exercise judicial restraint where the issue before it has already been mooted by
G.R. No. 191988. August 31, 2010.* subsequent events. More importantly, the constitutional requirement of the
ATTY. EVILLO C. PORMENTO, petitioner, vs. JOSEPH “ERAP” EJERCITO
ESTRADA and COMMISSION ON ELECTIONS, respondents.
Courts; Judicial Review; Moot and Academic Issues; While the novelty and
complexity of the constitutional issue involved in this case present a temptation that
magistrates, lawyers, legal scholars and law students alike would find hard to
resist, prudence dictates that this Court exercise judicial restraint where the issue
before it has already been mooted by subsequent events.—The novelty and
complexity of the constitutional issue involved in this case present a temptation
that magistrates, lawyers, legal scholars and law students alike would find hard
to resist. However, prudence dictates that this Court exercise judicial restraint
where the issue before it has already been mooted by subsequent events. More
importantly, the constitutional requirement of the existence of a “case” or an
“actual controversy” for the proper exercise of the power of judicial review
constrains us to refuse the allure of making a grand pronouncement that, in the
end, will amount to nothing but a non-binding opinion.
Same; Same; Same; Words and Phrases; When a case is moot, it becomes non-
justiciable; An action is considered “moot” when it no longer presents a justiciable
controversy because the issues involved have become academic or dead or when the
matter in dispute has already been resolved and hence, one is not entitled to judicial
intervention unless the issue is likely to be raised again between the parties.—As a
rule, this Court may only adjudicate actual, ongoing controversies. The Court is
not empowered to decide moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the result as to the thing in issue in
the case before it. In other words, when a case is moot, it becomes non-justiciable.
An action is considered “moot” when it no longer presents a justiciable controversy
because the issues involved have become academic or dead or when the matter in
dispute has already been resolved and hence, one is not entitled to judicial
intervention unless the issue is likely to be raised again between the parties. There
is nothing for the court to resolve as the determination thereof has been overtaken
by subsequent events.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the resolution of the Court.
George Erwin M. Garcia, Joan M. Padilla and Julie Ann V. Chang for private
respondent Joseph “Erap” Ejercito Estrada.
RESOLUTION
CORONA, C.J.:
What is the proper interpretation of the following provision of Section 4, Article
VII of the Constitution: “[t]he President shall not be eligible for any reelection?”
The novelty and complexity of the constitutional issue involved in this case
present a temptation that magistrates, lawyers, legal scholars and law students
alike would find hard to resist. However, prudence dictates that this Court
532
532 SUPREME COURT REPORTS ANNOTATED
Pormento vs. Estrada
existence of a “case” or an “actual controversy” for the proper exercise of the power
of judicial review constrains us to refuse the allure of making a grand
pronouncement that, in the end, will amount to nothing but a non-binding opinion.
The petition asks whether private respondent Joseph Ejercito Estrada is
covered by the ban on the President from “any reelection.” Private respondent was
elected President of the Republic of the Philippines in the general elections held
on May 11, 1998. He sought the presidency again in the general elections held on
May 10, 2010. Petitioner Atty. Evillo C. Pormento opposed private respondent’s
candidacy and filed a petition for disqualification. However, his petition was
denied by the Second Division of public respondent Commission on Elections
(COMELEC).1 His motion for reconsideration was subsequently denied by the
COMELEC en banc.2
Petitioner filed the instant petition for certiorari3 on May 7, 2010. However,
under the Rules of Court, the filing of such petition would not stay the execution
of the judgment, final order or resolution of the COMELEC that is sought to be
reviewed.4 Besides, petitioner did not even pray for the issuance of a temporary
restraining order or writ of preliminary injunction. Hence, private respondent was
able to participate as a candidate for the position of President in the May 10,
_______________
1 Resolution dated January 10, 2010 penned by Commissioner Nicodemo T.
Ferrer and concurred in by Commissioners Lucenito N. Tagle and Elias R.
Yusoph. Rollo, pp. 21-46.
2 Resolution dated May 4, 2010 penned by Commissioner Armando C. Velasco
and concurred in by Chairperson Jose A.R. Melo and Commissioners Rene V.
Sarmiento, Nicodemo T. Ferrer, Lucenito N. Tagle, Elias R. Yusoph and Gregorio
Y. Larrazabal. Id., pp. 47-51.
3 Under Rule 65 in relation to Rule 64 of the Rules of Court.
4 See Section 8, Rule 64 of the Rules of Court.
533
VOL. 629, AUGUST 31, 2010 533
Pormento vs. Estrada
2010 elections where he garnered the second highest number of votes.5
Private respondent was not elected President the second time he ran. Since the
issue on the proper interpretation of the phrase “any reelection” will be premised
on a person’s second (whether immediate or not) election as President, there is no
case or controversy to be resolved in this case. No live conflict of legal rights
exists.6 There is in this case no definite, concrete, real or substantial controversy
that touches on the legal relations of parties having adverse legal interests. 7 No
specific relief may conclusively be decreed upon by this Court in this case that will
benefit any of the parties herein.8 As such, one of the essential requisites for the
exercise of the power of judicial review, the existence of an actual case or
controversy, is sorely lacking in this case.
As a rule, this Court may only adjudicate actual, ongoing controversies. 9 The
Court is not empowered to decide moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the result as to the thing in
issue in the case before it.10 In other words, when a case is moot, it becomes non-
justiciable.11
_______________
5 Benigno Simeon C. Aquino III garnered the highest number of votes and was
therefore proclaimed as President.
6 See discussion on the concept of “case” or “controversy” in Cruz, Isagani,
Philippine Political Law, 2002 Edition, p. 259.
7 Id.
8 Id.
9 Honig v. Doe, 484 U.S. 305 (1988).
10 Id.
11 While there are exceptions to this rule, none of the exceptions applies in this
case. What may most probably come to mind is the “capable of repetition yet
evading review” exception. However, the said exception applies only where the
following two circumstances concur: (1) the challenged action is in its duration too
short to be fully litigated prior to its cessation or expiration and (2) there is a
reasonable expectation that the same complaining party would be subjected to the
same action again (Lewis v. Continental Bank Cor-
534
534 SUPREME COURT REPORTS ANNOTATED
Pormento vs. Estrada
An action is considered “moot” when it no longer presents a justiciable
controversy because the issues involved have become academic or dead or when
the matter in dispute has already been resolved and hence, one is not entitled to
judicial intervention unless the issue is likely to be raised again between the
parties. There is nothing for the court to resolve as the determination thereof has
been overtaken by subsequent events.12
Assuming an actual case or controversy existed prior to the proclamation of a
President who has been duly elected in the May 10, 2010 elections, the same is no
longer true today. Following the results of that election, private respondent was
not elected President for the second time. Thus, any discussion of his “reelection”
will simply be hypothetical and speculative. It will serve no useful or practical
purpose.
Accordingly, the petition is denied due course and is hereby DISMISSED.
SO ORDERED.
Carpio, Carpio-Morales, Velasco, Jr., Nachura, Leonardo-De Castro,
Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza and Sereno, JJ.,
concur.
Brion, J., On Leave.
Peralta, J., On Official Leave.
Petition dismissed.
_______________
poration, 494 U.S. 472 [1990]). The second of these requirements is absent in this
case. It is highly speculative and hypothetical that petitioner would be subjected
to the same action again. It is highly doubtful if he can demonstrate a substantial
likelihood that he will “suffer a harm” alleged in his petition. (See Honig v.
Doe, supra.)
12 Santiago v. Court of Appeals, G.R. No. 121908, 26 January 1998, 285 SCRA
16.
requirements, subject to the observance of fundamental and essential
requirements of due process in justiciable cases presented before them. (Samalio
vs. Court of Appeals, 454 SCRA 462 [2005])
——o0o——
G.R. No. 191618. November 23, 2010.*
ATTY. ROMULO B. MACALINTAL, petitioner, vs. PRESIDENTIAL
ELECTORAL TRIBUNAL, respondent.
Remedial Law; Constitutional Law; Locus Standi; Parties; On more than one
occasion we have characterized a proper party as one who has sustained or is in
immediate danger of sustaining an injury as a result of the act complained of.—On
more than one occasion we have characterized a proper party as one who has
sustained or is in immediate danger of sustaining an injury as a result of the act
complained of. The dust has long settled on the test laid down in Baker v. Carr:
“whether the party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult questions.” Until and unless such actual or threatened injury is
established, the complainant is not clothed with legal personality to raise the
constitutional question.
Same; Same; Same; Same; Estoppel; His failure to raise a seasonable
constitutional challenge at that time, coupled with his unconditional acceptance of
the Tribunal’s authority over the case he was defending, translates to the clear
absence of an indispensable requisite for the proper invocation of this Court’s power
of judicial review.—Although there are recognized exceptions to this requisite, we
find none in this instance. Petitioner is unmistakably estopped from assailing the
jurisdiction of the PET before which tribunal he had ubiquitously appeared and
had acknowledged its jurisdiction in
_______________
* EN BANC.
784
 784 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
2004. His failure to raise a seasonable constitutional challenge at that time,
coupled with his unconditional acceptance of the Tribunal’s authority over the case
he was defending, translates to the clear absence of an indispensable requisite for
the proper invocation of this Court’s power of judicial review. Even on this score
alone, the petition ought to be dismissed outright.
Same; Statutory Construction; Presidential Electoral Tribunal; The Supreme
Court has original jurisdiction to decide presidential and vice-presidential election
protests while concurrently acting as an independent Electoral Tribunal.—
Petitioner, a prominent election lawyer who has filed several cases before this
Court involving constitutional and election law issues, including, among others,
the constitutionality of certain provisions of Republic Act (R.A.) No. 9189 (The
Overseas Absentee Voting Act of 2003), cannot claim ignorance of: (1) the
invocation of our jurisdiction under Section 4, Article VII of the Constitution; and
(2) the unanimous holding thereon. Unquestionably, the overarching
framework affirmed in Tecson v. Commission on Elections, 424 SCRA 277 (2004),
is that the Supreme Court has original jurisdiction to decide presidential and vice-
presidential election protests while concurrently acting as an independent
Electoral Tribunal.
Same; Words and Phrases; Verba Legis; Verba legis dictates that wherever
possible, the words used in the Constitution must be given their ordinary meaning
except where technical terms are employed, in which case the significance thus
attached to them prevails.—Verba legis dictates that wherever possible, the words
used in the Constitution must be given their ordinary meaning except where
technical terms are employed, in which case the significance thus attached to them
prevails. This Court, speaking through former Chief Justice Enrique Fernando,
in J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413 (1970),
instructs: As the Constitution is not primarily a lawyer’s document, it being
essential for the rule of law to obtain that it should ever be present in the people’s
consciousness, its language as much as possible should be understood in the sense
they have in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter it, based
on the postulate that the framers and the people mean what they say. Thus these
are cases where the need for construction is reduced to a minimum.785
VOL. 635, NOVEMBER 23, 2010 785
Macalintal vs. Presidential Electoral Tribunal
Same; Statutory Construction; Ratio Legis Et Anima; A doubtful provision
must be examined in light of the history of the times, and the condition and
circumstances surrounding the framing of the Constitution.—Where there is
ambiguity or doubt, the words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis et anima. A doubtful
provision must be examined in light of the history of the times, and the condition
and circumstances surrounding the framing of the Constitution. In following this
guideline, courts should bear in mind the object sought to be accomplished in
adopting a doubtful constitutional provision, and the evils sought to be prevented
or remedied. Consequently, the intent of the framers and the people ratifying the
constitution, and not the panderings of self-indulgent men, should be given effect.
Same; Same; Ut Magis Valeat Quam Pereat.—Last, ut magis valeat quam
pereat—the Constitution is to be interpreted as a whole. We intoned thus in the
landmark case of Civil Liberties Union v. Executive Secretary,194 SCRA 317
(1991): 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.
Same; Presidential Electoral Tribunal (PET); Powers of the Presidential
Electoral Tribunal is plenary; Unmistakable from the foregoing is that the exercise
of our power to judge presidential and vice-presidential election contests, as well as
the rule-making power adjunct thereto, is plenary; it is not as restrictive as
petitioner would interpret it.—Unmistakable from the foregoing is that the exercise
of our power to judge presidential and vice-presidenti al election contests, as well
as the rule-making power adjunct thereto, is plenary; it is not as restrictive as
petitioner would interpret it. In fact, former Chief Justice Hilario G. Davide, Jr.,
who proposed the insertion of
786
786 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
the phrase, intended the Supreme Court to exercise exclusive authority to
promulgate its rules of procedure for that purpose. To this, Justice Regalado
forthwith assented and then emphasized that the sole power ought to be without
intervention by the legislative department. Evidently, even the legislature cannot
limit the judicial power to resolve presidential and vice-presidential election
contests and our rule-making power connected thereto.
Constitutional Law; Courts; Supreme Court; The conferment of additional
jurisdiction to the Supreme Court, with the duty characterized as an “awesome”
task, includes the means necessary to carry it into effect under the doctrine of
necessary implication.—The conferment of additional jurisdiction to the Supreme
Court, with the duty characterized as an “awesome” task, includes the means
necessary to carry it into effect under the doctrine of necessary implication. We
cannot overemphasize that the abstraction of the PET from the explicit grant of
power to the Supreme Court, given our abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of
authority to the Supreme Court sitting en banc. In the same vein, although the
method by which the Supreme Court exercises this authority is not specified in the
provision, the grant of power does not contain any limitation on the Supreme
Court’s exercise thereof. The Supreme Court’s method of deciding presidential and
vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision.
Thus, the subsequent directive in the provision for the Supreme Court to
“promulgate its rules for the purpose.”
 Senate Electoral Tribunal; House of Representatives Electoral Tribunal; The
different electoral tribunals, with the Supreme Court functioning as the
Presidential Electoral Tribunal (PET), are constitutional bodies.—Particularly
cogent are the discussions of the Constitutional Commission on the parallel
provisions of the SET and the HRET. The discussions point to the inevitable
conclusion that the different electoral tribunals, with the Supreme Court
functioning as the PET, are constitutional bodies, independent of the three
departments of government—Executive, Legislative, and Judiciary—but not
separate therefrom.787
VOL. 635, NOVEMBER 23, 2010 787
Macalintal vs. Presidential Electoral Tribunal
Same; Same; The Presidential Electoral Tribunal is not a separate and
distinct entity from the Supreme Court, albeit it has functions peculiar only to the
Tribunal.—By the same token, the PET is not a separate and distinct entity from
the Supreme Court, albeit it has functions peculiar only to the Tribunal. It is
obvious that the PET was constituted in implementation of Section 4, Article VII
of the Constitution, and it faithfully complies—not unlawfully defies—the
constitutional directive. The adoption of a separate seal, as well as the change in
the nomenclature of the Chief Justice and the Associate Justices into Chairman
and Members of the Tribunal, respectively, was designed simply to highlight the
singularity and exclusivity of the Tribunal’s functions as a special electoral court.
Same; Same; Electoral Contests.—The set up embodied in the Constitution
and statutes characterizes the resolution of electoral contests as
essentially an exercise of judicial power.
Same; Same; The power wielded by Presidential Electoral Tribunal (PET) is
a derivative of the plenary judicial power allocated to courts of law, expressly
provided in the Constitution.—With the explicit provision, the present
Constitution has allocated to the Supreme Court, in conjunction with latter’s
exercise of judicial power inherent in all courts, the task of deciding presidential
and vice-presidential election contests, with full authority in the exercise thereof.
The power wielded by PET is a derivative of the plenary judicial power allocated
to courts of law, expressly provided in the Constitution. On the whole, the
Constitution draws a thin, but, nevertheless, distinct line between the PET and
the Supreme Court.
Same; Same; The Presidential Electoral Tribunal, as intended by the framers
of the Constitution, is to be an institution independent, but not separate, from the
judicial department, i.e., the Supreme Court.—We have previously declared that
the PET is not simply an agency to which Members of the Court were designated.
