the official to be suspended from using his
position and the powers and prerogatives of his office
to influence potential witnesses or tamper with
records which may be vital in the prosecution of the
case against him. If after such investigation, the
charge is established and the person investigated is
found guilty of acts warranting his suspension or
removal, then he is suspended, removed or dismissed.
This is the penalty. (see Quimbo v. Acting
Ombudsman Gervacio; Section 24 of Rule XIV of the
Omnibus Rules Implementing Book V of the
Administrative Code of 1987 (Executive Order No.
292) and other Pertinent Civil Service Laws)
31. Not being a penalty, the period within which one is
under preventive suspension is not considered part of
the actual penalty of suspension. (Section 25 of Rule
XIV of the Omnibus Rules)
32. Section 24, RA 6770 sets forth two (2)
conditions that must be satisfied to justify the
issuance of an order of preventive suspension pending
an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with
the first requirement:
(a) The charge involves dishonesty, oppression or
grave misconduct or neglect in the performance of
duty;
(b) The charge would warrant removal from the
service; or
(c) The respondent's continued stay in office may
prejudice the case filed against him.
The condonation doctrine, which is the basis of
the CA's injunctive writs, is abandoned
33. The CA held that Binay, Jr. has an ostensible right
to the final relief prayed for, i.e., the nullification of
the preventive suspension order, finding that the
Ombudsman can hardly impose preventive suspension
against Binay, Jr. given that his re-election in 2013 as
City Mayor of Makati condoned any administrative
liability arising from anomalous activities relative to
the Makati Parking Building project from 2007 to 2013
34. The condonation doctrine - which connotes this
same sense of complete extinguishment of liability as
will be herein elaborated upon - is not based on
statutory law. It is a jurisprudential creation that
originated from the1959 case of Pascual v. Hon.
Provincial Board ofNueva Ecija, which was decided
under the 1935 Constitution. As there was no legal
precedent on the issue at that time, the Court,
in Pascual, resorted to American authorities and
proceeded to declare that: “The weight of authorities
x x x seems to incline toward the rule denying the
right to remove one from office because of
misconduct during a prior term”
147

35. The conclusion is at once problematic since this
Court has now uncovered that there is really no
established weight of authority in the United States
(US) favoring the doctrine of condonation. In fact, at
least seventeen (17) states in the US have abandoned
the condonation doctrine.
36. While the condonation doctrine, as espoused
in Pascual, has been carried over in numerous cases
after, the doctrine of stare decisis does not preclude
this Court from revisiting existing doctrine when there
are powerful countervailing considerations against its
application.
37. Pascual was a decision promulgated in 1959.
Therefore, it was decided within the context of the
1935 Constitution which was silent with respect to
public accountability, or of the nature of public office
being a public trust. With the advent of the 1973
Constitution, it introduced an entire article on
accountability of public officers, found in Article XIII.
Significantly, the 1987 Constitution strengthened and
solidified what has been first proclaimed in the 1973
Constitution by commanding public officers to be
accountable to the people at all times. (see Section 1,
Article XI of the 1987 Constitution)
38. For local elective officials like Binay, Jr., the
grounds to discipline, suspend or remove an elective
local official from office are stated in Section 60 of
Republic Act No. 7160, otherwise known as the "Local
Government Code of 1991" (LGC). Section 66 (b) of
the LGC states that the penalty of suspension shall not
exceed the unexpired term of the elective local official
nor constitute a bar to his candidacy for as long as he
meets the qualifications required for the office. Note,
however, that the provision only pertains to the
duration of the penalty and its effect on the official's
candidacy. Nothing therein states that the
administrative liability therefor is extinguished by the
fact of re-election. At best, Section 66 (b) of the LGC
prohibits the enforcement of the penalty of suspension
beyond the unexpired portion of the elective local
official's prior term, and likewise allows said official to
still run for re-election
39. The concept of public office is a public trust and
the corollary requirement of accountability to the
people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that
an elective local official's administrative liability for a
misconduct committed during a prior term can be
wiped off by the fact that he was elected to a second
term of office, or even another elective post. Election
is not a mode of condoning an administrative
offense, and there is simply no constitutional or
statutory basis in our jurisdiction to support the notion
that an official elected for a different term is fully
absolved of any administrative liability arising from an
offense done during a prior term. In this
jurisdiction, liability arising from administrative
offenses may be condoned bv the President in light of
Section 19, Article VII of the 1987 Constitution which
was interpreted inLlamas v. Orbos to apply to
administrative offenses.
40. Equally infirm is Pascual's proposition that the
electorate, when re-electing a local official, are
assumed to have done so with knowledge of his life
and character, and that they disregarded or forgave
his faults or misconduct, if he had been guilty of any.
Suffice it to state that no such presumption exists in
any statute or procedural rule.Besides, it is contrary to
human experience that the electorate would have full
knowledge of a public official's misdeeds. Misconduct
committed by an elective official is easily covered up,
and is almost always unknown to the electorate when
they cast their votes. At a conceptual level,
condonation presupposes that the condoner has
actual knowledge of what is to be condoned. Thus,
there could be no condonation of an act that is
unknown.
41. This Court simply finds no legal authority to
sustain the condonation doctrine in this jurisdiction. As
can be seen from this discourse, it was a doctrine
adopted from one class of US rulings way back in
1959 and thus, out of touch from - and now rendered
obsolete by - the current legal regime. In
consequence, it is high time for this Court to abandon
the condonation doctrine that originated from Pascual.
Abandonment of the condonation doctrine
should be prospective in application
42. It should be clarified that this Court's
abandonment of the condonation doctrine should
be prospective in application for the reason that
judicial decisions applying or interpreting the laws or
the Constitution, until reversed, shall form part of the
legal system of the Philippines.Hence, while the future
may ultimately uncover a doctrine's error, it should be,
148
as a general rule, recognized as "good law" prior to its
abandonment. Consequently, the new doctrine should
be applied prospectively, and should not apply to
parties who had relied on the old doctrine and acted
on the faith thereof.(see People v. Jabinal)
43. Pursuant to Article 8 of the Civil Code "judicial
decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of
the Philippines." But while the [Supreme Court's]
decisions form part of the law of the land, they are
also subject to Article 4 of the Civil Code which
provides that "laws shall have no retroactive effect
unless the contrary is provided.
44. The CA's resolutions directing the issuance of the
assailed injunctive writs were all hinged on cases
enunciating the condonation doctrine. Hence, by
merely following settled precedents on the
condonation doctrine, which at that time, unwittingly
remained "good law," it cannot be concluded that the
CA committed a grave abuse of discretion based on its
legal attribution. Accordingly, the writ of preliminary
injunction against the Ombudsman's preventive
suspension order was correctly issued.