Once again, the PET, as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the
Supreme Court. McCulloch v. State of Maryland proclaimed that “[a] power
without the means to use it, is a nullity.” The vehicle for the exercise of this power,
as intended by the Constitution and specifically mentioned by the Constitutional
Commissioners during the discussions on the grant of power to this Court, is the
788
788 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
PET. Thus, a microscopic view, like the petitioner’s, should not constrict an
absolute and constitutional grant of judicial power.
Same; Pleadings and Practice; Baseless Petitions.—One final note. Although
this Court has no control over contrary people and naysayers, we reiterate a word
of caution against the filing of baseless petitions which only clog the Court’s docket.
The petition in the instant case belongs to that classification.
PETITION to question the constitution of the Presidential Electoral Tribunal.
The facts are stated in the opinion of the Court.
NACHURA, J.:
Confronting us is an undesignated petition1 filed by Atty. Romulo B.
Macalintal (Atty. Macalintal), that questions the constitution of the Presidential
Electoral Tribunal (PET) as an illegal and unauthorized progeny of Section
4,2 Article VII of the Constitution:
“The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.”
While petitioner concedes that the Supreme Court is “authorized to promulgate
its rules for the purpose,” he chafes at the creation of a purportedly “separate
tribunal” complemented by a budget allocation, a seal, a set of personnel and
confidential employees, to effect the constitutional mandate. Petitioner’s averment
is supposedly supported by the provisions of the 2005 Rules of the Presidential
Electoral Tribunal (2005 PET Rules),3 specifically:
_______________
1 Rollo, pp. 3-9.
2 Paragraph 7.
3 On May 4, 2010, the 2010 Rules of the Presidential Electoral Tribunal (2010
PET Rules) took effect.
789
VOL. 635, NOVEMBER 23, 2010 789
Macalintal vs. Presidential Electoral Tribunal
(1) Rule 3 which provides for membership of the PET wherein the Chief
Justice and the Associate Justices are designated as “Chairman and Members,”
respectively;
(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees
and confidential employees of every member thereof;
(3) Rule 9 which provides for a separate “Administrative Staff of the
Tribunal” with the appointment of a Clerk and a Deputy Clerk of the Tribunal
who, at the discretion of the PET, may designate the Clerk of Court (en banc) as
the Clerk of the Tribunal; and
(4) Rule 11 which provides for a “seal” separate and distinct from the
Supreme Court seal.
Grudgingly, petitioner throws us a bone by acknowledging that the invoked
constitutional provision does allow the “appointment of additional personnel.”
Further, petitioner highlights our decision in Buac v. COMELEC4which
peripherally declared that “contests involving the President and the Vice-
President fall within the exclusive original jurisdiction of the PET, x x x in the
exercise of quasi-judicial power.” On this point, petitioner reiterates that the
constitution of the PET, with the designation of the Members of the Court as
Chairman and Members thereof, contravenes Section 12, Article VIII of the
Constitution, which prohibits the designation of Members of the Supreme Court
and of other courts established by law to any agency performing quasi-judicial or
administrative functions.
The Office of the Solicitor General (OSG), as directed in our Resolution dated
April 6, 2010, filed a Comment5 thereon. At the outset, the OSG points out that
the petition filed by Atty. Macalintal is unspecified and without statutory basis;
“the
_______________
4 465 Phil. 800, 810; 421 SCRA 92, 103 (2004).
5 Rollo, pp. 12-38.
790
790 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
liberal approach in its preparation x x x is a violation of the well known rules of
practice and pleading in this jurisdiction.”
In all, the OSG crystallizes the following issues for resolution of the Court:
I
WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT
PETITION.
II
WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL
TRIBUNAL IS UNCONSTITUTIONAL FOR BEING A VIOLATION OF
PARAGRAPH 7, SECTION 4 OF ARTICLE VII OF THE 1987 CONSTITUTION.
III
WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME
COURT AS MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS
UNCONSTITUTIONAL FOR BEING A VIOLATION OF SECTION 12, ARTICLE
VIII OF THE 1987 CONSTITUTION.6
In his Reply,7 petitioner maintains that:
1. He has legal standing to file the petition given his averment of
transcendental importance of the issues raised therein;
2. The creation of the PET, a separate tribunal from the Supreme Court,
violates Section 4, Article VII of the Constitution; and
3. The PET, being a separate tribunal, exercises quasi-judicial functions
contrary to Section 12, Article VIII of the Constitution.
_______________
6 Id., at pp. 15-16.
7 Id., at pp. 42-58.
791
VOL. 635, NOVEMBER 23, 2010 791
Macalintal vs. Presidential Electoral Tribunal
We winnow the meanderings of petitioner into the singular issue of whether
the constitution of the PET, composed of the Members of this Court, is
unconstitutional, and violates Section 4, Article VII and Section 12, Article VIII of
the Constitution.
But first, we dispose of the procedural issue of whether petitioner has standing
to file the present petition.
The issue of locus standi is derived from the following requisites of a judicial
inquiry:
1. There must be an actual case or controversy;
2. The question of constitutionality must be raised by the proper party;
3. The constitutional question must be raised at the earliest possible
opportunity; and
4. The decision of the constitutional question must be necessary to the
determination of the case itself.8
On more than one occasion we have characterized a proper party as one who
has sustained or is in immediate danger of sustaining an injury as a result of the
act complained of.9 The dust has long settled on the test laid down in Baker v.
Carr:10 “whether the party has alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult questions.”11 Until and unless such actual or threatened in-
_______________
8 Cruz, Philippine Political Law, 1998 ed., p. 257.
9 Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain, G.R. Nos. 183591, 183752, 183893, 183951, and
183962, October 14, 2008, 568 SCRA 402, 456.
10 369 U.S. 186 (1962).
11 Province of Batangas v. Hon. Romulo, 473 Phil. 806; 429 SCRA 736 (2004).
792
792 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
jury is established, the complainant is not clothed with legal personality to raise
the constitutional question.
Our pronouncements in David v. Macapagal-Arroyo12 illuminate:
“The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a “public right” in assailing an allegedly illegal official action,
does so as a representative of the general public. He may be a person who is
affected no differently from any other person. He could be suing as a “stranger,” or
in the category of a “citizen,” or “taxpayer.” In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words, he has to make
out a sufficient interest in the vindication of the public order and the securing of
relief as a” citizen” or “taxpayer.”
xxxx
However, to prevent just about any person from seeking judicial interference
in any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United States
Supreme Court laid down the more stringent “direct injury” test in Ex Parte
Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that for a
private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the “direct injury” test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must have “a
personal and substantial interest in the case such that he has sustained,
or will sustain direct injury as a result.” The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse
Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix.
_______________
12 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, and 171424,
May 3, 2006, 489 SCRA 160, 216-221. (Citations omitted.)
793
VOL. 635, NOVEMBER 23, 2010 793
Macalintal vs. Presidential Electoral Tribunal
However, being a mere procedural technicality, the requirement of locus
standimay be waived by the Court in the exercise of its discretion. This was done
in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the
“transcendental importance” of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, this
Court resolved to pass upon the issues raised due to the “far-reaching
implications” of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.
xxxx
By way of summary, the following rules may be culled from the cases decided
by this Court. Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met:
(1) 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.”
Contrary to the well-settled actual and direct injury test, petitioner has simply
alleged a generalized interest in the outcome of this case, and succeeds only in
muddling the issues. Paragraph 2 of the petition reads:
“2. x x x Since the creation and continued operation of the PET involves the use
of public funds and the issue raised herein is of
794
794 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
transcendental importance, it is petitioner’s humble submission that, as a citizen,
a taxpayer and a member of the BAR, he has the legal standing to file this petition.”
But even if his submission is valid, petitioner’s standing is still imperiled by
the white elephant in the petition, i.e., his appearance as counsel for former
President Gloria Macapagal-Arroyo (Macapagal-Arroyo) in the election protest
filed by 2004 presidential candidate Fernando Poe, Jr. before the Presidential
Electoral Tribunal,13 because judicial inquiry, as mentioned above, requires that
the constitutional question be raised at the earliest possible opportunity. 14 Such
appearance as counsel before the Tribunal, to our mind, would have been the first
opportunity to challenge the constitutionality of the Tribunal’s constitution.
Although there are recognized exceptions to this requisite, we find none in this
instance. Petitioner is unmistakably estopped from assailing the jurisdiction of the
PET before which tribunal he had ubiquitously appeared and had acknowledged
its jurisdiction in 2004. His failure to raise a seasonable constitutional challenge
at that time, coupled with his unconditional acceptance of the Tribunal’s authority
over the case he was defending, translates to the clear absence of an indispensable
requisite for the proper invocation of this Court’s power of judicial review. Even on
this score alone, the petition ought to be dismissed outright.
Prior to petitioner’s appearance as counsel for then protestee Macapagal-
Arroyo, we had occasion to affirm the grant of original jurisdiction to this Court as
a Presidential Electoral Tribunal in the auspicious case of Tecson v. Commission
on Elections.15 Thus—
_______________
13 Poe v. Macapagal-Arroyo, P.E.T. Case No. 002, March 29, 2005, 454 SCRA
142.
14 Cruz, Philippine Political Law, 1998 ed., p. 263.
15 G.R. Nos. 161434, 161634, and 161824, March 3, 2004, 424 SCRA 277, 324-
325. (Emphasis supplied.)
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“Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634,
invoke the provisions of Article VII, Section 4, paragraph 7, of the 1987
Constitution in assailing the jurisdiction of the COMELEC when it took cognizance
of SPA No. 04-003 and in urging the Supreme Court to instead take on the petitions
they directly instituted before it. The Constitutional provision cited reads:
 “The Supreme Court, sitting en banc, shall be the sole judge of all
contests relating to the election, returns, and qualifications of the President
or Vice-President, and may promulgate its rules for the purpose.”
The provision is an innovation of the 1987 Constitution. The omission in the
1935 and the 1973 Constitution to designate any tribunal to be the sole judge of
presidential and vice-presidential contests, has constrained this Court to declare,
in Lopez vs. Roxas, as “not (being) justiciable” controversies or disputes involving
contests on the elections, returns and qualifications of the President or Vice-
President. The constitutional lapse prompted Congress, on 21 June 1957, to enact
Republic Act No. 1793, “An Act Constituting an Independent Presidential Electoral
Tribunal to Try, Hear and Decide Protests Contesting the Election of the President-
Elect and the Vice-President-Elect of the Philippines and Providing for the Manner
of Hearing the Same.” Republic Act 1793 designated the Chief Justice and the
Associate Justices of the Supreme Court to be the members of the
tribunal. Although the subsequent adoption of the parliamentary form of
government under the 1973 Constitution might have implicitly affected
Republic Act No. 1793, the statutory set-up, nonetheless, would now be
deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.”
Former Chief Justice Reynato S. Puno, in his separate opinion, was even more
categorical:
“The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on
the Tecson and Valdez petitions. Petitioners cannot invoke Article VII, Section 4,
par. 7 of the Constitution which provides:
“The Supreme Court, sitting en banc shall be the sole judge of all
contests relating to the election, returns and quali-
796
796 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
fications of the President or Vice President and may promulgate its rules
for the purpose.”
The word “contest” in the provision means that the jurisdiction of this Court can
only be invoked after the election and proclamation of a President or Vice
President. There can be no “contest” before a winner is proclaimed.”16
Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:
“G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under
the last paragraph of Section 4, Article VII of the 1987 Constitution. I agree with
the majority opinion that these petitions should be dismissed outright for
prematurity. The Court has no jurisdiction at this point of time to entertain said
petitions.
The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate
Electoral Tribunal (SET) and House of Representatives Electoral Tribunal (HRET)
are electoral tribunals, each specifically and exclusively clothed with jurisdiction
by the Constitution to act respectively as “sole judge of all contests relating to the
election, returns, and qualifications” of the President and Vice-President,
Senators, and Representatives. In a litany of cases, this Court has long recognized
that these electoral tribunals exercise jurisdiction over election contests only after
a candidate has already been proclaimed winner in an election. Rules 14 and 15 of
the Rules of the Presidential Electoral Tribunal provide that, for President or Vice-
President, election protest or quo warranto may be filed after the proclamation of
the winner.”17
Petitioner, a prominent election lawyer who has filed several cases before this
Court involving constitutional and election law issues, including, among others,
the constitutionality of certain provisions of Republic Act (R.A.) No. 9189 (The
Overseas Absentee Voting Act of 2003),18 cannot claim igno-
_______________
16 Id., at p. 363.
17 Id., at pp. 431-432.
18 Atty. Macalintal v. Commission on Elections, 453 Phil. 586; 405 SCRA 614
(2003).
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Macalintal vs. Presidential Electoral Tribunal
rance of: (1) the invocation of our jurisdiction under Section 4, Article VII of the
Constitution; and (2) the unanimous holding thereon. Unquestionably,
the overarching framework affirmed in Tecson v. Commission on Elections19 is
that the Supreme Court has original jurisdiction to decide presidential and vice-
presidential election protests while concurrently acting as an independent
Electoral Tribunal.
Despite the foregoing, petitioner is adamant on his contention that the
provision, as worded, does not authorize the constitution of the PET. And although
he concedes that the Supreme Court may promulgate its rules for this purpose,
petitioner is insistent that the constitution of the PET is unconstitutional.
However, petitioner avers that it allows the Court to appoint additional personnel
for the purpose, notwithstanding the silence of the constitutional provision.
Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at
least one might possibly stick. But these arguments fail to elucidate on the scope
of the rules the Supreme Court is allowed to promulgate. Apparently, petitioner’s
concept of this adjunct of judicial power is very restrictive. Fortunately, thanks in
no part to petitioner’s opinion, we are guided by well-settled principles of
constitutional construction.
Verba legis dictates that wherever possible, the words used in the Constitution
must be given their ordinary meaning except where technical terms are employed,
in which case the significance thus attached to them prevails. This Court, speaking
through former Chief Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v.
Land Tenure Administration20 instructs:
“As the Constitution is not primarily a lawyer’s document, it being essential for
the rule of law to obtain that it should ever be present
_______________
19 Supra at note 15.
20 No. L-21064, February 18, 1970, 31 SCRA 413, 423.
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798 SUPREME COURT REPORTS ANNOTATED
 Macalintal vs. Presidential Electoral Tribunal
in the people’s consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power of
the courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus these are cases where the need for construction is reduced to
a minimum.”
However, where there is ambiguity or doubt, the words of the Constitution
should be interpreted in accordance with the intent of its framers or ratio legis et
anima. A doubtful provision must be examined in light of the history of the times,
and the condition and circumstances surrounding the framing of the
Constitution.21 In following this guideline, courts should bear in mind the object
sought to be accomplished in adopting a doubtful constitutional provision, and the
evils sought to be prevented or remedied.22Consequently, the intent of the framers
and the people ratifying the constitution, and not the panderings of self-indulgent
men, should be given effect.
Last, ut magis valeat quam pereat—the Constitution is to be interpreted as a
whole. We intoned thus in the landmark case of Civil Liberties Union v. Executive
Secretary:23
“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.
_______________
21 McCulloch v. State of Maryland, 17 U.S. 316 (Wheat.), 1819.
22 In the Philippine context, see Civil Liberties Union v. Executive Secretary,
G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.
23 Id., at 330-331.
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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.”
We had earlier expounded on this rule of construction in Chiongbian v. De
Leon, et al.,24 to wit:
“[T]he members of the Constitutional Convention could not have dedicated a
provision of our Constitution merely for the benefit of one person without
considering that it could also affect others. When they adopted subsection 2, they
permitted, if not willed, that said 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.”
On its face, the contentious constitutional provision does not specify the
establishment of the PET. But neither does it preclude, much less prohibit,
otherwise. It entertains divergent interpretations which, though unacceptable to
petitioner, do not include his restrictive view—one which really does not offer a
solution.
Section 4, Article VII of the Constitution, the provision under scrutiny, should
be read with other related provisions of the Constitution such as the parallel
provisions on the Electoral Tribunals of the Senate and the House of
Representatives.
Before we resort to the records of the Constitutional Commission, we discuss
the framework of judicial power mapped out in the Constitution. Contrary to
petitioner’s assertion, the Supreme Court’s constitutional mandate to act as sole
judge of election contests involving our country’s highest public officials, and its
rule-making authority in connection therewith, is not restricted; it includes all
necessary powers implicit in the exercise thereof.
_______________
24 82 Phil. 771, 775 (1949).
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800 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25
“The 1987 Constitution has fully restored the separation of powers of the three
great branches of government. To recall the words of Justice Laurel in Angara v.
Electoral Commission, “the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government.” Thus, the 1987 Constitution explicitly provides
that “[t]he legislative power shall be vested in the Congress of the Philippines”
[Art. VI, Sec. 1], “[t]he executive power shall be vested in the President of the
Philippines” [Art. VII, Sec. 1], and “[t]he judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by law” [Art. VIII,
Sec. 1]. These provisions not only establish a separation of powers by actual
division but also confer plenary legislative, executive and judicial powers subject
only to limitations provided in the Constitution. For as the Supreme Court
in Ocampo v. Cabangis pointed out “a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the
government.”
The Court could not have been more explicit then on the plenary grant and
exercise of judicial power. Plainly, the abstraction of the Supreme Court acting as
a Presidential Electoral Tribunal from the unequivocal grant of jurisdiction in the
last paragraph of Section 4, Article VII of the Constitution is sound and tenable.
The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the
Article on the executive branch of government, and the constitution of the PET, is
evident in the discussions of the Constitutional Commission. On the exercise of
this Court’s judicial power as sole judge of presidential and vice-presidential
election contests, and to promulgate its rules
_______________
25 G.R. No. 88211, September 15, 1989, 177 SCRA 668, 688-689. (Emphasis
supplied, citations omitted.)
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Macalintal vs. Presidential Electoral Tribunal
for this purpose, we find the proceedings in the Constitutional Commission
most instructive:
MR. DAVIDE. On line 25, after the words “Vice-President,” I propose to add
AND MAY PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the
Supreme Court sitting en banc. This is also to confer on the Supreme Court
exclusive authority to enact the necessary rules while acting as sole judge
of all contests relating to the election, returns and qualifications of the
President or Vice-President.
MR. REGALADO. My personal position is that the rule-making power
of the Supreme Court with respect to its internal procedure is already
implicit under the Article on the Judiciary; considering, however, that
according to the Commissioner, the purpose of this is to indicate the sole
power of the Supreme Court without intervention by the legislature in
the promulgation of its rules on this particular point, I think I will
personally recommend its acceptance to the Committee.26
xxxx
MR. NOLLEDO. x x x.
With respect to Sections 10 and 11 on page 8, I understand that the Committee
has also created an Electoral Tribunal in the Senate and a Commission on
Appointments which may cover membership from both Houses. But my question
is: It seems to me that the committee report does not indicate which body should
promulgate the rules that shall govern the Electoral Tribunal and the Commission
on Appointments. Who shall then promulgate the rules of these bodies?
MR. DAVIDE. The Electoral Tribunal itself will establish and
promulgate its rules because it is a body distinct and independent
already from the House, and so with the Commission on Appointments
also. It will have the authority to promulgate its own rules.27
_______________
26 Records of the Constitutional Commission, Vol. 2, p. 433. (Emphasis
supplied.)
27 Id., at pp. 87-88. (Emphasis supplied.)
802
802 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
On another point of discussion relative to the grant of judicial power, but
equally cogent, we listen to former Chief Justice Roberto Concepcion:
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of
separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this
is a contest between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the
judiciary the right to declare who will be the President of our country, which to me
is a political action.
MR. CONCEPCION. There are legal rights which are enforceable
under the law, and these are essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome
and tedious, practically all the time of the Supreme Court sitting en
banc would be occupied with it considering that they will be going over
millions and millions of ballots or election returns, Madam President.28
Echoing the same sentiment and affirming the grant of judicial power to the
Supreme Court, Justice Florenz D. Regalado29 and Fr. Joaquin Bernas30 both
opined:
MR. VILLACORTA. Thank you very much, Madam President.
I am not sure whether Commissioner Suarez has expressed his point. On page
2, the fourth paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns and qualifications of the President or Vice-
President.
_______________
28 Id., at pp. 420-421. (Emphasis supplied.)
29 Supreme Court.
30 A Roman Catholic Priest of the Jesuit Order.
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May I seek clarification as to whether or not the matter of determining
the outcome of the contests relating to the election returns and
qualifications of the President or Vice-President is purely a political
matter and, therefore, should not be left entirely to the judiciary. Will the
above-quoted provision not impinge on the doctrine of separation of
powers between the executive and the judicial departments of the
government?
MR. REGALADO. No, I really do not feel that would be a problem. This
is a new provision incidentally. It was not in the 1935 Constitution nor in
the 1973 Constitution.
MR. VILLACORTA. That is right.
MR. REGALADO. We feel that it will not be an intrusion into the
separation of powers guaranteed to the judiciary because this is strictly
an adversarial and judicial proceeding.
MR. VILLACORTA. May I know the rationale of the Committee because this
supersedes Republic Act 7950 which provides for the Presidential Electoral
Tribunal?
 FR. BERNAS. Precisely, this is necessary. Election contests are, by
their nature, judicial. Therefore, they are cognizable only by courts. If,
for instance, we did not have a constitutional provision on an electoral
tribunal for the Senate or an electoral tribunal for the House, normally,
as composed, that cannot be given jurisdiction over contests.
So, the background of this is really the case of Roxas v. Lopez. The Gentleman
will remember that in that election, Lopez was declared winner. He filed a protest
before the Supreme Court because there was a republic act which created the
Supreme Court as the Presidential Electoral Tribunal. The question in this case
was whether new powers could be given the Supreme Court by law. In effect, the
conflict was actually whether there was an attempt to create two Supreme Courts
and the answer of the Supreme Court was: “No, this did not involve the creation of
two Supreme Courts, but precisely we are giving new jurisdiction to the Supreme
Court, as it is allowed by the Constitution. Congress may allocate various
jurisdictions.”804
804 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
Before the passage of that republic act, in case there was any contest between
two presidential candidates or two vice-presidential candidates, no one had
jurisdiction over it. So, it became necessary to create a Presidential
Electoral Tribunal. What we have done is to constitutionalize what was
statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power.31
Unmistakable from the foregoing is that the exercise of our power to judge
presidential and vice-presidential election contests, as well as the rule-making
power adjunct thereto, is plenary; it is not as restrictive as petitioner would
interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the
insertion of the phrase, intended the Supreme Court to exercise exclusive
authority to promulgate its rules of procedure for that purpose. To this, Justice
Regalado forthwith assented and then emphasized that the sole power ought to be
without intervention by the legislative department. Evidently, even the legislature
cannot limit the judicial power to resolve presidential and vice-presidential
election contests and our rule-making power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of
the PET simply constitutionalized what was statutory before the 1987
Constitution. The experiential context of the PET in our country cannot be
denied.32
Consequently, we find it imperative to trace the historical antecedents of the
PET.
Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation.
The precursors of the present Constitution did not contain similar provisions and
instead vested upon the legislature all phases of presidential and vice-presidential
_______________
31 Records of the Constitutional Commission, Vol. 2, pp. 407-408. (Emphasis
supplied.)
32 See Defensor-Santiago v. Ramos, P.E.T. Case No. 001, February 13, 1996,
253 SCRA 559; Tecson v. Commission on Elections, supra at note 15.
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Macalintal vs. Presidential Electoral Tribunal
elections—from the canvassing of election returns, to the proclamation of the
president-elect and the vice-president elect, and even the determination, by
ordinary legislation, of whether such proclamations may be contested. Unless the
legislature enacted a law creating an institution that would hear election contests
in the Presidential and Vice-Presidential race, a defeated candidate had no legal
right to demand a recount of the votes cast for the office involved or to challenge
the ineligibility of the proclaimed candidate. Effectively, presidential and vice-
presidential contests were non-justiciable in the then prevailing milieu.
The omission in the 1935 Constitution was intentional. It was mainly
influenced by the absence of a similar provision in its pattern, the Federal
Constitution of the United States. Rather, the creation of such tribunal was left to
the determination of the National Assembly. The journal of the 1935
Constitutional Convention is crystal clear on this point:
Delegate Saguin. – For an information. It seems that this Constitution does
not contain any provision with respect to the entity or body which will look into
the protests for the positions of the President and Vice-President.
President Recto. – Neither does the American constitution contain a provision
over the subject.
Delegate Saguin. – But then, who will decide these protests?
President Recto. – I suppose that the National Assembly will decide on that.33
To fill the void in the 1935 Constitution, the National Assembly enacted R.A.
No. 1793, establishing an independent PET to try, hear, and decide protests
contesting the election of President and Vice-President. The Chief Justice and the
Associate Justices of the Supreme Court were tasked to sit as its Chairman and
Members, respectively. Its composition was extended to retired Supreme Court
Justices and incumbent
_______________
33 Constitutional Convention Record, Vol. X, pp. 471-472.
806
806 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
Court of Appeals Justices who may be appointed as substitutes for ill, absent, or
temporarily incapacitated regular members.
The eleven-member tribunal was empowered to promulgate rules for the
conduct of its proceedings. It was mandated to sit en banc in deciding presidential
and vice-presidential contests and authorized to exercise powers similar to those
conferred upon courts of justice, including the issuance of subpoena, taking of
depositions, arrest of witnesses to compel their appearance, production of
documents and other evidence, and the power to punish contemptuous acts and
bearings. The tribunal was assigned a Clerk, subordinate officers, and employees
necessary for the efficient performance of its functions.
 R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution
which replaced the bicameral legislature under the 1935 Constitution with the
unicameral body of a parliamentary government.
With the 1973 Constitution, a PET was rendered irrelevant, considering that
the President was not directly chosen by the people but elected from among the
members of the National Assembly, while the position of Vice-President was
constitutionally non-existent.
In 1981, several modifications were introduced to the parliamentary system.
Executive power was restored to the President who was elected directly by the
people. An Executive Committee was formed to assist the President in the
performance of his functions and duties. Eventually, the Executive Committee was
abolished and the Office of Vice-President was installed anew.
These changes prompted the National Assembly to revive the PET by enacting,
on December 3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled “An Act
Constituting an Independent Presidential Electoral Tribunal to Try, Hear and
Decide Election Contests in the Office of the President and
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Macalintal vs. Presidential Electoral Tribunal
Vice-President of the Philippines, Appropriating Funds Therefor and For Other
Purposes.” This tribunal was composed of nine members, three of whom were the
Chief Justice of the Supreme Court and two Associate Justices designated by him,
while the six were divided equally between representatives of the majority and
minority parties in the Batasang Pambansa.
Aside from the license to wield powers akin to those of a court of justice, the
PET was permitted to recommend the prosecution of persons, whether public
officers or private individuals, who in its opinion had participated in any
irregularity connected with the canvassing and/or accomplishing of election
returns.
The independence of the tribunal was highlighted by a provision allocating a
specific budget from the national treasury or Special Activities Fund for its
operational expenses. It was empowered to appoint its own clerk in accordance
with its rules. However, the subordinate officers were strictly employees of the
judiciary or other officers of the government who were merely designated to the
tribunal.
After the historic People Power Revolution that ended the martial law era and
installed Corazon Aquino as President, civil liberties were restored and a new
constitution was formed.
With R.A. No. 1793 as framework, the 1986 Constitutional Commission
transformed the then statutory PET into a constitutional institution, albeit
without its traditional nomenclature:
“FR. BERNAS.x x x.
x x x. So it became necessary to create a Presidential Electoral Tribunal. What
we have done is to constitutionalize what was statutory but it is not an
infringement on the separation of powers because the power being given to the
Supreme Court is a judicial power.”34
_______________
34 Records of the Constitutional Commission, Vol. 2, p. 408.
808
808 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
Clearly, petitioner’s bete noire of the PET and the exercise of its power are
unwarranted. His arguments that: (1) the Chief Justice and Associate Justices are
referred to as “Chairman” and “Members,” respectively; (2) the PET uses a
different seal; (3) the Chairman is authorized to appoint personnel; and (4)
additional compensation is allocated to the “Members,” in order to bolster his claim
of infirmity in the establishment of the PET, are too superficial to merit further
attention by the Court.
Be that as it may, we hasten to clarify the structure of the PET as a legitimate
progeny of Section 4, Article VII of the Constitution, composed of members of the
Supreme Court, sitting en banc. The following exchange in the 1986 Constitutional
Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is
provided, and I quote:
The Supreme Court, sitting en banc[,] shall be the sole judge of all contests
relating to the election, returns and qualifications of the President or Vice-
President.
Are we not giving enormous work to the Supreme Court especially
when it is directed to sit en banc as the sole judge of all presidential and
vice-presidential election contests?
MR. SUMULONG. That question will be referred to Commissioner
Concepcion.
MR. CONCEPCION. This function was discharged by the Supreme
Court twice and the Supreme Court was able to dispose of each case in a
period of one year as provided by law. Of course, that was probably
during the late 1960s and early 1970s. I do not know how the present
Supreme Court would react to such circumstances, but there is also the
question of who else would hear the election protests.
MR. SUAREZ. We are asking this question because between lines 23 to 25,
there are no rules provided for the hearings and there is not time limit or duration
for the election contest to be decided by the Supreme Court. Also, we will have to
consider the historical background that when R.A. 1793, which organized the
Presidential
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Macalintal vs. Presidential Electoral Tribunal
Electoral Tribunal, was promulgated on June 21, 1957, at least three famous
election contests were presented and two of them ended up in withdrawal by the
protestants out of sheer frustration because of the delay in the resolution of the
cases. I am referring to the electoral protest that was lodged by former President
Carlos P. Garcia against our “kabalen” former President Diosdado Macapagal in
1961 and the vice-presidential election contest filed by the late Senator Gerardo
Roxas against Vice-President Fernando Lopez in 1965.
MR. CONCEPCION. I cannot answer for what the protestants had in mind.
But when that protest of Senator Roxas was withdrawn, the results were already
available. Senator Roxas did not want to have a decision adverse to him. The votes
were being counted already, and he did not get what he expected so rather than
have a decision adverse to his protest, he withdrew the case.
xxxx
MR. SUAREZ. I see. So the Commission would not have any objection
to vesting in the Supreme Court this matter of resolving presidential and
vice-presidential contests?
MR. CONCEPCION. Personally, I would not have any objection.
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of
separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a
contest between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the
judiciary the right to declare who will be the President of our country, which to me
is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under the
law, and these are essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome
and tedious, practically all the time of the Supreme Court sitting en
banc would be occupied with it considering that they will be going over
millions and millions of ballots or election returns, Madam President.810
810 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
MR. CONCEPCION. The time consumed or to be consumed in this contest
for President is dependent upon they key number of teams of revisors. I have no
experience insofar as contests in other offices are concerned.
MR. SUAREZ. Although there is a requirement here that the Supreme Court
is mandated to sit en banc?
MR. CONCEPCION. Yes.
MR. SUAREZ. I see.
MR. CONCEPCION. The steps involved in this contest are: First, the
ballot boxes are opened before teams of three, generally, a representative
each of the court, of the protestant and of the “protestee.” It is all a
questions of how many teams are organized. Of course, that can be
expensive, but it would be expensive whatever court one would choose.
There were times that the Supreme Court, with sometimes 50 teams at
the same time working, would classify the objections, the kind of
problems, and the court would only go over the objected votes on which
the parties could not agree. So it is not as awesome as it would appear
insofar as the Court is concerned. What is awesome is the cost of the
revision of the ballots because each party would have to appoint one
representative for every team, and that may take quite a big amount.
MR. SUAREZ. If we draw from the Commissioner’s experience which he is
sharing with us, what would be the reasonable period for the election contest to be
decided?
MR. CONCEPCION. Insofar as the Supreme Court is concerned, the
Supreme Court always manages to dispose of the case in one year.
MR. SUAREZ. In one year. Thank you for the clarification.35
Obvious from the foregoing is the intent to bestow independence to the
Supreme Court as the PET, to undertake the Herculean task of deciding election
protests involving presidential and vice-presidential candidates in accordance with
_______________
35 Id., at pp. 420-421. (Emphasis supplied.)
811
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Macalintal vs. Presidential Electoral Tribunal
the process outlined by former Chief Justice Roberto Concepcion. It was made in
response to the concern aired by delegate Jose E. Suarez that the additional duty
may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies
the budget allocation of the PET.