Objection to propriety of contempt charge is
premature
45. On the issue of whether the CA's Resolution
directing the Ombudsman to comment on Binay, Jr.'s
petition for contempt is improper, the sole premise of
the Ombudsman's contention is that, as an
impeachable officer, she cannot be the subject of a
charge for indirect contempt because this action is
criminal in nature and the penalty therefor would
result in her effective removal from office.
46. However, a reading of the aforesaid CA Resolution
does not show that she has already been subjected to
contempt proceeding. The Ombudsman is merely
being directed to comment on the contempt petition.
Thus, absent any indication that the contempt petition
has been given due course by the CA, it would then
be premature for this Court to rule on the issue.
46. Case Summary
Office of the Ombudsman vs CSC (2005)
G.R. No. 159940 | 2005-02-16
Subject: Inok ruling not a precedent; Career Service;
Positions in the Career Executive Service refer to
positions by appointment of the President (Graft
Investigation Officer III is appointed by the
Ombudsman, hence, CES eligibility not required);
Authority of CSC to approve appointments in the civil
service is limited to determining whether or not the
appointees possess the legal qualifications and the
appropriate eligibility
Facts:
In 1994, in a letter addressed to then Ombudsman
Conrado Vasquez, the Civil Service Commission (CSC)
approved the Qualification Standards for several
positions in the Office of the Ombudsman (petitioner)
including that for Graft Investigation Officer III.
In 1996, the Career Executive Service Board (CESB)
subsequently advised the Ombudsman that pursuant
to CSC Memorandum Circular No. 21, s.1994, the
position of Graft Investigation Officer III, among other
positions in petitioner's office, was classified as a
Career Executive Service (CES) position, hence,
governed by the rules of the CES pertaining to
eligibility, appointment to CES ranks, and performance
evaluation, among other things.
In 1999, the members of the Constitutional Fiscal
Autonomy Group (CFAG), namely: the Commission on
Elections (COMELEC), CSC, Commission on Audit
(COA), Commission on Human Rights (CHR), Office of
the Ombudsman and the Supreme Court adopted
Joint Resolution No. 62, where it was resolved that “all
career third level positions identified and classified by
each of the member agency are not embraced within
the Career Executive Service (CES) and as such shall
not require Career Service Executive Eligibility (CSEE)
or Career Executive Service (CES) Eligibility for
purposes of permanent appointment”
In 2002, Melchor Arthur H. Carandang, Paul Elmer M.
Clemente and Jose Tereso U. de Jesus, Jr. were
appointed Graft Investigation Officers III of petitioner
by the Ombudsman. The CSC approved the
appointments on the condition that for the appointees
to acquire security of tenure, they must obtain CES or
Civil Service Executive (CSE) eligibility which is
governed by the CESB.
In a letter to the CSC, the Ombudsman requested for
the change of status, from temporary to permanent,
of the appointments of Carandang, Clemente and De
Jesus effective December 18, 2002. The Ombudsman
149
invoked the Court of Appeals ruling in Khem N. Inok v.
Hon. Corazon Alma de Leon, as affirmed by the
Supreme Court, which declared that the Career
Executive Service (CES) is limited to CES positions in
the Executive Branch of Government, and that the
Judiciary, the Constitutional Commissions, the Office
of the Ombudsman and the Commission on Human
Rights are not covered by the CES governed by the
Career Executive Service Board. Said Decision thereby
effectively granted the petition of Mr. Inok for security
of tenure as Director II of the Commission on Audit
despite the absence of a CES eligibility.
Carandang and Clemente were in the meantime
conferred with CSE Eligibility. The CSC, by the
challenged Resolution of August 28, 2003, changed
the status of Carandang’s and Clemente’s
appointments to permanent effective June 6, 2003,
but not with respect to De Jesus on the ground that
he “has not met the eligibility requirements.”
Hence, the present petition where it is contended by
petitioner that
(a) the general power of respondent Civil Service
Commission (CSC) to administer the civil service
cannot constitutionally curtail the specific discretionary
power of appointment, including the grant of security
of tenure, by the Ombudsman as an independent
constitutional body in favor of the latter’s own
officials.
(b) the CES Eligibility, as administered by the
respondent CESB, cannot be validly made a requisite
for the attainment of security of tenure on qualified
career officials of petitioner who are not legally part of
the CES.
(c) officials which are appointed by the Ombudsman
are technically classified as belonging to the Closed
Career Service, the positions being unique and highly
technical as they involve investigatorial, quasi-judicial
and prosecutorial functions, in much the same way as
judges are involved in judicial functions. Hence,
appointment to such positions is likewise characterized
by security of tenure.
Held:
Inok ruling not a precedent
1. Inok cannot be invoked as precedent in arriving at
the question raised in this petition. This Court
dismissed the petition of the CSC in the Inok case on
a technicality – therein petitioner CSC’s failure to file a
reply within the required period – and not on the
merits.
Career service
2. Book V, Title I, Subtitle A of the Administrative
Code of 1987 provides:
SECTION 7. Career Service. – The Career Service
shall be characterized by (1) entrance based on merit
and fitness to be determined as far as practicable by
competitive examination, or based on highly technical
qualifications; (2) opportunity for advancement to
higher career positions; and (3) security of tenure.
The Career Service shall include:
(1) Open Career positions for appointment to which
prior qualification in an appropriate examination is
required;
(2) Closed Career positions which are scientific, or
highly technical in nature; these include the faculty
and academic staff of state colleges and universities,
and scientific and technical positions in scientific or
research institutions which shall establish and
maintain their own merit systems;
(3) Positions in the Career Executive Service
(CES); namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent
rank as may be identified by the Career Executive
Service Board, all of whom are appointed by the
President;
Positions in the Career Executive Service refer
to positions by appointment of the President
(Graft Investigation Officer III is appointed by
the Ombudsman, hence, CES eligibility not
required)
3. From the above-quoted provision of the
Administrative Code, persons occupying positions in
the Career Executive Service (CES) are presidential
appointees. A person occupying the position of Graft
150
Investigation Officer III is not, however, appointed by
the President but by the Ombudsman as provided in
Section 6, Article IX of the Constitution.
4. To classify the position of Graft Investigation
Officer III as belonging to the CES and require an
appointee thereto to acquire CES or CSE eligibility
before acquiring security of tenure would be absurd as
it would result either in 1) vesting the appointing
power for said position in the President, in violation of
the Constitution; or 2) including in the CES a position
not occupied by a presidential appointee, contrary to
the Administrative Code.
Authority of CSC to approve appointments in
the civil service is limited to determining
whether or not the appointees possess the legal
qualifications and the appropriate eligibility
5. Under P.D. No 807, Sec. 9(h) which authorizes the
CSC to approve appointments to positions in the civil
service, except those specified therein, its authority is
limited “only to [determine] whether or not the
appointees possess the legal qualifications and the
appropriate eligibility, nothing else.