The conferment of additional jurisdiction to the Supreme Court, with the duty
characterized as an “awesome” task, includes the means necessary to carry it into
effect under the doctrine of necessary implication.36 We cannot overemphasize that
the abstraction of the PET from the explicit grant of power to the Supreme Court,
given our abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant
of authority to the Supreme Court sitting en banc. In the same vein, although the
method by which the Supreme Court exercises this authority is not specified in the
provision, the grant of power does not contain any limitation on the Supreme
Court’s exercise thereof. The Supreme Court’s method of deciding presidential and
vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision.
Thus, the subsequent directive in the provision for the Supreme Court to
“promulgate its rules for the purpose.”
The conferment of full authority to the Supreme Court, as a PET, is equivalent
to the full authority conferred upon the electoral tribunals of the Senate and the
House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House
of Representatives Electoral Tribunal (HRET),37 which we have affirmed on
numerous occasions.38
_______________
36 McCulloch v. State of Maryland, supra note 21.
37 CONSTITUTION, Art. VI, Sec. 17.
38 Sen. Defensor-Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 294; 298 SCRA
756 (1998), citing Lazatin v. House Electoral Tribu-
812
812 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
Particularly cogent are the discussions of the Constitutional Commission on
the parallel provisions of the SET and the HRET. The discussions point to the
inevitable conclusion that the different electoral tribunals, with the Supreme
Court functioning as the PET, are constitutional bodies, independent of the three
departments of government—Executive, Legislative, and Judiciary—but not
separate therefrom.
MR. MAAMBONG. x x x.
My questions will be very basic so we can go as fast as we can. In the case of
the electoral tribunal, either of the House or of the Senate, is it correct to say that
these tribunals are constitutional creations? I will distinguish these with the case
of the Tanodbayan and the Sandiganbayan which are created by mandate of the
Constitution but they are not constitutional creations. Is that a good distinction?
xxxx
MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral
Tribunal or the House Electoral Tribunal is a constitutional body?
MR. AZCUNA. It is, Madam President.
MR. MAAMBONG. If it is a constitutional body, is it then subject to
constitutional restrictions?
MR. AZCUNA. It would be subject to constitutional restrictions intended for
that body.
MR. MAAMBONG. I see. But I want to find out if the ruling in the case
of Vera v. Avelino, 77 Phil. 192, will still be applicable to the present bodies we are
creating since it ruled that the electoral tribunals are not separate departments of
the government. Would that ruling still be valid?
MR. AZCUNA. Yes, they are not separate departments because the
separate departments are the legislative, the
_______________
nal, 250 Phil. 390; 168 SCRA 391 (1988); Robles v. House of Representatives
Electoral Tribunal, G.R. No. 86647, February 5, 1990, 181 SCRA 780.
813
VOL. 635, NOVEMBER 23, 2010 813
Macalintal vs. Presidential Electoral Tribunal
executive and the judiciary; but they are constitutional bodies. 39
The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is
schooled by our holding in Lopez v. Roxas, et al.:42
Section 1 of Republic Act No. 1793, which provides that:
“There shall be an independent Presidential Electoral Tribunal x x x
which shall be the sole judge of all contests relating to the election, returns,
and qualifications of the president-elect and the vice-president-elect of the
Philippines.”
has the effect of giving said defeated candidate the legal right to contest judicially
the election of the President-elect of Vice-President-elect and to demand a recount
of the votes case for the office involved in the litigation, as well as to secure a
judgment declaring that he is the one elected president or vice-president, as the
case may be, and that, as such, he is entitled to assume the duties attached to said
office. And by providing, further, that the Presidential Electoral Tribunal “shall be
composed of the Chief Justice and the other ten Members of the Supreme Court,”
said legislation has conferred upon such Court an additional original jurisdiction
of an exclusive character.
Republic Act No. 1793 has not created a new or separate court. It has merely
conferred upon the Supreme Court the functions of a Presidential Electoral
Tribunal. The result of the enactment may be likened to the fact that courts of first
instance perform the functions of such ordinary courts of first instance, those of
court of land registration, those of probate courts, and those of courts of juvenile
and domestic relations. It is, also, comparable to the situation obtaining when the
municipal court of a provincial capital exercises its author-
_______________
39 Records of the Constitutional Commission, Vol. 2, pp. 111-112. (Emphasis
supplied.)
40 Supreme Court.
41 Court of Appeals.
42 No. L-25716, July 28, 1966, 17 SCRA 756, 762-765. (Emphasis supplied.)
814
814 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
ity, pursuant to law, over a limited number of cases which were previously within
the exclusive jurisdiction of courts of first instance.
In all of these instances, the court (court of first instance or municipal
court) is only one, although the functions may be distinct and,
even, separate. Thus the powers of a court of first instance, in the exercise of its
jurisdiction over ordinary civil cases, are broader than, as well as distinct and
separate from, those of the same court acting as a court of land registration or
a probate court, or as a court of juvenile and domestic relations. So too, the
authority of the municipal court of a provincial capital, when acting as such
municipal court, is, territorially more limited than that of the same court when
hearing the aforementioned cases which are primary within the jurisdiction of
courts of first instance. In other words, there is only one court, although it may
perform the functions pertaining to several types of courts, each having some
characteristics different from those of the others.
Indeed, the Supreme Court, the Court of Appeals and courts of first instance,
are vested with original jurisdiction, as well as with appellate jurisdiction, in
consequence of which they are both trial courts and, appellate courts, without
detracting from the fact that there is only oneSupreme Court, one Court of
Appeals, and one court of first instance, clothed with authority to discharge said
dual functions. A court of first instance, when performing the functions of a probate
court or a court of land registration, or a court of juvenile and domestic relations,
although with powers less broad than those of a court of first instance, hearing
ordinary actions, is not inferior to the latter, for one cannot be inferior to itself. So
too, the Presidential Electoral Tribunal is not inferior to the Supreme Court, since
it is the same Court although the functions peculiar to said Tribunal
are more limited in scope than those of the Supreme Court in the exercise of its
ordinary functions. Hence, the enactment of Republic Act No. 1793, does not entail
an assumption by Congress of the power of appointment vested by the Constitution
in the President. It merely connotes the imposition of additional duties upon the
Members of the Supreme Court.”
By the same token, the PET is not a separate and distinct entity from the
Supreme Court, albeit it has functions peculiar only to the Tribunal. It is obvious
that the PET was constituted in implementation of Section 4, Article VII of the
815
VOL. 635, NOVEMBER 23, 2010 815
Macalintal vs. Presidential Electoral Tribunal
Constitution, and it faithfully complies—not unlawfully defies—the constitutional
directive. The adoption of a separate seal, as well as the change in the
nomenclature of the Chief Justice and the Associate Justices into Chairman and
Members of the Tribunal, respectively, was designed simply to highlight the
singularity and exclusivity of the Tribunal’s functions as a special electoral court.
As regards petitioner’s claim that the PET exercises quasi-judicial functions in
contravention of Section 12, Article VIII of the Constitution, we point out that the
issue in Buac v. COMELEC43involved the characterization of the enforcement and
administration of a law relative to the conduct of a plebiscite which falls under the
jurisdiction of the Commission on Elections. However, petitioner latches on to the
enumeration in Buac which declared, in an obiter, that “contests involving the
President and the Vice-President fall within the exclusive original jurisdiction of
the PET, also in the exercise of quasi-judicial power.”
The issue raised by petitioner is more imagined than real. Section 12, Article
VIII of the Constitution reads:
“SEC. 12. The Members of the Supreme Court and of other courts
established by law shall not be designated to any agency performing quasi-judicial
or administrative functions.”
The traditional grant of judicial power is found in Section 1, Article VIII of the
Constitution which provides that the power “shall be vested in one Supreme Court
and in such lower courts as may be established by law.” Consistent with our
presidential system of government, the function of “dealing with the settlement of
disputes, controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable”44 is apportioned to courts of jus-
_______________
43 Supra note 4.
44 Javellana v. Executive Secretary, et al., 151-A Phil. 36, 131; 50 SCRA 30
(1973).
816
816 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
tice. With the advent of the 1987 Constitution, judicial power was expanded to
include “the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.”45 The
power was expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the
resolution of electoral contests as essentially an exercise of judicial
power.
At the barangay and municipal levels, original and exclusive jurisdiction over
election contests is vested in the municipal or metropolitan trial courts and the
regional trial courts, respectively.
At the higher levels—city, provincial, and regional, as well as congressional
and senatorial—exclusive and original jurisdiction is lodged in the COMELEC and
in the House of Representatives and Senate Electoral Tribunals, which are not,
strictly and literally speaking, courts of law. Although not courts of law, they
are, nonetheless, empowered to resolve election contests which involve, in essence,
an exercise of judicial power, because of the explicit constitutional empowerment
found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI
(for the Senate and House Electoral Tribunals) of the Constitution. Besides, when
the COMELEC, the HRET, and the SET decide election contests, their decisions
are still subject to judicial review—via a petition for certiorari filed by the proper
party—if there is a showing that the decision was rendered with grave abuse of
discretion tantamount to lack or excess of jurisdiction.46
_______________
45 CONSTITUTION, Art. VIII, Sec. 1, second paragraph.
46 See Robles v. House of Representatives Electoral Tribunal, supra note
38; Lazatin v. House Electoral Tribunal, supra note 38.
817
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Macalintal vs. Presidential Electoral Tribunal
It is also beyond cavil that when the Supreme Court, as PET, resolves a
presidential or vice-presidential election contest, it performs what is essentially a
judicial power. In the landmark case of Angara v. Electoral Commission,47 Justice
Jose P. Laurel enucleated that “it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of government along
constitutional channels.” In fact, Angara pointed out that “[t]he Constitution is a
definition of the powers of government.” And yet, at that time, the 1935
Constitution did not contain the expanded definition of judicial power found in
Article VIII, Section 1, paragraph 2 of the present Constitution.
With the explicit provision, the present Constitution has allocated to the
Supreme Court, in conjunction with latter’s exercise of judicial power inherent in
all courts,48 the task of deciding presidential and vice-presidential election
contests, with full authority in the exercise thereof. The power wielded by PET is
a derivative of the plenary judicial power allocated to courts of law, expressly
provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.
If the logic of petitioner is to be followed, all Members of the Court, sitting in
the Senate and House Electoral Tribunals would violate the constitutional
proscription found in Section 12, Article VIII. Surely, the petitioner will be among
the first to acknowledge that this is not so. The Constitution which, in Section 17,
Article VI, explicitly provides that three Supreme Court Justices shall sit in the
Senate and House Electoral Tribunals, respectively, effectively exempts the
Justices-Members thereof from the prohibition in Section 12, Article VIII. In the
same vein, it is the Constitution itself, in
_______________
47 63 Phil. 139 (1936).
48 See Ynot v. Intermediate Appellate Court, G.R. No. L-74457, March 20,
1987, 148 SCRA 659, 665; Tañada and Macapagal v. Cuenco, et al., 103 Phil. 1051
(1957); Alejandrino v. Quezon, 46 Phil. 83 (1924).
818
818 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
Section 4, Article VII, which exempts the Members of the Court, constituting the
PET, from the same prohibition.
We have previously declared that the PET is not simply an agency to which
Members of the Court were designated. Once again, the PET, as intended by the
framers of the Constitution, is to be an institution independent, but not separate,
from the judicial department, i.e., the Supreme Court. McCulloch v. State of
Maryland49 proclaimed that “[a] power without the means to use it, is a nullity.”
The vehicle for the exercise of this power, as intended by the Constitution and
specifically mentioned by the Constitutional Commissioners during the
discussions on the grant of power to this Court, is the PET. Thus, a microscopic
view, like the petitioner’s, should not constrict an absolute and constitutional grant
of judicial power.
One final note. Although this Court has no control over contrary people and
naysayers, we reiterate a word of caution against the filing of baseless petitions
which only clog the Court’s docket. The petition in the instant case belongs to that
classification.
WHEREFORE, the petition is DISMISSED. Costs against petitioner.
SO ORDERED.
Corona (C.J.), Carpio, Carpio-Morales, Velasco,
Leonardo-De Castro, Brion, Peralta, Bersamin, Abad,
Villarama, Jr., Perez, Mendoza and Sereno, JJ., concur.
Del Castillo, J., On Official Leave.
Petition dismissed.
Notes.—Once a winning candidate has been proclaimed, taken his oath, and
assumed office as a Member of the House of Representatives, COMELEC’s
jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the HRET’s
own jurisdiction begins. (Aggabao vs. Commission on Elections, 449 SCRA 400
[2005])
Protestant’s widow is not a real party in interest to this election protest. (Poe
vs. Macapagal-Arroyo, 454 SCRA 142 [2005])
Under Section 20 of R.A. No. 7166, the board of canvassers is mandated to
grant an objecting party 24 hours from the time of the presentation of the oral
objection to submit its opposition. (Espidol vs. Commission on Elections, 472 SCRA
380 [2005])
——o0o——
G.R. No. 191618. June 7, 2011.*
ATTY. ROMULO B. MACALINTAL, petitioner, vs.PRESIDENTIAL
ELECTORAL TRIBUNAL, respondent.
Constitutional Law; Election Law; Presidential Electoral Tribunal (PET);
Presidential Electoral Tribunal (PET) is authorized by the last paragraph of
Section 4, Article VII of the Constitution and as supported by the discussions of the
Members of the Constitutional Commission; The Constitution cannot contain the
specific wording required by petitioner in order for him to accept the
constitutionality of the Presidential Electoral Tribunal (PET).—We reiterate that
the PET is authorized by the last paragraph of Section 4, Article VII of the
Constitution and as supported by the discussions of the Members of the
Constitutional Commission, which drafted the present Constitution. The explicit
reference by the framers of our Constitution to constitutionalizing what was
merely statutory before is not diluted by the absence of a phrase, line or word,
mandating the Supreme Court to create a Presidential Electoral Tribunal. Suffice
Jr., it to state that the Constitution, verbose as it already is, cannot contain the specific
wording required by petitioner in order for him to accept the constitutionality of
the PET.
Same; Same; Same; Words and Phrases; Doctrine of Necessary Implication;
Under the doctrine of necessary implication, the additional jurisdiction bestowed
by the last paragraph of Section 4, Article VII of the Constitution to decide
presidential and vice-presidential elections contests includes the means necessary
to carry it into ef-

_______________ _______________

49 Supra note 21. * EN BANC.

819 240
VOL. 635, NOVEMBER 23, 2010 819 240 SUPREME COURT REPORTS ANNOTATED

Macalintal vs. Presidential Electoral Tribunal Macalintal vs. Presidential Electoral Tribunal
fect.—Judicial power granted to the Supreme Court by the same Constitution
is plenary. And under the doctrine of necessary implication, the additional
jurisdiction bestowed by the last paragraph of Section 4, Article VII of the
Constitution to decide presidential and vice-presidential elections contests
includes the means necessary to carry it into effect.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
RESOLUTION
NACHURA, J.:
Before us is a Motion for Reconsideration filed by petitioner Atty. Romulo B.
Macalintal of our Decision1 in G.R. No. 191618 dated November 23, 2010,
dismissing his petition and declaring the establishment of respondent Presidential
Electoral Tribunal (PET) as constitutional.
Petitioner reiterates his arguments on the alleged unconstitutional creation of
the PET:
1. He has standing to file the petition as a taxpayer and a concerned citizen.
2. He is not estopped from assailing the constitution of the PET simply by
virtue of his appearance as counsel of former president Gloria Macapagal-Arroyo
before respondent tribunal.
3. Section 4, Article VII of the Constitution does not provide for the creation
of the PET.