6. It is not disputed that, except for his lack of CES or
CSE eligibility, De Jesus possesses the basic
qualifications of a Graft Investigation Officer III, as
provided in the Qualification Standards. Such being
the case, the CSC has the ministerial duty to grant the
request of the Ombudsman that appointment be made
permanent effective December 18, 2002. To refuse to
heed the request is a clear encroachment on the
discretion vested solely on the Ombudsman as
appointing authority. The status of the appointments
of Carandang and Clemente, who were conferred CSE
eligibility pursuant to CSC Resolution No. 03-0665
dated June 6, 2003, should be changed to permanent
effective December 18, 2002 too.
7. Third level eligibility is not required for third level
officials of petitioner appointed by the Ombudsman in
light of the provisions of the Constitution vis-a-vis the
Administrative Code of 1987
Case Summary
47. Camanag vs. Guerrero (1997)
G.R. No. 121017 | 1997-02-17
Subject: Grant of prosecutorial powers to the
Ombudsman under RA 6770 is valid; Office of the
Ombudsman is a distinct constitutional body whose
duties and functions are provided for by the
Constitution itself; Congress may remove some of the
powers of the Office of the Special Prosecutor
(formerly Tanodbayan) and transfer the same to the
Ombudsman; Investigating prosecutor has discretion
in the determination of what constitute sufficient
evidence to establish "probable cause" for filing an
information; An injunction will not generally lie to
restrain a criminal action
Facts:
In 1993, the Professional Regulations Commission
(PRC) issued the Table of Results of those who failed
the May, 1993 Certified Public Accountant (CPA)
Licensure Examinations. Petitioner Olivia B. Camanag
was listed as having failed with a general average of
50.00%
However, petitioner, in accomplishing her Personal
Data sheet (CSC form No. 212) as employee of the
Bureau of Internal Revenue (BIR), indicated under
question No. 18 that she passed the May, 1993 Board
Examinations with a rating of 75.42%
An anonymous letter was sent to PRC Chairman Pobre
claiming that “certain BIR employees allegedly passed
the CPA Licensure Exams under anomalous
circumstances"
PRC Chairman Pobre wrote Ombudsman Vasquez that
BIR employees Marilyn Lee, Connie Dimapilis, Eilene
Purification, Elenita Villamor, Lodiminda Crizaldo,
Maria Rosario de los Reyes, and petitioner Olivia
Camanag did not actually pass the CPA licensure
examinations.
Associate Ombudsman Investigator (AOI) Bumanlag
conducted a fact-finding investigation, and thereafter
filed a Report finding probable cause against
petitioner for violation of Article 171(4) of the Revised
Penal Code. AOI Bumanglag recommended a
preliminary investigation to be conducted on the case,
and at the same time, he executed under oath the
corresponding affidavit-complaint against petitioner.
Ombudsman Investigator (OI) Almazan directed
petitioner to submit her counter-affidavit. Thereafter,
OI Almazan issued a Resolution, finding probable
151
cause against petitioner for the crimes of falsification
of public documents.
Deputy Ombudsman for the Armed Forces of the
Philippines (AFP) Casaclang deputized respondent City
Prosecutor of Manila Jesus Guerrero to file the
corresponding charges against petitioner and to
handle the prosecution of the cases.
The Office of the City Prosecutor of Manila set it for
another round of preliminary investigation after which
City Prosecutor Guerrero issued the questioned
Resolution, " finding sufficient ground to hold
petitioner for trial" and ordering the filing of the
Information in court.
Three (3) Informations for falsification of public
documents were filed against petitioner. Petitioner
filed the instant petition assailing the constitutionality
of the Ombudsman Act (R.A. No. 6770), on several
grounds:
(a) Sections 15 and 17, RA 6770, insofar as they
empowers the Office of the Ombudsman to conduct
preliminary investigation and to directly undertake
criminal prosecutions , are without constitutional
basis. Concomitantly, the Ombudsman does not
possess the power to conduct formal preliminary
investigation proceedings for the reason that formal
preliminary investigation proceedings constitute an
integral part of the process of criminal prosecutions.
(b) The Office of the Ombudsman is a constitutional
body, belonging neither to the legislative, executive
nor judiciary branches. As such, it is not empowered
to conduct preliminary investigations, as these pertain
exclusively to the executive branch.
(c) The unqualified grant of prosecutorial powers on
the Office of the Ombudsman is in direct
contravention of Article XI, Section 7 of the 1987
Constitution which provides:
Sec. 7. The existing Tanodbayan shall hereafter be
known as the office of the Special Prosecutor. It shall
continue to function and exercise its power as now or
hereafter may be provided by law, except those
conferred on the office of the Ombudsman created
under this Constitution.
Held:
Grant of prosecutorial powers to the
Ombudsman under RA 6770 is valid
1. In assailing Sections 15 and 17 of the Ombudsman
Act, insofar as it empowers the Ombudsman to
directly undertake criminal prosecutions, for being
without constitutional basis, petitioner submits that
under the 1987 Philippine Constitution, specifically
in Section 13, Article XI, entitled "Accountability of
Public Officers", the powers of the Ombudsman are
clearly defined or delineated, to wit
2. Sec. 13. The Office of the Ombudsman shall have
the following powers, functions and duties:
(1) Investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or
inefficient.
xxx
(3) Direct the officer concerned to take appropriate
action against a public official or employee at fault,
and recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure compliance
therewith
3. Petitioner argues that while Sec 13 par (1)
empowers the Ombudsman to conduct investigations,
the power to directly undertake criminal prosecutions
has been clearly withheld. Sec 13 par (3) merely
empowers the Office of the Ombudsman "to direct the
officer concerned to take appropriate action and
recommend prosecution". Hence, petitioner contends
that the power of the Ombudsman is limited to the
mere issuance of the directives to the appropriate
officer, i.e., the Prosecutor, to cause the filing of the
information and the prosecution thereof.
4. In Acop v. Office of the Ombudsman, the court
upheld the validity of the grant of prosecutorial
powers on the Ombudsman, notwithstanding the
intent of the framers of the 1987 Constitution to
withhold such powers from him. Notably,
Constitutional Commission recommended that the
Legislature could, through statute, prescribe such
other powers, functions and duties to the
Ombudsman. This is now embodied in paragraph 8,
Section 13, Article XI , 1987 Constitution.
152

5. The Ombudsman, under par 8, Section 13, Article
XI, 1987 Constitution, may be validly empowered with
prosecutorial functions by the legislature, and this the
latter did when it passed R.A. No. 6670, which gave
the Ombudsman, among others, the power to
investigate and prosecute individuals on matters
and/or complaints referred or filed before it.