4. The PET violates Section 12, Article VIII of the Constitution.
_______________
1 Rollo, pp. 71-102.
241
VOL. 651, JUNE 7, 2011 241
Macalintal vs. Presidential Electoral Tribunal
To bolster his arguments that the PET is an illegal and unauthorized progeny
of Section 4, Article VII of the Constitution, petitioner invokes our ruling on the
constitutionality of the Philippine Truth Commission (PTC).2 Petitioner cites the
concurring opinion of Justice Teresita J. Leonardo-de Castro that the PTC is a
public office which cannot be created by the President, the power to do so being
lodged exclusively with Congress. Thus, petitioner submits that if the President,
as head of the Executive Department, cannot create the PTC, the Supreme Court,
likewise, cannot create the PET in the absence of an act of legislature.
On the other hand, in its Comment to the Motion for Reconsideration, the
Office of the Solicitor General maintains that:
1. Petitioner is without standing to file the petition.
2. Petitioner is estopped from assailing the jurisdiction of the PET.
3. The constitution of the PET is “on firm footing on the basis of the grant of
authority to the [Supreme] Court to be the sole judge of all election contests for the
President or Vice-President under paragraph 7, Section 4, Article VII of the 1987
Constitution.”
Except for the invocation of our decision in Louis “Barok” C. Biraogo v. The
Philippine Truth Commission of 2010,3 petitioner does not allege new arguments
to warrant reconsideration of our Decision.
We cannot agree with his insistence that the creation of the PET is
unconstitutional. We reiterate that the abstraction of the Supreme Court acting as
a Presidential Electoral Tribu-
_______________
2 Entitled “Biraogo v. Philippine Truth Commission” and “Lagman v.
Executive Secretary,” docketed as G.R. Nos. 192935 and 193036, respectively, and
promulgated on December 7, 2010, 637 SCRA 78.
3 G.R. No. 192935, December 7, 2010, 637 SCRA 78.
242
242 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
nal from the unequivocal grant of jurisdiction in the last paragraph of Section 4,
Article VII of the Constitution is sound and tenable. The provision reads:
“Sec. 4. x x x.
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.”
We mapped out the discussions of the Constitutional Commission on the
foregoing provision and concluded therefrom that:
“The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the
Article on the executive branch of government, and the constitution of the PET, is
evident in the discussions of the Constitutional Commission. On the exercise of
this Court’s judicial power as sole judge of presidential and vice-presidential
election contests, and to promulgate its rules for this purpose, we find the
proceedings in the Constitutional Commission most instructive:
MR. DAVIDE. On line 25, after the words “Vice-President,” I propose to add
AND MAY PROMULGATE ITS RULES FOR THE PURPOSE. This refers
to the Supreme Court sitting en banc. This is also to confer on the
Supreme Court exclusive authority to enact the necessary rules
while acting as sole judge of all contests relating to the election,
returns and qualifications of the President or Vice-President.
MR. REGALADO. My personal position is that the rule-making
power of the Supreme Court with respect to its internal procedure
is already implicit under the Article on the Judiciary; considering,
however, that according to the Commissioner, the purpose of this
is to indicate the sole power of the Supreme Court without
intervention by the legislature in the promulgation of its rules on
this particular point, I think I will personally recommend its
acceptance to the Committee.243
VOL. 651, JUNE 7, 2011 243
Macalintal vs. Presidential Electoral Tribunal
xxxx
MR. NOLLEDO x x x.
With respect to Sections 10 and 11 on page 8, I understand that the
Committee has also created an Electoral Tribunal in the Senate and a
Commission on Appointments which may cover membership from both
 Houses. But my question is: It seems to me that the committee report does
not indicate which body should promulgate the rules that shall govern the
Electoral Tribunal and the Commission on Appointments. Who shall then
promulgate the rules of these bodies?
MR. DAVIDE. The Electoral Tribunal itself will establish and
promulgate its rules because it is a body distinct and independent
already from the House, and so with the Commission on
Appointments also. It will have the authority to promulgate its own
rules.
On another point of discussion relative to the grant of judicial power, but equally
cogent, we listen to former Chief Justice Roberto Concepcion:
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of
separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that
this is a contest between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the
judiciary the right to declare who will be the President of our country, which
to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable
under the law, and these are essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome
and tedious, practically all the time of the Supreme Court
sitting en banc would be occupied with it considering that they
will be going over millions and
244
244 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
millions of ballots or election returns, Madam President.
Echoing the same sentiment and affirming the grant of judicial power to the
Supreme Court, Justice Florenz D. Regalado and Fr. Joaquin Bernas both opined:
MR. VILLACORTA. Thank you very much, Madam President.
I am not sure whether Commissioner Suarez has expressed his point. On
page 2, the fourth paragraph of Section 4 provides:
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns and qualifications of the President or Vice-
President.
May I seek clarification as to whether or not the matter of
determining the outcome of the contests relating to the election
returns and qualifications of the President or Vice-President is
purely a political matter and, therefore, should not be left entirely
to the judiciary. Will the above-quoted provision not impinge on
the doctrine of separation of powers between the executive and the
judicial departments of the government?
MR. REGALADO. No, I really do not feel that would be a problem.
This is a new provision incidentally. It was not in the 1935
Constitution nor in the 1973 Constitution.
MR. VILLACORTA. That is right.
MR. REGALADO. We feel that it will not be an intrusion into the
separation of powers guaranteed to the judiciary because this is
strictly an adversarial and judicial proceeding.
MR. VILLACORTA. May I know the rationale of the Committee because
this supersedes Republic Act 7950 which provides for the Presidential
Electoral Tribunal?
FR. BERNAS. Precisely, this is necessary. Election contests are, by
their nature, judicial. Therefore, they are cognizable only by
courts. If, for instance, we did not have a constitutional provision
on an electoral tribunal
245
VOL. 651, JUNE 7, 2011 245
Macalintal vs. Presidential Electoral Tribunal
for the Senate or an electoral tribunal for the House, normally, as
composed, that cannot be given jurisdiction over contests.
So, the background of this is really the case of Roxas v. Lopez. The
Gentleman will remember that in that election, Lopez was declared winner.
He filed a protest before the Supreme Court because there was a republic
act which created the Supreme Court as the Presidential Electoral
Tribunal. The question in this case was whether new powers could be given
the Supreme Court by law. In effect, the conflict was actually whether there
was an attempt to create two Supreme Courts and the answer of the
Supreme Court was: “No, this did not involve the creation of two Supreme
Courts, but precisely we are giving new jurisdiction to the Supreme Court,
as it is allowed by the Constitution. Congress may allocate various
jurisdictions.”
Before the passage of that republic act, in case there was any contest
between two presidential candidates or two vice-presidential candidates,
no one had jurisdiction over it. So, it became necessary to create a
Presidential Electoral Tribunal. What we have done is to
constitutionalize what was statutory but it is not an infringement
on the separation of powers because the power being given to the
Supreme Court is a judicial power.
Unmistakable from the foregoing is that the exercise of our power to judge
presidential and vice-presidential election contests, as well as the rule-making
power adjunct thereto, is plenary; it is not as restrictive as petitioner would
interpret it. In fact, former Chief Justice Hilario G. Davide, Jr., who proposed the
insertion of the phrase, intended the Supreme Court to exercise exclusive
authority to promulgate its rules of procedure for that purpose. To this, Justice
Regalado forthwith assented and then emphasized that the sole power ought to be
without intervention by the legislative department. Evidently, even the legislature
cannot limit the judicial power to resolve presidential and vice-presidential
election contests and our rule-making power connected thereto.
To foreclose all arguments of petitioner, we reiterate that the establishment of the
PET simply constitutionalized what was statutory
246
246 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
before the 1987 Constitution. The experiential context of the PET in our country
cannot be denied.”4
Stubbornly, despite the explicit reference of the Members of the Constitutional
Commission to a Presidential Electoral Tribunal, with Fr. Joaquin Bernas
categorically declaring that in crafting the last paragraph of Section 4, Article VII
of the Constitution, they “constitutionalize[d] what was statutory,” petitioner
continues to insist that the last paragraph of Section 4, Article VII of the
Constitution does not provide for the creation of the PET. Petitioner is adamant
that “the fact that [the provision] does not expressly prohibit [the] creation [of the
PET] is not an authority for the Supreme Court to create the same.”
Petitioner is going to town under the misplaced assumption that the text of the
provision itself was the only basis for this Court to sustain the PET’s
constitutionality.
We reiterate that the PET is authorized by the last paragraph of Section 4,
Article VII of the Constitution and as supported by the discussions of the Members
of the Constitutional Commission, which drafted the present Constitution.
The explicit reference by the framers of our Constitution to constitutionalizing
what was merely statutory before is not diluted by the absence of a phrase, line or
word, mandating the Supreme Court to create a Presidential Electoral Tribunal.
Suffice it to state that the Constitution, verbose as it already is, cannot contain
the specific wording required by petitioner in order for him to accept the
constitutionality of the PET.
In our Decision, we clarified the structure of the PET:
_______________
4 Atty. Romulo B. Macalintal v. Presidential Electoral Tribunal, G.R. No.
191618, November 23, 2010, 635 SCRA 783.
247
VOL. 651, JUNE 7, 2011 247
Macalintal vs. Presidential Electoral Tribunal
“Be that as it may, we hasten to clarify the structure of the PET as a legitimate
progeny of Section 4, Article VII of the Constitution, composed of members of the
Supreme Court, sitting en banc. The following exchange in the 1986 Constitutional
Commission should provide enlightenment:
MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is
provided, and I quote:
The Supreme Court, sitting en banc[,] shall be the sole judge of all contests
relating to the election, returns and qualifications of the President or Vice-
President.
Are we not giving enormous work to the Supreme Court especially
when it is directed to sit en banc as the sole judge of all presidential
and vice-presidential election contests?
MR. SUMULONG. That question will be referred to Commissioner
Concepcion.
MR. CONCEPCION. This function was discharged by the Supreme
Court twice and the Supreme Court was able to dispose of each
case in a period of one year as provided by law. Of course, that was
probably during the late 1960s and early 1970s. I do not know how
the present Supreme Court would react to such circumstances, but
there is also the question of who else would hear the election
protests.
MR. SUAREZ. We are asking this question because between lines 23 to 25,
there are no rules provided for the hearings and there is not time limit or
duration for the election contest to be decided by the Supreme Court. Also,
we will have to consider the historical background that when R.A. 1793,
which organized the Presidential Electoral Tribunal, was promulgated on
June 21, 1957, at least three famous election contests were presented and
two of them ended up in withdrawal by the protestants out of sheer
frustration because of the delay in the resolution of the cases. I am referring
to the electoral protest that was lodged by former President Carlos P.
Garcia against our “kabalen” former President Diosdado Macapagal in
1961 and the vice-presidential election contest filed by the late
248
248 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
Senator Gerardo Roxas against Vice-President Fernando Lopez in 1965.
MR. CONCEPCION. I cannot answer for what the protestants had in mind.
But when that protest of Senator Roxas was withdrawn, the results were
already available. Senator Roxas did not want to have a decision adverse
to him. The votes were being counted already, and he did not get what he
expected so rather than have a decision adverse to his protest, he withdrew
the case.
xxxx
MR. SUAREZ. I see. So the Commission would not have any
objection to vesting in the Supreme Court this matter of resolving
presidential and vice-presidential contests?
MR. CONCEPCION. Personally, I would not have any objection.
MR. SUAREZ. Thank you.
Would the Commissioner not consider that violative of the doctrine of
separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a
contest between two parties. This is a judicial power.
MR. SUAREZ. We know, but practically the Committee is giving to the
judiciary the right to declare who will be the President of our country, which
to me is a political action.
MR. CONCEPCION. There are legal rights which are enforceable under
the law, and these are essentially justiciable questions.
MR. SUAREZ. If the election contest proved to be long, burdensome
and tedious, practically all the time of the Supreme Court
sitting en banc would be occupied with it considering that they
will be going over millions and millions of ballots or election
returns, Madam President.
MR. CONCEPCION. The time consumed or to be consumed in this contest
for President is dependent upon they key number
249
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Macalintal vs. Presidential Electoral Tribunal
of teams of revisors. I have no experience insofar as contests in other offices
are concerned.
MR. SUAREZ. Although there is a requirement here that the Supreme
Court is mandated to sit en banc?
MR. CONCEPCION. Yes.
MR. SUAREZ. I see.
MR. CONCEPCION. The steps involved in this contest are: First, the
ballot boxes are opened before teams of three, generally, a
representative each of the court, of the protestant and of the
“protestee.” It is all a questions of how many teams are organized.
Of course, that can be expensive, but it would be expensive
whatever court one would choose. There were times that the
Supreme Court, with sometimes 50 teams at the same time
working, would classify the objections, the kind of problems, and
the court would only go over the objected votes on which the
parties could not agree. So it is not as awesome as it would appear
insofar as the Court is concerned. What is awesome is the cost of
the revision of the ballots because each party would have to
appoint one representative for every team, and that may take quite
a big amount.
MR. SUAREZ. If we draw from the Commissioner’s experience which he is
sharing with us, what would be the reasonable period for the election
contest to be decided?
MR. CONCEPCION. Insofar as the Supreme Court is concerned, the
Supreme Court always manages to dispose of the case in one year.
MR. SUAREZ. In one year. Thank you for the clarification.”5
Judicial power granted to the Supreme Court by the same Constitution is
plenary. And under the doctrine of necessary implication, the additional
jurisdiction bestowed by the last paragraph of Section 4, Article VII of the
Constitution to de-
_______________
5 Id.
250
250 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
cide presidential and vice-presidential elections contests includes the means
necessary to carry it into effect. Thus:
“Obvious from the foregoing is the intent to bestow independence to the Supreme
Court as the PET, to undertake the Herculean task of deciding election protests
involving presidential and vice-presidential candidates in accordance with the
process outlined by former Chief Justice Roberto Concepcion. It was made in
response to the concern aired by delegate Jose E. Suarez that the additional duty
may prove too burdensome for the Supreme Court. This explicit grant of
independence and of the plenary powers needed to discharge this burden justifies
the budget allocation of the PET.
The conferment of additional jurisdiction to the Supreme Court, with the duty
characterized as an “awesome” task, includes the means necessary to carry it into
effect under the doctrine of necessary implication. We cannot overemphasize that
the abstraction of the PET from the explicit grant of power to the Supreme Court,
given our abundant experience, is not unwarranted.
A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of
authority to the Supreme Court sitting en banc. In the same vein, although the
method by which the Supreme Court exercises this authority is not specified in the
provision, the grant of power does not contain any limitation on the Supreme
Court’s exercise thereof. The Supreme Court’s method of deciding presidential and
vice-presidential election contests, through the PET, is actually a derivative of the
exercise of the prerogative conferred by the aforequoted constitutional provision.
Thus, the subsequent directive in the provision for the Supreme Court to
“promulgate its rules for the purpose.”
The conferment of full authority to the Supreme Court, as a PET, is equivalent to
the full authority conferred upon the electoral tribunals of the Senate and the
House of Representatives, i.e., the Senate Electoral Tribunal (SET) and the House
of Representatives Electoral Tribunal (HRET), which we have affirmed on
numerous occasions.”6
_______________
6 Id.
251
VOL. 651, JUNE 7, 2011 251
Macalintal vs. Presidential Electoral Tribunal
Next, petitioner still claims that the PET exercises quasi-judicial power and,
thus, its members violate the proscription in Section 12, Article VIII of the
Constitution, which reads:
“SEC. 12. The Members of the Supreme Court and of other courts
established by law shall not be designated to any agency performing quasi-judicial
or administrative functions.”
We dispose of this argument as we have done in our Decision, viz.:
“The traditional grant of judicial power is found in Section 1, Article VIII of the
Constitution which provides that the power “shall be vested in one Supreme Court
and in such lower courts as may be established by law.” Consistent with our
presidential system of government, the function of “dealing with the settlement of
disputes, controversies or conflicts involving rights, duties or prerogatives that are
legally demandable and enforceable” is apportioned to courts of justice. With the
advent of the 1987 Constitution, judicial power was expanded to include “the duty
of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.” The power was
expanded, but it remained absolute.
The set up embodied in the Constitution and statutes characterizes the
resolution of electoral contests as essentially an exercise of judicial
power.