Office of the Ombudsman is a distinct
constitutional body whose duties and functions
are provided for by the Constitution itself
6. Petitioner contends that the Office of the
Ombudsman, being a constitutional body, cannot
exercise executive functions, such as conducting
preliminary investigation in criminal cases. The
contention is devoid of merit. TheOffice of the
Ombudsman is a distinct constitutional body whose
duties and functions are provided for by the
Constitution itself. Considering that the power of the
Ombudsman to investigate and prosecute criminal
cases emanates as it does from the Constitution itself,
particularly, under paragraph 8, Section 13, Article XI ,
which empowers the Ombudsman to "exercise such
other powers or perform such other functions or
duties" as Congress may prescribe through legislation,
it cannot be logically argued that such power or the
exercise thereof is unconstitutional or violative of the
principle of separation of powers enshrined in the
Constitution.
Congress may remove some of the powers of
the Office of the Special Prosecutor (formerly
Tanodbayan) and transfer the same to the
Ombudsman
7. Petitioner contends that R.A. No. 6770, insofar as
it unqualifiedly vests prosecutorial functions on the
Ombudsman, infringes on Section 7, Article XI of the
Constitution, in that it invariably diminishes the
authority and power lodged in the Office of the Special
Prosecutor.
8. When one considers that by express mandate of
paragraph 8, Section 13, Article XI of the Constitution,
the Ombudsman may "exercise such other powers or
perform functions or duties as may be provided by
law," it is indubitable then that Congress has the
power to place the Office of the Special Prosecutor
under the Office of the Ombudsman. In the same
vein, Congress may remove some of the powers
granted to the Tanodbayan by P.D. No. 1630 and
transfer them to the Ombudsman; or grant the Office
of the Special Prosecutor such other powers and
functions and duties as Congress may deem fit and
wise. This Congress did through the passage of R.A.
No. 6770(see Acop v. Office of the Ombudsman)
Investigating prosecutor has discretion in the
determination of what constitute sufficient
evidence to establish "probable cause" for filing
an information
9. Petitioner alleges that the refusal by the City
Prosecutor and Assistant City Prosecutor to conduct
another preliminary investigation of the anonymous
complaint filed against petitioner is tantamount to a
denial of due process.
10. Petitioner does not deny that the Ombudsman
actually conducted a preliminary investigation of the
charges against her. Another round of preliminary
investigation, apart from the one conducted by the
Office of the Ombudsman, was also conducted by the
Office of the City Prosecutor of Manila. Petitioner had
likewise filed her comment on the cases against her
then pending with the City Prosecutor. The PRC also
submitted evidence against petitioner in the same
proceedings. Finally, a memo of preliminary
investigation conducted by the City Prosecutor was
attached to the Informations eventually filed against
petitioner before the Ombudsman. These pieces of
evidence clearly indicate that a second round of
preliminary investigation was in fact conducted by the
City Prosecutor.
11. Neither is the alleged inherent weakness of
complainant's case, a ground to compel the City
Prosecutor to conduct another preliminary
investigation, apart from the one already conducted
and the one conducted earlier by the Ombudsman. On
this score, suffice it to state that this Court has
adopted a policy of non-interference in the conduct of
preliminary investigations; and leaves to the
investigating prosecutor sufficient latitude of discretion
in the exercise of determination of what constitute
sufficient evidence as will establish "probable cause"
for filing of information against a supposed offender.
12. The rule on non-interference is “based not only
upon the investigatory and prosecutory powers
granted by the Constitution to the Office of the
Ombudsman but upon practicality as well. Otherwise,
153
the functions of the courts will be grievously
hampered by innumerable petitions assailing the
dismissal of investigatory proceedings conducted by
the Office of the Ombudsman with regard to
complaints filed before it, in much the same way that
the courts would be extremely swamped if they could
be compelled to review the exercise of discretion on
the part of the prosecuting attorneys each time they
decide to file an information in court or dismiss a
complaint by a private complainant." (see Cruz, Jr. v.
People)
An injunction will not generally lie to restrain a
criminal action
13. Petitioner contends that the Informations filed
before the sala of respondent judge, allegedly without
the benefit of a preliminary investigation conducted by
City Prosecutor, are characterized by such fatal
defects that would warrant a writ of prohibition to
enjoin respondent judge from taking any further
action thereon. Petitioner's prayer for injunction to
restrain the criminal action against her is not legally
permissible.
14. An injunction will not generally lie to restrain a
criminal action. In Brocka v. Enriel , the court laid the
following exceptions to the rule (1) when the
injunction is necessary to afford adequate protection
to the constitutional rights of the accused; (2) when it
is necessary for the orderly administration of justice or
to avoid oppression or multiplicity of actions; (3) when
there is a prejudicial question which is subjudice; (4)
when the acts of the officer are without or in excess of
authority; (5) where the prosecution is under an
invalid law, ordinance or regulation; (6) when double
jeopardy is clearly apparent; (7) where the Court has
no jurisdiction over the offense; (8) where it is a case
of persecution rather than prosecution; (9) where the
charges are manifestly false and motivated by the lust
for vengeance; and (10) when there is clearly no
prima facie case against the accused and a motion to
quash on that ground has been denied.
15. Petitioner has not shown that her case falls within
any of the recognized exceptions.
48. Case Summary
Gonzales III vs. Office of the President (2014)
G.R. No. 196231 and G.R. No. 196232 | 2014-01-28
Subject:
Independence of the Ombudsman; Disciplinary
jurisdiction of the President; Removal of Non-
Impeachable Officers
Facts:
Gonzales Petition (G.R. No. 196231)
Manila Police District Senior Inspector Rolando
Mendoza, together with four others, (Mendoza group)
was the subject of an administrative charge for grave
misconduct filed before the National Police
Commission (NAPOLCOM).
Emilio Gonzales, Deputy Ombudsman for Military and
Other Law Enforcement Officers (MOLEO) took over
the case.
The Ombudsman Merceditas Gutierrez approved
Gonzales’ drafted decision finding the Mendoza group
guilty of grave misconduct and imposing on them the
penalty of dismissal from the service. The Mendoza
group filed a motion for reconsideration.
On August 23, 2010, pending final action by the
Ombudsman on the Mendoza case, Mendoza hijacked
a tourist bus and held the passengers as hostages.
The incident resulted in the deaths of Mendoza and
several others on board the hijacked bus.
President Aquino directed the conduct of a joint
investigation of the incident. The joint committee
(IIRC) found Ombudsman Gutierrez and Gonzales
accountable, in particular, the unjustified delay in the
resolution of Mendoza's motion for reconsideration
spanning nine months precipitated the desperate
resort to hostage-taking.
Gonzales was formally charged before the Office of
the President (OP) for Gross Neglect of Duty and/or
Inefficiency in the Performance of Official Duty and for
Misconduct in Office. The OP found Gonzales guilty as
charged and dismissed him from the service.
Gonzales contends that the OP has no administrative
disciplinary jurisdiction over a Deputy Ombudsman.