At the barangay and municipal levels, original and exclusive jurisdiction over
election contests is vested in the municipal or metropolitan trial courts and the
regional trial courts, respectively.
At the higher levels—city, provincial, and regional, as well as congressional and
senatorial—exclusive and original jurisdiction is lodged in the COMELEC and in
the House of Representatives and Senate Electoral Tribunals, which are not,
strictly and literally speaking, courts of law. Although not courts of law, they
are, nonetheless, empowered to resolve election contests which involve, in essence,
an exercise of judicial power, because of the explicit constitutional empowerment
found in Section 2(2), Article IX-C (for the
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252 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
COMELEC) and Section 17, Article VI (for the Senate and House Electoral
Tribunals) of the Constitution. Besides, when the COMELEC, the HRET, and the
SET decide election contests, their decisions are still subject to judicial review—
via a petition for certiorari filed by the proper party—if there is a showing that the
decision was rendered with grave abuse of discretion tantamount to lack or excess
of jurisdiction.
It is also beyond cavil that when the Supreme Court, as PET, resolves a
presidential or vice-presidential election contest, it performs what is essentially a
judicial power. In the landmark case of Angara v. Electoral Commission, Justice
Jose P. Laurel enucleated that “it would be inconceivable if the Constitution had
not provided for a mechanism by which to direct the course of government along
constitutional channels.” In fact, Angara pointed out that “[t]he Constitution is a
definition of the powers of government.” And yet, at that time, the 1935
Constitution did not contain the expanded definition of judicial power found in
Article VIII, Section 1, paragraph 2 of the present Constitution.
With the explicit provision, the present Constitution has allocated to the Supreme
Court, in conjunction with latter’s exercise of judicial power inherent in all courts,
the task of deciding presidential and vice-presidential election contests, with full
authority in the exercise thereof. The power wielded by PET is a derivative of the
plenary judicial power allocated to courts of law, expressly provided in the
Constitution. On the whole, the Constitution draws a thin, but, nevertheless,
distinct line between the PET and the Supreme Court.
If the logic of petitioner is to be followed, all Members of the Court, sitting in the
Senate and House Electoral Tribunals would violate the constitutional
proscription found in Section 12, Article VIII. Surely, the petitioner will be among
the first to acknowledge that this is not so. The Constitution which, in Section 17,
Article VI, explicitly provides that three Supreme Court Justices shall sit in the
Senate and House Electoral Tribunals, respectively, effectively exempts the
Justices-Members thereof from the prohibition in Section 12, Article VIII. In the
same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the
Members of the Court, constituting the PET, from the same prohibition.
We have previously declared that the PET is not simply an agency to which
Members of the Court were designated. Once again, the PET,
253
VOL. 651, JUNE 7, 2011 253
Macalintal vs. Presidential Electoral Tribunal
as intended by the framers of the Constitution, is to be an
institution independent, but not separate, from the judicial department, i.e., the
Supreme Court. McCulloch v. State of Maryland proclaimed that “[a] power
without the means to use it, is a nullity.” The vehicle for the exercise of this power,
as intended by the Constitution and specifically mentioned by the Constitutional
Commissioners during the discussions on the grant of power to this Court, is the
PET. Thus, a microscopic view, like the petitioner’s, should not constrict an
absolute and constitutional grant of judicial power.”7
Finally, petitioner’s application of our decision in Biraogo v. Philippine Truth
Commission8 to the present case is an unmitigated quantum leap.
The decision therein held that the PTC “finds justification under Section 17,
Article VII of the Constitution.” A plain reading of the constitutional
provisions, i.e., last paragraph of Section 4 and Section 17, both of Article VII on
the Executive Branch, reveals that the two are differently worded and deal with
separate powers of the Executive and the Judicial Branches of government. And
as previously adverted to, the basis for the constitution of the PET was, in fact,
mentioned in the deliberations of the Members of the Constitutional Commission
during the drafting of the present Constitution.
WHEREFORE, the Motion for Reconsideration is DENIED. Our Decision in
G.R. No. 191618 STANDS.
SO ORDERED.
Corona (C.J.), Carpio, Carpio-Morales, Velasco, Jr.,
Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr.,
Perez, Mendoza and Sereno, JJ., concur.
Motion for Reconsideration denied, judgment stands.
_______________
7 Id.
8 Supra note 3.
254
254 SUPREME COURT REPORTS ANNOTATED
Macalintal vs. Presidential Electoral Tribunal
Note.—The constitutional function as well as the power and the duty to be the
sole judge of all contests relating to the election, returns and qualification of the
President and Vice-President is expressly vested in the PET, in Section 4, Article
VII of the Constitution. (Legarda vs. De Castro, 454 SCRA 242 [2005])
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights reserved.

SO ORDERED.
Puno (C.J., Chairperson), Nachura,** Bersamin and Villarama, Jr., JJ.,
concur.
Petition granted, judgment reversed and set aside.
Note.—A complaint must allege the assessed value of the real property subject
of the complaint or the interest thereon to determine which court has jurisdiction
over the action. (Quinagoran vs. Court of Appeals, 531 SCRA 104 [2007])
——o0o——
G.R. No. 184740. February 11, 2010.*
DENNIS A. B. FUNA, petitioner, vs. EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Office of the President, SEC. LEANDRO R. MENDOZA, in his official
capacity as Secretary of the Department of Transportation and Communications,
USEC. MARIA ELENA H. BAUTISTA, in her official capacities as Undersecretary
of the Department of Transportation and Communications and as Officer-in-
Charge of the Maritime Industry Authority (MARINA), respondents.
Justiciable Controversy; Moot and Academic; A moot and academic case is
one that ceases to present a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical use or value. Generally, courts
decline jurisdiction over such case or dismiss it on ground of mootness.—A moot
and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, so that a declaration thereon would be of no practical use
or value. Generally, courts decline jurisdiction over such case or dismiss it on
ground of mootness. However, as we held in
_______________
** Additional member per Special Order No. 821.
* EN BANC.
309Public Interest Center, Inc. v. Elma, 494 SCRA 53 (2006) supervening
events, whether intended or accidental, cannot prevent the Court from rendering
a decision if there is a grave violation of the Constitution. Even in cases where
supervening events had made the cases moot, this Court did not hesitate to resolve
the legal or constitutional issues raised to formulate controlling principles to guide
the bench, bar, and public.
Administrative Law; Incompatible Office; While the designation was in the
nature of an acting and temporary capacity, the words “hold the office” were
employed. Such holding of office pertains to both appointment and designation
because the appointee or designate performs the duties and functions of the office.
The 1987 Constitution in prohibiting dual or multiple offices, as well as
incompatible offices, refers to the holding of the office, and not to the nature of the
appointment or designation, words which were not even found in Section 13, Article
VII nor in Section 7, paragraph 2, Article IX-B. To “hold” an office means to “possess
or occupy” the same, or “to be in possession and administration,” which implies
nothing less than the actual discharge of the functions and duties of the office.—
Respondents’ reliance on the foregoing definitions is misplaced considering that
the above-cited case addressed the issue of whether petitioner therein acquired
valid title to the disputed position and so had the right to security of tenure. It
must be stressed though that while the designation was in the nature of an acting
and temporary capacity, the words “hold the office” were employed. Such holding
of office pertains to both appointment and designation because the appointee or
designate performs the duties and functions of the office. The 1987 Constitution in
prohibiting dual or multiple offices, as well as incompatible offices, refers to the
holding of the office, and not to the nature of the appointment or designation,
words which were not even found in Section 13, Article VII nor in Section 7,
paragraph 2, Article IX-B. To “hold” an office means to “possess or occupy” the
same, or “to be in possession and administration,” which implies nothing less than
the actual discharge of the functions and duties of the office.
Same; Presidency; Holding of Other Office; Evidently, from this move as well
as in the different phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter prohibition of the
President and his official family in so far as holding other offices or employment in
the gov-
310ernment or elsewhere is concerned.—Evidently, from this move as well as
in the different phraseologies of the constitutional provisions in question, the
intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far
as holdingother offices or employment in the government or elsewhere is
concerned.
CARPIO-MORALES, J., Concurring Opinion:
Public Officers; “Designation” Defined.—Designation may be loosely defined
as an appointment because it likewise involves the naming of a particular person
to a specified public office. In fact, even without a known appointment or election,
the de facto doctrine comes into play if the duties of the office were exercised under
such circumstances of reputation or acquiescence as were calculated to induce
people, without inquiry, to submit to or invoke his action, supposing him to be the
officer he assumed to be.
Same; Effect of assuming a second office which is incompatible with the act.—
The other proposition—that a person who assumes a second and incompatible
office is deemed to have resigned from the first office—was applied in Public
Interest Center, Inc. v. Elma, 494 SCRA 53 (2006) where the Court, by Resolution
of March 5, 2007, clarified that the ruling did not render both appointments void.
It held that “[f]ollowing the common-law rule on incompatibility of offices,
respondent Elma had, in effect, vacated his first office as PCGG Chairman when
he accepted the second office” as Chief Presidential Legal Counsel.
Same; Rule when acceptance of a second public office does not apply.—It has
also been observed that the rule of ipso facto vacancy of a public office by
acceptance of a second public office does not apply where, under applicable
constitutional or statutory provisions, the holder of a public office is rendered
ineligible for a specified time for a second public office; under such circumstances
it is the second office which is considered vacant rather than the first office. I,
therefore, vote to GRANT the petition and further declare that Bautista was a de
facto officer during her brief stint as MARINA OIC Administrator and a de
jure DOTC Undersecretary during her entire tenure as such.
311
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari, Prohibition and
Mandamus.
The facts are stated in the opinion of the Court.
Funa, Tantuan & Fortes for petitioner.
The Solicitor General for respondents.
VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 with
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction, to declare as unconstitutional the designation of respondent
Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the
Maritime Industry Authority (MARINA).
The Antecedents
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent
Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of
Transportation and Communications (DOTC), vice Agustin R. Bengzon. Bautista
was designated as Undersecretary for Maritime Transport of the department
under Special Order No. 2006-171 dated October 23, 2006.1
On September 1, 2008, following the resignation of then MARINA
Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge
(OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC
Undersecretary.2
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned
citizen and lawyer, filed the instant petition challenging the constitutionality of
Bautista’s ap-
_______________
1 Rollo, pp. 99 and 101.
2 Id., at p. 100.
312pointment/designation, which is proscribed by the prohibition on the
President, Vice President, the Members of the Cabinet, and their deputies and
assistants to hold any other office or employment.
On January 5, 2009, during the pendency of this petition, Bautista was
appointed Administrator of the MARINA vice Vicente T. Suazo, Jr.3 and she
assumed her duties and responsibilities as such on February 2, 2009. 4
The Case
Petitioner argues that Bautista’s concurrent positions as DOTC
Undersecretary and MARINA OIC is in violation of Section 13, Article VII of
the 1987 Constitution, as interpreted and explained by this Court in Civil Liberties
Union v. Executive Secretary,5 and reiterated in Public Interest Center, Inc. v.
Elma.6 He points out that while it was clarified in Civil Liberties Union that the
prohibition does not apply to those positions held in ex officio capacities, the
position of MARINA Administrator is not ex officio to the post of DOTC
Undersecretary, as can be gleaned from the provisions of its charter, Presidential
Decree (P.D.) No. 474,7 as amended by Executive Order (EO) No. 125-
A.8 Moreover, the provisions on the DOTC in the Administrative Code of 1987,
specifically Sections 23 and 24, Chapter 6, Title XV, Book IV do not provide any ex
officio role for the undersecretaries in any of the department’s attached agencies.
The fact that Bautista was extended an appointment naming her as OIC of
MARINA shows that she does not occupy
_______________
3 Id., at p. 102.
4 Id., at pp. 103-104.
5 G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317.
6 G.R. No. 138965, June 30, 2006, 494 SCRA 53.
7 PROVIDING FOR THE REORGANIZATION OF MARITIME FUNCTIONS IN THE
PHILIPPINES, CREATING THE MARITIME INDUSTRY AUTHORITY, AND FOR OTHER
PURPOSES, approved on June 1, 1974.
8 Approved on April 13, 1987.
313it in an ex officio capacity since an ex officio position does not require any
“further warrant or appoint.”9
Petitioner further contends that even if Bautista’s appointment or designation
as OIC of MARINA was intended to be merely temporary, still, such designation
must not violate a standing constitutional prohibition, citing the rationale
in Achacoso v. Macaraig.10 Section 13, Article VII of the 1987 Constitution does not
enumerate temporariness as one (1) of the exceptions thereto. And since a
temporary designation does not have a maximum duration, it can go on for months
or years. In effect, the temporary appointment/designation can effectively
circumvent the prohibition. Allowing undersecretaries or assistant secretaries to
occupy other government posts would open a Pandora’s Box as to let them feast on
choice government positions. Thus, in case of vacancy where no permanent
appointment could as yet be made, the remedy would be to designate one (1) of the
two (2) Deputy Administrators as the Acting Administrator. Such would be the
logical course, the said officers being in a better position in terms of knowledge and
experience to run the agency in a temporary capacity. Should none of them merit
the President’s confidence, then the practical remedy would be for Undersecretary
Bautista to first resign as Undersecretary in order to qualify her as Administrator
of MARINA. As to whether she in fact does not receive or has waived any
remuneration, the same does not matter because remuneration is not an element
in determining whether there has been a violation of Section 13, Article VII of
the 1987 Constitution.11
Petitioner likewise asserts the incompatibility between the posts of DOTC
Undersecretary and MARINA Administrator. The reason is that with respect to
the affairs in the maritime industry, the recommendations of the MARINA may be
_______________
9 Rollo, pp. 14-27.
10 G.R. No. 93023, March 13, 1991, 195 SCRA 235.
11 Rollo, pp. 34-37.
314the subject of counter or opposing recommendations from the Undersecretary
for Maritime Transport. In this case, the DOTC Undersecretary for Maritime
Transport and the OIC of MARINA have become one (1) and the same person.
There is no more checking and counter-checking of powers and functions, and
therein lies the danger to the maritime industry. There is no longer a person above
the Administrator of MARINA who will be reviewing the acts of said agency
because the person who should be overseeing MARINA, the Undersecretary for
Maritime Transport, has effectively been compromised.12
Finally, petitioner contends that there is a strong possibility in this case that
the challenge herein can be rendered moot through the expediency of simply
revoking the temporary appointment/designation. But since a similar violation can
be committed in the future, there exists a possibility of “evading review,” and hence
supervening events should not prevent the Court from deciding cases involving
grave violation of the 1987 Constitution, as this Court ruled in Public Interest
Center. Notwithstanding its mootness therefore, should it occur, there is a
compelling reason for this case to be decided: the issue raised being “capable of
repetition, yet evading review.”13
On the other hand, the respondents argue that the requisites of a judicial
inquiry are not present in this case. In fact, there no longer exists an actual
controversy that needs to be resolved in view of the appointment of respondent
Bautista as MARINA Administrator effective February 2, 2009 and the
relinquishment of her post as DOTC Undersecretary for Maritime Transport,
which rendered the present petition moot and academic. Petitioner’s prayer for a
temporary restraining order or writ of preliminary injunction is likewise moot and
_______________
12 Id., at pp. 38-40.
13 Id., at pp. 40-42.
315academic since, with this supervening event, there is nothing left to enjoin.14
Respondents also raise the lack of legal standing of petitioner to bring this suit.
Clear from the standard set in Public Interest Center is the requirement that the
party suing as a taxpayer must prove that he has sufficient interest in preventing
illegal expenditure of public funds, and more particularly, his personal and
substantial interest in the case. Petitioner, however, has not alleged any personal
or substantial interest in this case. Neither has he claimed that public funds were
actually disbursed in connection with respondent Bautista’s designation as
MARINA OIC. It is to be noted that respondent Bautista did not receive any salary
while she was MARINA OIC. As to the alleged transcendental importance of an
issue, this should not automatically confer legal standing on a party.15
Assuming for the sake of argument that the legal question raised herein needs
to be resolved, respondents submit that the petition should still be dismissed for
being unmeritorious considering that Bautista’s concurrent designation as
MARINA OIC and DOTC Undersecretary was constitutional. There was no
violation of Section 13, Article VII of the 1987 Constitution because respondent
Bautista was merely designated acting head of MARINA on September 1, 2008.