Under Section 21 of RA No. 6770, it is the
Ombudsman who exercises administrative disciplinary
jurisdiction over the Deputy Ombudsman.
Sulit Petition (G.R. No. 196232)
154

In 2005, The Office of the Ombudsman charged Major
General Carlos F. Garcia and several others before the
Sandiganbayan with plunder and money laundering.
In 2010, the Office of the Ombudsman, through Sulit
and her prosecutorial staff, entered into a plea
bargaining agreement with Garcia whereby he would
be allowed to plead guilty to lesser offenses in
exchange for surrendering the assets he was charged
to have illegally taken.
Although the Sandiganbayan approved the
Agreement, the public outrage it engendered
prompted the House of Representatives to conduct an
investigation. The House Committee found that Sulit
and her deputies committed culpable violations of the
Constitution and betrayal of public trust -- grounds for
removal under Section 8(2) of RA No. 6770 -- and
recommended to the President the dismissal from the
service of Sulit.
The OP initiated an administrative disciplinary
proceeding against Sulit. Sulit questioned the OP 's
jurisdiction. Nevertheless, the OP set the case for
preliminary investigation, prompting Sulit to seek relief
from the Supreme Court
The SC Ruling subject of the MR
The Gonzales and Sulit petition both challenged the
constitutionality of Section 8(2) of Republic Act (RA)
No. 6770. In its September 4, 2012 Decision, the SC
upheld the constitutionality of Section 8(2) of RA No.
6770 and ruled that the President has disciplinary
jurisdiction over a Deputy Ombudsman and a Special
Prosecutor. However, the SC reversed the decision of
the OP and ordered the reinstatement of Gonzales.
Hence, the OP filed the present motion for
reconsideration.
Held:
Section 8(2) of RA No. 6770 is unconstitutional with
respect to the Office of the Ombudsman but
constitutional as to the Office of the Special
Prosecutor as the latter does not enjoy independence
under the Constitution.
Political Question
1. The issue of whether a Deputy Ombudsman
(Gonzales) may be subjected to the administrative
disciplinary jurisdiction of the President (concurrently
with that of the Ombudsman) is a justiciable - not a
political - question.
2. A justiciable question is one which is inherently
susceptible of being decided on grounds recognized by
law, as where the court finds that there are
constitutionally-imposed limits on the exercise of the
powers conferred on a political branch of the
government.
3. In resolving the petitions, we do not inquire into the
wisdom of the Congress' choice to grant concurrent
disciplinary authority to the President. Our inquiry is
limited to whether such statutory grant violates the
Constitution, particularly whether Section 8(2) of RA
No. 6770 violates the core constitutional principle of
the independence of the Office of the Ombudsman as
expressed in Section 5, Art. XI of the Constitution.
Independence of constitutional bodies vs the
Ombudsman's independence
4. The independence enjoyed by the Office of the
Ombudsman and by the Constitutional Commissions
shares certain characteristics - they do not owe their
existence to any act of Congress, but are created by
the Constitution itself; additionally, they all enjoy fiscal
autonomy.
5. The Constitutional Commissions (CSC, COMELEC,
COA), which have been characterized under the
Constitution as "independent," are not under the
control of the President, even if they discharge
functions that are executive in nature. The kind
of independence enjoyed by the Office of the
Ombudsman certainly cannot be inferior - but is
similar in degree and kind - to the independence
similarly guaranteed by the Constitution to the
Constitutional Commissions since all these offices fill
the political interstices of a republican democracy that
are crucial to its existence and proper functioning
Section 8(2) of RA No. 6770 is unconstitutional
6. Section 8(2) of RA No. 6770 vesting disciplinary
authority in the President over the Deputy
Ombudsman violates the independence of the Office
of the Ombudsman and is thus unconstitutional.
7. Subjecting the Deputy Ombudsman to discipline
155
and removal by the President, whose own alter egos
and officials in the Executive Department are subject
to the Ombudsman's disciplinary authority, cannot but
seriously place at risk the independence of the Office
of the Ombudsman itself.
8. The Office of the Ombudsman, by express
constitutional mandate, includes its key officials, all of
them tasked to support the Ombudsman in carrying
out her mandate. What is true for the
Ombudsman must be equally and necessarily
true for her Deputies who act as agents of the
Ombudsman in the performance of their
duties. The Ombudsman can hardly be expected to
place her complete trust in her subordinate officials
who are not as independent as she is, if only because
they are subject to pressures and controls external to
her Office. For these reasons, Section 8(2) of RA
No. 6770 (providing that the President may
remove a Deputy Ombudsman) should be
declared void.
9. The Executive power to remove and discipline key
officials of the Office of the Ombudsman, or to
exercise any power over them, would result in an
absurd situation wherein the Office of the
Ombudsman is given the duty to adjudicate on the
integrity and competence of the very persons who can
remove or suspend its members.
10. That a judicial remedy is available and that the
President's power of removal is limited to specified
grounds are dismally inadequate when balanced with
the constitutional principle of independence. The
mere filing of an administrative case against
the Deputy Ombudsman and the Special
Prosecutor before the OP can already result in
their suspension and can interrupt the
performance of their functions, in violation of
Section 12, Article XI of the Constitution.
The mutual-protection argument for crafting
Section 8(2)of RA No. 6770
11. In crafting Section 8(2) of RA No. 6770, Congress
apparently addressed the concern that a lack of an
external check against the Deputy Ombudsman would
result in mutual protection between the Ombudsman
and her Deputies.
12. This concern stands on shaky grounds since it
ignores the existing checks and balances already in
place. On the one hand, the Ombudsman's Deputies
cannot protect the Ombudsman because she is
subject to the impeachment power of Congress. On
the other hand, the Ombudsman's attempt to cover
up the misdeeds of her Deputies can be questioned
before the Court on appeal or certiorari. The same
attempt can likewise subject her to impeachment.
13. The judicial recourse available is consistent with
the nature of the Supreme Court as a non-political
independent body mandated by the Constitution to
settle judicial and quasi-judicial disputes, whose
judges and employees are not subject to the
disciplinary authority of the Ombudsman and whose
neutrality would be less questionable. The Members of
the Court themselves may be subjected to the
impeachment power of Congress.
Congress’ Power of Removal of Non-
Impeachable Officers
14. Under Section 2, Article XI of the 1987
Constitution, Congress is empowered to determine the
modes of removal from office of all public officers and
employees except the President, the Vice-President,
the Members of the Supreme Court, the Members of
the Constitutional Commissions, and the Ombudsman,
who are all impeachable officials.
15. While the manner and cause of removal are left to
congressional determination, this must still be
consistent with constitutional guarantees and
principles. The congressional determination of the
identity of the disciplinary authority is not a blanket
authority for Congress to repose it on whomsoever
Congress chooses without running afoul of the
independence enjoyed by the Office of the
Ombudsman and without disrupting the delicate check
and balance mechanism under the Constitution.
The OP Decision – Dismissal of Deputy
Ombudsman Gonzales for Gross Negligence and
Grave Misconduct
16. The OP's decision found Gonzales guilty of Gross
Neglect of Duty and of Grave Misconduct.
17. Gross negligence refers to negligence
characterized by the want of even the slightest care,
acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to
156
consequences insofar as other persons may be
affected. In the case of public officials, there is gross
negligence when a breach of duty is flagrant and
palpable
18. Gonzales cannot be guilty of gross neglect of duty
and/or inefficiency since he acted on the case
forwarded to him within nine days. In finding Gonzales
guilty, the OP relied on Section 8, Rule III of
Administrative Order No. 7 in ruling that Gonzales
should have acted on Mendoza's Motion for
Reconsideration within five days. Even if we consider
this provision to be mandatory, the period it requires
cannot apply to Gonzales since he is a Deputy
Ombudsman whose obligation is to review the case;
he is not simply a Hearing Officer tasked with the
initial resolution of the motion
19. The OP's claims that Gonzales could have
supervised his subordinates to promptly act on
Mendoza's motion and apprised the Tanodbayan of
the urgency of resolving the same are similarly
groundless. The Office of the Ombudsman handles
numerous cases and we cannot conclusively state, as
the OP appears to suggest, that Mendoza's case
should have been prioritized over other similar cases.
20. Equally important, the constitutional guarantee of
"speedy disposition of cases" before, among others,
quasi-judicial bodies (like the Office of the
Ombudsman), is itself a relative concept. Thus, the
delay, if any, must be measured in this objective
constitutional sense.
The Special Prosecutor: The Constitutional
Issue
21. The 1987 Constitution created a new, independent
Office of the Ombudsman. The existing Tanodbayan
at the time became the Office of the Special
Prosecutor under the 1987 Constitution. While the
composition of the independent Office of the
Ombudsman under the 1987 Constitution does not
textually include the Special Prosecutor, the
unconstitutionality of Section 8(2) of RA No.
6770 should equally apply to the Special
Prosecutor.
22. By constitutional design, the Special Prosecutor is
by no means an ordinary subordinate but one who
effectively and directly aids the Ombudsman in the
exercise of his/her duties, which include investigation
and prosecution of officials in the Executive
Department
23. Thus, even if the Office of the Special Prosecutor
is not expressly made part of the composition of the
Office of the Ombudsman, the role it performs as an
organic component of that Office militates against a
differential treatment between the Ombudsman’s
Deputies, on one hand, and the Special Prosecutor
himself, on the other. What is true for the
Ombudsman must be equally true, not only for her
Deputies but, also for other lesser officials of that
Office who act directly as agents of the Ombudsman
herself in the performance of her duties.
24. Under the present Constitution, there is every
reason to treat the Special Prosecutor to be at par
with the Ombudsman's deputies, at least insofar as an
extraneous disciplinary authority is concerned, and
must also enjoy the same grant of independence
under the Constitution.
25. However, by a vote of 8-7, the Court resolved
to maintain the validity of Section 8(2) of RA
No. 6770 insofar as Sulit is concerned. The
Court did not consider the Office of the Special
Prosecutor to be constitutionally within the
Office of the Ombudsman and is, hence, not
entitled to the independence the latter enjoys
under the Constitution.
49. Case Summary
Macalino vs. Sandiganbayan (2002)
G.R. Nos. 140199-200 | 2002-02-06
Subject: PNCC employee is not a public officer within
the jurisdiction of the Sandiganbayan
Facts:
The Special Prosecutor, Office of the Ombudsman,
with the approval of the Ombudsman, filed with the
Sandiganbayan two informations against petitioner
Felicito Macalino and Liwayway Tan charging them
with estafa through falsification of official documents
and frustrated estafa through falsification of
mercantile documents.
The information charged that petitioner Macalino,
being then the Assistant Manager of the Treasury
Division and the Head of the Loans Administration &
Insurance Section of the Philippine National
157
Construction Corporation (PNCC), a government-
controlled corporation, conspired with his wife,
Liwayway Tan, being then the owner of Wacker
Marketing, to falsely prepare a demand draft in the
amount of P983,682.11 by superimposing the name
"Wacker Marketing" as payee instead of Bankers Trust
Company which was the real payee. As a result of
such acts of falsification, PNB Buendia issued demand
drafts payable to Wacker Marketing, which Liwayway
Tan thereafter exchanged with PNB Balanga Branch
for checks which were deposited into the account of
Wacker Marketing.
Similarly, Macalino falsified PNB Check No. 552312 for
P2,250,000.00 by altering the payee indicated therein
to make it appear that the check was payable to
Wacker Marketing instead of Interbank.
Petitioner moved for leave to file a motion to dismiss
on the ground that the Sandiganbayan has no
jurisdiction over him since he is not a public officer
because the (PNCC, formerly the Construction and
Development Corporation of the Philippines (CDCP), is
not a government-owned or controlled corporation
with original charter.
The Sandiganbayan denied petitioner's motion to
dismiss for lack of merit.
Hence, this petition. The sole issue raised is whether
petitioner, an employee of the PNCC, is a public officer
within the coverage of R. A. No. 3019 (Antigraft and
Corrupt Practices Act).
Held:
PNCC employee is not a public officer within the
jurisdiction of the Sandiganbayan
1. A public officer is defined under Republic Act No.
3019, as follows:
"Sec. 2. (a) xxx xxx xxx.
"(b) Public officer includes elective and appointive
officials and employees, permanent or temporary,
whether in the unclassified or classified or exempted
service receiving compensation, even nominal, from
the government as defined in the preceding
paragraph."
2. Article IX-B, Section 2 (1) of the 1987 Constitution
provides:
"The civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government,
including government-owned and controlled
corporations with original charters."
3. Republic Act No. 6770, echoing Article XI of the
1987 Constitution, provides:
"Section 15. Powers, Functions and Duties -The Office
of the Ombudsman shall have the following powers,
functions and duties:
"1. Investigate and prosecute on its own or on
complaint by any person, any act or omission of any
public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust,
improper or inefficient. x x x.
"2. Direct, upon complaint or at its own instance, any
officer or employee of the Government, or of any
subdivision, agency or instrumentality thereof, as well
as any government-owned or controlled
corporationswith original charters, to perform and
expedite any act or duty required by law, or to stop,
prevent, and correct any abuse or impropriety in the
performance of duties."
4. Inasmuch as the PNCC has no original charter as it
was incorporated under the general law on
corporations, it follows inevitably that petitioner is not
a public officer within the coverage of R. A. No. 3019,
as amended. Thus, the Sandiganbayan has no
jurisdiction over him.