She was designated MARINA OIC, not appointed MARINA Administrator. With
the resignation of Vicente T. Suazo, Jr., the position of MARINA Administrator
was left vacant, and pending the appointment of permanent Administrator,
respondent Bautista was designated OIC in a temporary capacity for the purpose
of preventing a hiatus in the discharge of official functions. Her case thus falls
under the recognized exceptions to the rule against multiple offices, i.e., without
additional compensation (she did not receive any emolument as MA-
_______________
14 Id., at pp. 86-87.
15 Id., at pp. 88-89.
316RINA OIC) and as required by the primary functions of the office. Besides,
Bautista held the position for four (4) months only, as in fact when she was
appointed MARINA Administrator on February 2, 2009, she relinquished her post
as DOTC Undersecretary for Maritime Transport, in acknowledgment of the
proscription on the holding of multiple offices.16
As to petitioner’s argument that the DOTC Undersecretary for Maritime
Transport and MARINA Administrator are incompatible offices, respondents cite
the test laid down in People v. Green,17which held that “[T]he offices must
subordinate, one [over] the other, and they must, per se, have the right to interfere,
one with the other, before they are compatible at common law.” Thus, respondents
point out that any recommendation by the MARINA Administrator concerning
issues of policy and administration go to the MARINA Board and not the
Undersecretary for Maritime Transport. The Undersecretary for Maritime
Transport is, in turn, under the direct supervision of the DOTC Secretary.
Petitioner’s fear that there is no longer a person above the Administrator of
MARINA who will be reviewing the acts of said agency (the Undersecretary for
Maritime Transport) is, therefore, clearly unfounded.18
In his Reply, petitioner contends that respondents’ argument on the
incompatibility of positions was made on the mere assumption that the positions
of DOTC Undersecretary for Maritime Transport and the administratorship of
MARINA are “closely related” and is governed by Section 7, paragraph 2, Article
IX-B of the 1987 Constitution rather than by Section 13, Article VII. In other
words, it was a mere secondary argument. The fact remains that, incompatible or
not, Section 13, Article VII still does not allow the herein challenged designation. 19
_______________
16 Id., at pp. 90-93.
17 13 Sickels 295, 58 N.Y. 295, 1874 WL 11282 (N.Y.).
18 Id., at pp. 93-95.
19 Id., at pp. 127-128.
317 The sole issue to be resolved is whether or not the designation of
respondent Bautista as OIC of MARINA, concurrent with the position of DOTC
Undersecretary for Maritime Transport to which she had been appointed, violated
the constitutional proscription against dual or multiple offices for Cabinet
Members and their deputies and assistants.
Our Ruling
The petition is meritorious.
Requisites for Judicial Review
 The courts’ power of judicial review, like almost all other powers conferred by
the Constitution, is subject to several limitations, namely: (1) there must be an
actual case or controversy calling for the exercise of judicial power; (2) the person
challenging the act must have “standing” to challenge; he must have a personal
and substantial interest in the case, such that he has sustained or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.20 Respondents assert that
the second requisite is absent in this case.
Generally, a party will be allowed to litigate only when (1) he can show that he
has personally suffered some actual or threatened injury because of the allegedly
illegal conduct of the government; (2) the injury is fairly traceable to the challenged
action; and (3) the injury is likely to be redressed by a
_______________
20 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., G.R. Nos. 160261-160263, 160277, 160292, 160295,
160310, 160318, 160342, 160343, 160360, 160365, 160370, 160376, 160392,
160397, 160403 and 160405, November 10, 2003, 415 SCRA 44, 133 citing Angara
v. Electoral Commission, 63 Phil. 139 (1936).
318favorable action.21 The question on standing is whether such parties have
“alleged such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions.”22
In David v. Macapagal-Arroyo,23 summarizing the rules culled from
jurisprudence, we held that taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following requirements are
met:
(1) cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds
or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of
the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised
are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained
of infringes upon their prerogatives as legislators. [EMPHASIS SUPPLIED.]
Petitioner having alleged a grave violation of the constitutional prohibition
against Members of the Cabinet, their deputies and assistants holding two (2) or
more positions in government, the fact that he filed this suit as a concerned citizen
sufficiently confers him with standing to sue for redress of such illegal act by public
officials.
_______________
21 Tolentino v. Commission on Elections, 465 Phil. 385, 402; 420 SCRA 438,
452 (2004).
22 Kilosbayan, Incorporated v. Morato, G.R. No. 118910, July 17, 1995, 246
SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 663 (1962).
23 G.R. No. 171396 and six (6) other cases, May 3, 2006, 489 SCRA 160, 220-
221.
319
The other objection raised by the respondent is that the resolution of this case
had been overtaken by events considering the effectivity of respondent Bautista’s
appointment as MARINA Administrator effective February 2, 2009 and her
relinquishment of her former position as DOTC Undersecretary for Maritime
Transport.
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events, so that a declaration thereon would be of no
practical use or value. Generally, courts decline jurisdiction over such case or
dismiss it on ground of mootness.24 However, as we held in Public Interest Center,
Inc. v. Elma,25 supervening events, whether intended or accidental, cannot prevent
the Court from rendering a decision if there is a grave violation of the Constitution.
Even in cases where supervening events had made the cases moot, this Court did
not hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar, and public.26
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. 27 In the present
case,
_______________
24 David v. Macapagal-Arroyo, supra at 213-214, citing Province of Batangas
v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736, Banco Filipino Savings
and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA
129, Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March 23, 2004, 426
SCRA 91; Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415
SCRA 590, Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-
56, January 26, 2004, 421 SCRA 21 and Lacson v. Perez, G.R. No. 147780, May 10,
2001, 357 SCRA 756.
25 G.R. No. 138965, June 30, 2006, 494 SCRA 53.
26 Id., at p. 58, citing Province of Batangas v. Romulo, supra at 757
and Chavez v. Public Estates Authority, 433 Phil. 506, 522; 384 SCRA 152, 177
(2002).
27 Pimentel, Jr. v. Ermita, G.R. No. 164978, October 13, 2005, 472 SCRA 587,
593, citing Tolentino v. Commission on Elections,
320the mootness of the petition does not bar its resolution. The question of the
constitutionality of the President’s appointment or designation of a Department
Undersecretary as officer-in-charge of an attached agency will arise in every such
appointment.28
Undersecretary Bautista’s designation
as MARINA OIC falls under the stricter prohibition
under Section 13, Article
VII of the 1987 Constitution.
 Resolution of the present controversy hinges on the correct application of
Section 13, Article VII of the 1987 Constitution, which provides:
“Sec. 13. The President, Vice President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly practice any other
profession, participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.”
On the other hand, Section 7, paragraph (2), Article IX-B reads:
“Sec. 7. x x x
_______________
G.R. No. 148334, January 21, 2004, 420 SCRA 438, Gil v. Benipayo, G.R. No.
148179, June 26, 2001 (Unsigned Resolution), Chief Supt. Acop v. Secretary
Guingona, Jr., 433 Phil. 62; 383 SCRA 577 (2002), Viola v. Hon. Alunan III, 343
Phil. 184; 277 SCRA 409 (1997) and Alunan III v. Mirasol, 342 Phil. 467; 276 SCRA
501 (1997).
28 Id., at p. 593.
321 Unless otherwise allowed by law or the primary functions of his
position, no appointive official shall hold any other office or employment in the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.”
In Civil Liberties Union, a constitutional challenge was brought before this
Court to nullify EO No. 284 issued by then President Corazon C. Aquino on July
25, 1987, which included Members of the Cabinet, undersecretaries and assistant
secretaries in its provisions limiting to two (2) the positions that appointive
officials of the Executive Department may hold in government and government
corporations. Interpreting the above provisions in the light of the history and times
and the conditions and circumstances under which the Constitution was framed,
this Court struck down as unconstitutional said executive issuance, saying that it
actually allows them to hold multiple offices or employment in direct contravention
of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in
the 1987 Constitution itself.
Noting that the prohibition imposed on the President and his official family is
all-embracing, the disqualification was held to be absolute, as the holding of “any
other office” is not qualified by the phrase “in the Government” unlike in Section
13, Article VI prohibiting Senators and Members of the House of Representatives
from holding “any other office or employment in the Government”; and when
compared with other officials and employees such as members of the armed forces
and civil service employees, we concluded thus:
“These sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the civil
service in general and members of the armed forces, are proof of the intent of the
1987 Constitution to treat the President and his official family as a class
by itself and to impose upon said class stricter prohibitions.322 Such
intent of the 1986 Constitutional Commission to be stricter with the President and
his official family was also succinctly articulated by Commissioner Vicente Foz
after Commissioner Regalado Maambong noted during the floor deliberations and
debate that there was no symmetry between the Civil Service prohibitions,
originally found in the General Provisions and the anticipated report on the
Executive Department. Commissioner Foz Commented, “We actually have to be
stricter with the President and the members of the Cabinet because they exercise
more powers and, therefore, more checks and restraints on them are called for
because there is more possibility of abuse in their case.”
Thus, while all other appointive officials in the civil service are
allowed to hold other office or employment in the government during
their tenure when such is allowed by law or by the primary functions of
their positions, members of the Cabinet, their deputies and assistants
may do so only when expressly authorized by the Constitution itself. In
other words, Section 7, Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public officials and employees,
while Section 13, Article VII is meant to be the exception applicable only
to the President, the Vice President, Members of the Cabinet, their
deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose
a stricter prohibition on the President, Vice President, members of the Cabinet,
their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section
13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple government
offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal
negation. The phrase “unless otherwise provided in this Constitution” must be
given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice President being appointed as a member of the
Cabinet under Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary
of Justice
323being ex-officio member of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.”29 [EMPHASIS SUPPLIED.]
Respondent Bautista being then the appointed Undersecretary of DOTC, she
was thus covered by the stricter prohibition under Section 13, Article VII and
consequently she cannot invoke the exception provided in Section 7, paragraph 2,
Article IX-B where holding another office is allowed by law or the primary
functions of the position. Neither was she designated OIC of MARINA in an ex
officio capacity, which is the exception recognized in Civil Liberties Union.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the 1987 Constitutionwas held inapplicable to posts
occupied by the Executive officials specified therein, without additional
compensation in an ex officiocapacity as provided by law and as required by the
primary functions of said office. The reason is that these posts do not comprise
“any other office” within the contemplation of the constitutional prohibition but
are properly an imposition of additional duties and functions on said
officials.30 Apart from their bare assertion that respondent Bautista did not receive
any compensation when she was OIC of MARINA, respondents failed to
demonstrate clearly that her designation as such OIC was in an ex
officio capacity as required by the primary functions of her office as DOTC
Undersecretary for Maritime Transport.
MARINA was created by virtue of P.D. No. 474 issued by President Ferdinand
E. Marcos on June 1, 1974. It is mandated to undertake the following:
(a) Adopt and implement a practicable and coordinated Maritime Industry
Development Program which shall include, among others, the early
replacement of obsolescent
_______________
29 Civil Liberties Union v. Executive Secretary, supra at 328-329, 331.
30 Id., at pp. 331-332.
324and uneconomic vessels; modernization and expansion of the
Philippine merchant fleet, enhancement of domestic capability for
shipbuilding, repair and maintenance; and the development of reservoir of
trained manpower;
(b) Provide and help provide the necessary; (i) financial assistance to the
industry through public and private financing institutions and
instrumentalities; (ii) technological assistance; and (iii) in general, a
favorable climate for expansion of domestic and foreign investments in
shipping enterprises; and
(c) Provide for the effective supervision, regulation and rationalization of the
organizational management, ownership and operations of all water
transport utilities, and other maritime enterprises.31
The management of MARINA is vested in the Maritime Administrator, who
shall be directly assisted by the Deputy Administrator for Planning and a Deputy
Administrator for Operations, who shall be appointed by the President for a term
of six (6) years. The law likewise prescribes the qualifications for the office,
including such “adequate training and experience in economics, technology,
finance, law, management, public utility, or in other phases or aspects of the
maritime industry,” and he or she is entitled to receive a fixed annual salary. 32 The
Administrator shall be directly responsible to the Maritime Industry Board,
MARINA’s governing body, and shall have powers, functions and duties as
provided in P.D. No. 474, which provides, under Sections 11 and 12, for his or her
general and specific functions, respectively, as follows:
“Sec. 11. General Powers and Functions of the Administrator.—Subject to
the general supervision and control of the Board, the Administrators shall have
the following general powers, functions and duties;
_______________
31 P.D. No. 474, Sec. 2.
32 Id., SECS. 8 and 9.
325
a. To implement, enforce and apply the policies, programs, standards,
guidelines, procedures, decisions and rules and regulations issued,
prescribed or adopted by the Board pursuant to this Decree;
b. To undertake researches, studies, investigations and other activities and
projects, on his own initiative or upon instructions of the Board, and to
submit comprehensive reports and appropriate recommendations to the
Board for its information and action;
c. To undertake studies to determine present and future requirements for
port development including navigational aids, and improvement of
waterways and navigable waters in consultation with appropriate agencies;
d. To pursue continuing research and developmental programs on expansion
and modernization of the merchant fleet and supporting facilities taking
into consideration the needs of the domestic trade and the need of regional
economic cooperation schemes; and
e. To manage the affairs of the Authority subject to the provisions of this
Decree and applicable laws, orders, rules and regulations of other
appropriate government entities.
Sec. 12. Specific Powers and Functions of the Administrator.—In addition to
his general powers and functions, the Administrator shall;
a. Issue Certificate of Philippine Registry for all vessels being used in
Philippine waters, including fishing vessels covered by Presidential Decree
No. 43 except transient civilian vessels of foreign registry, vessels owned
and/or operated by the Armed Forces of the Philippines or by foreign
governments for military purposes, and bancas, sailboats and other
watercraft which are not motorized, of less than three gross tons;
b. Provide a system of assisting various officers, professionals, technicians,
skilled workers and seamen to be gainfully employed in shipping
enterprises, priority being given to domestic needs;
c. In collaboration and coordination with the Department of Labor, to look
into, and promote improvements in the
326working conditions and terms of employment of the officers and crew
of vessels of Philippine registry, and of such officers and crew members who
are Philippine citizens and employed by foreign flag vessels, as well as of
personnel of other shipping enterprises, and to assist in the settlement of
disputes between the shipowners and ship operators and such officers and
crew members and between the owner or manager of other shipping
enterprises and their personnel;
d. To require any public water transport utility or Philippine flag vessels to
provide shipping services to any coastal areas in the country where such
services are necessary for the development of the area, to meet emergency
sealift requirements, or when public interest so requires;
e. Investigate by itself or with the assistance of other appropriate
government agencies or officials, or experts from the private sector, any
matter within its jurisdiction, except marine casualties or accidents which
shall be undertaken by the Philippine Coast Guard;
f. Impose, fix, collect and receive in accordance with the schedules approved
by the Board, from any shipping enterprise or other persons concerned,
such fees and other charges for the payment of its services;
 g. Inspect, at least annually, the facilities of port and cargo operators and
recommend measures for adherence to prescribed standards of safety,
quality and operations;
h. Approve the sale, lease or transfer of management of vessels owned by
Philippine Nationals to foreign owned or controlled enterprises;
i. Prescribe and enforce rules and regulations for the prevention of marine
pollution in bays, harbors and other navigable waters of the Philippines, in
coordination with the government authorities concerned;
j. Establish and maintain, in coordination with the appropriate government
offices and agencies, a system of regularly and promptly producing,
collating, analyzing and disseminating traffic flows, port operations,
marine in-
327surance services and other information on maritime matters;
k. Recommend such measures as may be necessary for the regulation of the
importation into and exportation from the Philippines of vessels, their
equipment and spare parts;
l. Implement the rules and regulations issued by the Board of Transportation;
m. Compile and codify all maritime laws, orders, rules and regulations,
decisions in leasing cases of courts and the Authority’s procedures and
other requirements relative to shipping and other shipping enterprises,
make them available to the public, and, whenever practicable to publish
such materials;
n. Delegate his powers in writing to either of the Deputy Administrators or
any other ranking officials of the Authority; Provided, That he informs the
Board of such delegation promptly; and
o. erform such other duties as the Board may assign, and such acts as may be
necessary and proper to implement this Decree.