5. The only instance when the Sandiganbayan has
jurisdiction over a private individual is when the
complaint charges him either as a co-principal,
accomplice or accessory of a public officer who has
been charged with a crime within the jurisdiction of
Sandiganbayan.
6. The 1973 Constitution included as public officers,
officials and employees of corporations owned and
controlled by the government though organized and
existing under the general corporation law. The 1987
Constitution excluded such corporations.
7. The crimes charged against petitioner were
158
committed in 1989 and 1990. The criminal actions
were instituted in 1992. It is well-settled that "the
jurisdiction of a court to try a criminal case is
determined by the law in force at the institution of the
action.
50. Case Summary
Garcia vs. Mojica (1999)
G.R. No. 139043 | 1999-09-10
Subject: Authority of Ombudsman to conduct
administrative investigations; Authority of
Ombudsman (and Deputy Ombudsman) to
preventively suspend an official subject to its
administrative investigation; Determination of whether
or not the evidence of guilt is strong as to warrant
preventive suspension, as well as the period of such
suspension, rests with the Ombudsman (but may be
questioned via certiorari under Rule 65); Evidence
sufficiently strong to justify preventive suspension but
imposing maximum period of suspension is
unwarranted; Preventive suspension (max 60 days)
under the Local Government Code is distinct from
preventive suspension (max 6 months) under the
Ombudsman Law; Preventive suspension order may
be issued even before the charges against the official
concerned is heard; A reelected local official may not
be held administratively accountable for misconduct
committed during his prior term of office (Aguinaldo
doctrine)
Facts:
Petitioner Alvin B. Garcia, in his capacity as Cebu City
mayor, signed a contract with F.E. Zuellig for the
supply of asphalt to the city. The contract was signed
on May 7, 1998 or just four days before the date of
the 1998 election. The contract covers the period
1998-2001 which was to commence on September
1998 when the first delivery should have been made
by F.E. Zuellig.
Sometime in 1999, news reports came out regarding
the alleged anomalous purchase of asphalt by Cebu
City. This prompted the Office of the Ombudsman
(Visayas) to conduct an inquiry into the matter. The
special prosecution officer of the Office of the
Ombudsman assigned to conduct the inquiry, after
investigation, recommended that the inquiry be
upgraded to criminal and administrative cases against
petitioner Garcia and eight other city officials involved.
Respondent Arturo Mojica, Deputy Ombudsman for
the Visayas, approved this recommendation.
The Office of the Ombudsman issued the order placing
petitioners and the eight city officials under preventive
suspension without pay for the maximum period of six
months and to cease and desist from holding office
immediately.
Petitioner filed a motion for reconsideration of said
order, which motion was denied. Hence, the present
petition assailing the validity of the preventive
suspension order.
Petitioner argued that:
(a) Ombudsman is without jurisdiction over the
administrative case, considering that the alleged act
(contract signing) was committed during his previous
term, and petitioner is already serving a succeeding
term after being reelected for the same position
(b) Section 63 of the Local Government Code
mandates that the preventive suspension of local
elective officials be ordered only after the issues have
been joined, and only for a period not in excess of
sixty (60) days.
(c) the order was based on evidence on record
consisting solely of a hearsay affidavit, and
inadmissible newspaper reports.
Held:
Authority of Ombudsman to conduct
administrative investigations
1. The authority of the Ombudsman to conduct
administrative investigations is mandated by no less
than the Constitution. Under Article XI, Section 13[1],
the Ombudsman has the power to:
"investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or
inefficient."
2. R.A. 6770, the Ombudsman Law, further grants
the Office of the Ombudsman the statutory power to
conduct administrative investigations. (see Section 19,
RA 6770).
159
3. Section 21 of R.A. 6770 names the officials subject
to the Ombudsman's disciplinary authority:
"SEC. 21. Officials Subject To Disciplinary Authority;
Exceptions. - The Office of the Ombudsman shall have
disciplinary authority over all elective and appointive
officials of the Government and its subdivisions,
instrumentalities and agencies, including Members of
the Cabinet, local government, government-owned or
controlled corporations and their subsidiaries, except
over officials who may be removed only by
impeachment or over Members of Congress, and the
Judiciary."
4. Petitioner is an elective local official accused of
grave misconduct and dishonesty. That the Office of
the Ombudsman may conduct an administrative
investigation into the acts complained of, appears
clear from the foregoing provisions of R.A. 6770.
Authority of Ombudsman (and Deputy
Ombudsman) to preventively suspend an
official subject to its administrative
investigation
5. The power of the Office of the Ombudsman to
preventively suspend an official subject to its
administrative investigation is provided by specific
provision of law. Under Section 24 of R.A. 6770 –
"SEC. 24. Preventive Suspension. - The Ombudsman
or his Deputy may preventively suspend any officer or
employee under his authority pending an
investigation, if in his judgment the evidence of guilt is
strong, and (a) the charge against such officer or
employee involves dishonesty, oppression or grave
misconduct or neglect in the performance of duty; (b)
the charges would warrant removal from the service;
or (c) the respondent's continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue until the
case is terminated by the Office of the Ombudsman
butnot more than six months, without pay, except
when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which
case the period of such delay shall not be counted in
computing the period of suspension herein provided."
6. We have previously interpreted the phrase "under
his authority" to mean that the Ombudsman can
preventively suspend all officials under investigation
by his office, regardless of the branch of government
in which they are employed, excepting of course those
removable by impeachment, members of Congress
and the Judiciary.
7. The power to preventively suspend is available not
only to the Ombudsman but also to the Deputy
Ombudsman. This is the clear import of Section 24 of
R.A. 6770 . Hence, there can be no question in this
case as to the power and authority of respondent
Deputy Ombudsman Mojica to issue an order of
preventive suspension against an official like the
petitioner, to prevent that official from using his office
to intimidate or influence witnesses or to tamper with
records that might be vital to the prosecution of the
case against him.
Determination of whether or not the evidence
of guilt is strong as to warrant preventive
suspension, as well as the period of such
suspension, rests with the Ombudsman (but
may be questioned via certiorari under Rule 65)
8. Preventive suspension under Sec. 24, R.A. 6770
may be imposed when, among other factors,
the evidence of guilt is strong. The period for which
an official may be preventively suspended must not
exceed six months. In this case, petitioner was
preventively suspended and ordered to cease and
desist from holding office for the entire period of six
months, which is the maximum provided by law.
9. The determination of whether or not the evidence
of guilt is strong as to warrant preventive suspension
rests with the Ombudsman. The discretion as regards
the period of such suspension also necessarily belongs
to the Ombudsman, except that he cannot extend the
period of suspension beyond that provided by law.
10. But, in our view, both the strength of the
evidence to warrant said suspension and the propriety
of the length or period of suspension imposed on
petitioner are properly raised in this petition for
certiorari and prohibition. These equitable remedies
under Rule 65 of the Rules of Court precisely exist to
provide prompt relief where an "officer exercising
judicial or quasi-judicial functions has acted...with
grave abuse of discretion amounting to lack or excess
of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course
of law." (See Rule 65, Sec. 1).
160

Evidence sufficiently strong to justify
preventive suspension but imposing maximum
period of suspension is unwarranted
11. The recommendation that petitioner be
preventively suspended was based on an initial
investigation purportedly showing that: (1) the
contract for supply of asphalt to Cebu City was
designed to favor F.E. Zuellig, (2) the amount quoted
in the contract was too expensive compared to the
amount for which asphalt may be bought from local
suppliers such as Shell and Petron, particularly
considering that the amount was fixed in dollars and
was payable in pesos, thus exposing the city
government to the risks attendant to a fluctuating
exchange rate, and (3) the interest of the city under
the contract is not protected by adequate security.
These findings were based on the contract itself and
on letters from Bitumex and Credit Lyonnais. There
were also letters from Shell and Petron that were
replies to the Office of the Ombudsman's (Visayas)
inquiry on whether or not they could supply Cebu City
with asphalt and on what terms. Given these
findings, we cannot say that there is no evidence
sufficiently strong to justify the imposition of
preventive suspension against petitioner. But
considering its purpose and the circumstances in the
case brought before us, it does appear to us that
the imposition of the maximum period of six months is
unwarranted.
12. If the purpose of the preventive suspension was
to enable the investigating authority to gather
documents without intervention from petitioner, then,
from respondents' submission, we can only conclude
that this purpose was already achieved, during the
nearly month-long suspension of petitioner from June
25 to July 19, 1999. Granting that now the evidence
against petitioner is already strong, it is clear to us
that the maximum six-month period is excessive and
definitely longer than necessary for the Ombudsman
to make its legitimate case against petitioner. We
must conclude that the period during which petitioner
was already preventively suspended, has been
sufficient for the lawful purpose of preventing
petitioner from hiding and destroying needed
documents, or harassing and preventing witnesses
who wish to appear against him.
Preventive suspension (max 60 days) under the
Local Government Code is distinct from
preventive suspension (max 6 months) under
the Ombudsman Law
13. Petitioner claims that the Local Government Code
(LGC) should apply to this case of an elective local
official. Under the LGC, preventive suspension may
only be imposed after the issues are joined, and only
for a maximum period of sixty days. Here, petitioner
was suspended without having had the chance to
refute first the charges against him, and for the
maximum period of six months provided by the
Ombudsman Law. But administrative complaints
commenced under the Ombudsman Law are distinct
from those initiated under the Local Government
Code. The shorter period of suspension under the
Local Government Code is intended to limit the period
of suspension that may be imposed by a mayor, a
governor, or the President, who may be motivated by
partisan political considerations. In contrast the
Ombudsman, who can impose a longer period of
preventive suspension, is not likely to be similarly
motivated because it is a constitutional body.
14. Ombudsman has not been stripped of his power
to investigate local elective officials by virtue of the
Local Government Code. Indeed, there is nothing in
the Local Government Code to indicate that it has
repealed, whether expressly or impliedly, the pertinent
provisions of the Ombudsman Act. The two statutes
on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us
to only uphold one and strike down the other. (see
Hagad v. Gozo-Dadole)
Preventive suspension order may be issued
even before the charges against the official
concerned is heard
15. As to whether a local elective official may be
preventively suspended even before the issues could
be joined, it has been held in other cases that there
could be preventive suspension even before the
charges against the official are heard, or before the
official is given an opportunity to prove his
innocence. Preventive suspension is merely a
preliminary step in an administrative investigation and
is not in any way the final determination of the guilt of
the official concerned.
161

16. Petitioner argues that, pursuant to Section 26(2)
of the Ombudsman Law, before an inquiry may be
converted into a full-blown administrative
investigation, the official concerned must be given 72
hours to answer the charges against him. In his case,
petitioner says the inquiry was converted into an
administrative investigation without him being given
the required number of hours to answer.
17. Indeed, it does not appear that petitioner was
given the requisite 72 hours to submit a written
answer to the complaint against him. This,
however, does not make invalid the preventive
suspension order issued against him. As we have
earlier stated, a preventive suspension order may be
issued even before the charges against the official
concerned is heard.
A reelected local official may not be held
administratively accountable for misconduct
committed during his prior term of office
(Aguinaldo doctrine)
18. Petitioner contends that, per the ruling
in Aguinaldo v. Santos, his reelection has rendered the
administrative case filed against him moot and
academic. This is because reelection operates as a
condonation by the electorate of the misconduct
committed by an elective official during his previous
term.
19. Respondents, on the other hand, contend that
while the contract in question was signed during the
previous term of petitioner, it was to commence or be
effective only on September 1998 or during his
current term. Hence, the Aguinaldo doctrine cannot
apply, because what is involved in this case is a
misconduct committed during a previous term but to
be effective during the current term. Moreover,
respondents point out that the contract entered into
by petitioner with F.E. Zuellig was signed just four
days before the date of the elections. It was not made
an issue during the election, and so the electorate
could not be said to have voted for petitioner with
knowledge of this particular aspect of his life and
character.
20. In a number of cases, the court has repeatedly
held that a reelected local official may not be held
administratively accountable for misconduct
committed during his prior term of office. The
rationale for this holding is that when the electorate
put him back into office, it is presumed that it did so
with full knowledge of his life and character, including
his past misconduct. If, armed with such knowledge, it
still reelects him, then suchreelection is considered a
condonation of his past misdeeds.
21. That the people voted for an official with
knowledge of his character is presumed, precisely to
eliminate the need to determine, in factual terms, the
extent of this knowledge. Such an undertaking will
obviously be impossible. Our rulings on the matter do
not distinguish the precise timing or period when the
misconduct was committed, except that it must be
prior to the official's reelection.
22. In Salalima v. Guingona, the court absolved Albay
governor Romeo R. Salalima of his administrative
liability as regards a retainer agreement he signed in
favor of a law firm during his previous term, although
disbursements of public funds to cover payments
under the agreement were still being done during his
subsequent term. Petitioner argues that, following
Salalima, the doctrine in Aguinaldo applies even where
the effects of the act complained of are still evident
during the subsequent term of the reelected official.
23. The court, applying the doctrine in Salalima, ruled
that petitioner cannot anymore be held
administratively liable for an act done during his
previous term, that is, his signing of the contract with
F.E. Zuellig.
24. While petitioner can no longer be held
administratively liable for signing the contract with F.
E. Zuellig, however, this should not prejudice the filing
of any case other than administrative against
petitioner. Our ruling in this case, may not be taken to
mean the total exoneration of petitioner for whatever
wrongdoing, if any, might have been committed in
signing the subject contract.
162