With the creation of the Ministry (now Department) of Transportation and
Communications by virtue of EO No. 546, MARINA was attached to the DOTC for
policy and program coordination on July 23, 1979. Its regulatory function was
likewise increased with the issuance of EO No. 1011 which abolished the Board of
Transportation and transferred the quasi-judicial functions pertaining to water
transportation to MARINA. On January 30, 1987, EO No. 125 (amended by EO
No. 125-A) was issued reorganizing the DOTC. The powers and functions of the
department and the agencies under its umbrella were defined, further increasing
the responsibility of MARINA to the industry. Republic Act No. 9295, otherwise
known as the “The Domestic Shipping Development Act of
3282004,”33 further strengthened MARINA’s regulatory powers and functions in
the shipping sector.
Given the vast responsibilities and scope of administration of the Authority,
we are hardly persuaded by respondents’ submission that respondent Bautista’s
designation as OIC of MARINA was merely an imposition of additional duties
related to her primary position as DOTC Undersecretary for Maritime Transport.
It appears that the DOTC Undersecretary for Maritime Transport is not even a
member of the Maritime Industry Board, which includes the DOTC Secretary as
Chairman, the MARINA Administrator as Vice-Chairman, and the following as
members: Executive Secretary (Office of the President), Philippine Ports Authority
General Manager, Department of National Defense Secretary, Development Bank
of the Philippines General Manager, and the Department of Trade and Industry
Secretary.34
Finally, the Court similarly finds respondents’ theory that being just a
“designation,” and temporary at that, respondent Bautista was never really
“appointed” as OIC Administrator of MARINA, untenable. In Binamira v.
Garrucho, Jr.,35 we distinguished between the
terms appointment and designation, as follows:
“Appointment may be defined as the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office. When
completed, usually with its confirmation, the appointment results in security of
tenure for the person chosen unless he is replaceable at pleasure because of the
nature of his office. Designation, on the other hand, connotes merely the impo-
_______________
33 AN ACT PROMOTING THE DEVELOPMENT OF PHILIPPINE DOMESTIC SHIPPING,
SHIPBUILDING, SHIP REPAIR AND SHIP BREAKING, ORDAINING REFORMS IN
GOVERNMENT POLICIES TOWARDS SHIPPING IN THE PHILIPPINES, AND FOR OTHER
PURPOSES, approved on May 3, 2004.
34 Reference: 2006 MARINA Annual Report, sourced from the Internet
athttp://www.marina.gov.ph/services/results.aspx?k=MARINA%20annual%20rep
ort&start1=1>.
35 G.R. No. 92008, July 30, 1990, 188 SCRA 154.
329sition by law of additional duties on an incumbent official, as where, in the
case before us, the Secretary of Tourism is designated Chairman of the Board of
Directors of the Philippine Tourism Authority, or where, under the Constitution,
three Justices of the Supreme Court are designated by the Chief Justice to sit in
the Electoral Tribunal of the Senate or the House of Representatives. It is said that
appointment is essentially executive while designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise
involves the naming of a particular person to a specified public office. That is the
common understanding of the term. However, where the person is merely
designated and not appointed, the implication is that he shall hold the
office only in a temporary capacity and may be replaced at will by the appointing
authority. In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person
named.”36 [emphasis supplied.]
Clearly, respondents’ reliance on the foregoing definitions is misplaced
considering that the above-cited case addressed the issue of whether petitioner
therein acquired valid title to the disputed position and so had the right to security
of tenure. It must be stressed though that while the designation was in the nature
of an acting and temporary capacity, the words “hold the office” were employed.
Such holding of office pertains to both appointment and designation because the
appointee or designate performs the duties and functionsof the office. The 1987
Constitution in prohibiting dual or multiple offices, as well as incompatible offices,
refers to the holding of the office, and not to the nature of the appointment or
designation, words which were not even found in Section 13, Article VII nor in
Section 7, paragraph 2, Article IX-B. To “hold” an office means to “possess or
occupy” the same, or “to be in possession and administration,” 37 which implies
nothing less than the actual discharge of the functions and duties of the office.
_______________
36 Id., at pp. 158-159.
37 BLACK’S LAW DICTIONARY, Eighth Edition, p. 749.
330 The disqualification laid down in Section 13, Article VII is aimed at
preventing the concentration of powers in the Executive Department officials,
specifically the President, Vice President, Members of the Cabinet and their
deputies and assistants. Civil Liberties Union traced the history of the times and
the conditions under which the Constitution was framed, and construed the
Constitution consistent with the object sought to be accomplished by adoption of
such provision, and the evils sought to be avoided or remedied. We recalled the
practice, during the Marcos regime, of designating members of the Cabinet, their
deputies and assistants as members of the governing bodies or boards of various
government agencies and instrumentalities, including government-owned or
controlled corporations. This practice of holding multiple offices or positions in the
government led to abuses by unscrupulous public officials, who took advantage of
this scheme for purposes of self-enrichment. The blatant betrayal of public trust
evolved into one of the serious causes of discontent with the Marcos regime. It was
therefore quite inevitable and in consonance with the overwhelming sentiment of
the people that the 1986 Constitutional Commission would draft into the proposed
Constitution the provisions under consideration, which were envisioned to remedy,
if not correct, the evils that flow from the holding of multiple governmental offices
and employment.38 Our declaration in that case cannot be more explicit:
“But what is indeed significant is the fact that although Section 7, Article IX-
B already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice
President, members of the Cabinet, their deputies and assistants from
_______________
38 Civil Liberties Union v. Executive Secretary, supra at 326-327.
331holding any other office or employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and
his official family in so far as holding other offices or employment in the
government or elsewhere is concerned.”39 [emphasis supplied.]
Such laudable intent of the law will be defeated and rendered sterile if we are
to adopt the semantics of respondents. It would open the veritable floodgates of
circumvention of an important constitutional disqualification of officials in the
Executive Department and of limitations on the President’s power of appointment
in the guise of temporary designations of Cabinet Members, undersecretaries and
assistant secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations.
As to respondents’ contention that the concurrent positions of DOTC
Undersecretary for Maritime Transport and MARINA OIC Administrator are not
incompatible offices, we find no necessity for delving into this matter.
Incompatibility of offices is irrelevant in this case, unlike in the case of PCGG
Chairman Magdangal Elma in Public Interest Center, Inc. v. Elma.40 Therein we
held that Section 13, Article VII is not applicable to the PCGG Chairman or to the
Chief Presidential Legal Counsel, as he is not a cabinet member, undersecretary
or assistant secretary.41
WHEREFORE, the petition is GRANTED. The designation of respondent Ma.
Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime
Industry Authority, in a concurrent capacity with her position as DOTC
Undersecretary for Maritime Transport, is hereby declared
UNCONSTITUTIONAL
_______________
39 Id., at p. 327.
40 Supra note 6.
41 Id., at p. 62.
332for being violative of Section 13, Article VII of the 1987 Constitution and
therefore, NULL and VOID.
No costs.
SO ORDERED.
Puno (C.J.), Carpio, Velasco, Jr., Nachura, Leonardo-De Castro, Brion,
Peralta, Bersamin, Del Castillo, Abad, Perez andMendoza, JJ., concur.
Corona, J., No Part.
Carpio-Morales, J., Please see concurring opinion.
CONCURRING OPINION
CARPIO-MORALES, J.:
I concur with Justice Martin Villarama, Jr. in his ponenciadeclaring
unconstitutional the designation of respondent Maria Elena Bautista (Bautista) as
Officer-in-Charge (OIC) of the Office of the Administrator of the Maritime Industry
Authority (MARINA) in a concurrent capacity with her position as Undersecretary
for Maritime Transport of the Department of Transportation and Communications
(DOTC).
A quick rundown of the facts shows that Bautista was appointed as DOTC
Undersecretary in October 2006 and was designated as OIC Administrator of
MARINA on September 1, 2008. On January 5, 2009, she was appointed as
Administrator of MARINA, the duties and responsibilities of which position she
assumed on February 2, 2009 following her relinquishment of the position of DOTC
Undersecretary.
Bautista thus now claims mootness of the case. 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. Aside from the
formulation of controlling principles, the grave violation of the Constitution, and
the susceptibility of recurrence as pointed
333out by Justice Villarama, there is the presence of practical use or value to
impel the Court to take cognizance of this case.
Its mootness notwithstanding, the present petition which involves the issue of
holding dual positions still calls for a resolution, for there remains the practical
use or value of identifying whether one was a de facto or de jure officer in terms of
the legal signification of the public officer’s acts, remuneration and accountability.
Bautista, during her tenure as OIC Administrator of MARINA, cannot be
considered as a de jure officer due to the unconstitutionality of the designation. At
best, she can be regarded as a de facto officer in such capacity from September 1,
2008 until she assumed her subsequent appointment as MARINA Administrator
on February 2, 2009.
National Amnesty Commission v. Commission on Audit1 espouses the view
that one who was not appointed but merely designated to act as such cannot be
considered as a de facto officer. To sustain this view, however, would place in limbo
the legal effects of a designated officer’s acts and would negate the raison d’etre of
the de factodoctrine which is basically to protect the sanctity of dealings by the
public with persons whose ostensible authority emanates from the State. 2 To
deduce that Bautista, as a designated OIC Administrator, was not a de facto officer
would effectively categorize her as an intruder or a mere volunteer, which she was
not because she had a color of right or authority.
A de facto officer need not show that she was elected or “appointed in its strict
sense,” for a showing of a color of right to the office suffices.
Designation may be loosely defined as an appointment because it likewise
involves the naming of a particular person to
_______________
1 G.R. No. 156982, September 8, 2004, 437 SCRA 655, 670.
2 Vide Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574 SCRA 817,
830.
334a specified public office.3 In fact, even without a known appointment or
election, the de facto doctrine comes into play if the duties of the office were
exercised under such circumstances of reputation or acquiescence as were
calculated to induce people, without inquiry, to submit to or invoke his action,
supposing him to be the officer he assumed to be.4
I submit that the pronouncement in National Amnesty Commission comes in
the form of an obiter dictum5 since it was not necessary to the disposition of that
case where the Court disallowed the payment of honoraria to the representatives
of the ex-officiomembers of the National Amnesty Commission and ruled that the
restrictions6 covering the ex-officio members apply with equal force to their
representatives since the representative cannot have a better right than his or her
principal.
_______________
3 Binamira v. Garrucho, Jr., G.R. No. 92008, July 30, 1990, 188 SCRA 154,
159, where the person is merely designated and not appointed, the implication is
that he shall hold the office only in a temporary capacity and may be replaced at
will by the appointing authority.
4 Vide Lino Luna v. Rodriguez and De los Angeles, 37 Phil. 186, 192 (1917).
5 An obiter dictum has been defined as an opinion expressed by a court upon
some question of law which is not necessary to the decision of the case before it. It
is a remark made, or opinion expressed, by a judge, in his decision upon a cause,
“by the way,” that is, incidentally or collaterally, and not directly upon the question
before him, or upon a point not necessarily involved in the determination of the
cause, or introduced by way of illustration, or analogy or argument. Such are not
binding as precedent. (Delta Motors Corporation v. Court of Appeals, G.R. No.
121075, July 24, 1997, 276 SCRA 212, 223).
6 With respect to the exception enunciated in the Civil Liberties Union case
allowing posts occupied by the Executive officials specified therein without
additional compensation in an ex officio capacity as provided by law and
as required by the primary functions of said officials’ office.
335
Civil Liberties Union vis-à-vis Public Interest Center
With respect to the legal complexion of Bautista’s position as DOTC
Undersecretary, there is a need to explore the implication of nullifying the holding
of a second position.
Where a person is prohibited from holding two offices at the same time, his
appointment or election to a second office may operate to vacate the first or he may
be ineligible for the second.7
The proposition that a person shall be declared ineligible for the second
position was followed in Civil Liberties Union v. Executive Secretary8 where the
Court ordered certain cabinet members, except those who were no longer
occupying the positions complained of, “to immediately relinquish their other
offices or employment, as herein defined, in the government, including
government-owned and controlled corporations and their subsidiaries.”9
Under this principle, Bautista would only be directed to relinquish
the post of MARINA Administrator, if still being occupied, and
concentrate on her functions as DOTC Undersecretary.
The other proposition—that a person who assumes a second and incompatible
office is deemed to have resigned from the first office—was applied in Public
Interest Center, Inc. v. Elma10 where the Court, by Resolution of March 5, 2007,
clarified that the ruling did not render both appointments void. It held that
“[f]ollowing the common-law rule on incompatibility of offices, respondent
Elma had, in effect, vacated his first
_______________
7 HECTOR DE LEON & HECTOR DE LEON, JR., THE LAW ON PUBLIC OFFICERS AND
ELECTION LAW. 45 (2000).
8 G.R. No. 83896, February 22, 1991, 194 SCRA 317.
9 Id., at p. 339.
10 G.R. No. 138965, June 30, 2006, 494 SCRA53.
336office as PCGG Chairman when he accepted the second office”11 as Chief
Presidential Legal Counsel.
 Under this rule, Bautista would be deemed to have vacated her first
office as DOTC Undersecretary when she accepted the post of OIC
Administrator of MARINA.
The Implications of the Two Propositions
Upon a closer examination of Public Interest Center, Inc. which espouses
the ipso facto vacancy rule, there appears a vacuity in such a situation where the
Court nullifies the appointment to a second office for being unconstitutional and
likewise deems the first office as having been vacated. In the end, the public officer
is left without an office.
In the present case, Bautista eventually voluntarily gave up her first post
when she was subsequently appointed as MARINA Administrator, after five
months of concurrently discharging the functions of an appointed DOTC
Undersecretary and a designated MARINA Officer-in-Charge. It bears noting that
what is being nullified is her designation and not the subsequent appointment as
Administrator. Her current position as MARINA Administrator was conferred not
by virtue of the assailed designation but by the subsequent appointment which
effectively stands. Thus, notwithstanding the implication of Public Interest Center,
the scenario of vacancy will not occur in this peculiar case.
With respect to the proposition under Civil Liberties Union—ineligibility for
the second position only—the only peculiarity of the present case is that the
reverse thing transpired in the meantime, with Bautista giving up the
Undersecretary position and accepting the subsequent regular appointment as
MARINA Administrator. The supposed continued validity
_______________
11 G.R. No. 138965, March 5, 2007, 517 SCRA 336, 339.
337of her position as DOTC Undersecretary has been rendered nugatory by her
voluntary relinquishment of said position.
Further quandary lies in the five-month interregnum.
On the one hand, following the Public Interest Center rule that deems her first
office vacated upon her holding of a second position, Bautista had become a de
facto DOTC Undersecretary from September 1, 2008 (when she assumed the
position of MARINA OIC Administrator) until she resigned therefrom. On the
other hand, following the Civil Liberties Union rule that merely deems her
ineligible for the second position, Bautista remained a de jure DOTC
Undersecretary during her entire tenure as such.
IN FINE, I submit that the two cases provide sound formulations for two
distinct situations. The Civil Liberties Union rule applies to cases involving
dual or multiple positions under Section 13 of Article VII of the
Constitution12 while the Public Interest Centerrule covers those under Section
7 of Article IX-B of the Constitution.13
The Civil Liberties Union formulation rendering the public officer ineligible for
the second position comes into play, since Bautista was a department
undersecretary, a position covered by the prohibition under Section 13, Article VII
of the Constitution. This principle underscores the primacy of the “Presi-
_______________
12 SECTION 13. The President, Vice President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure. x x x.
13 SECTION 7. No elective official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.
338dent, Vice President, the Members of the Cabinet, and their deputies or
assistants” as a class by itself, necessitating the disallowance of any implied
vacancy in such offices.
The Pubic Interest Center rule of implied resignation does not apply since it
speaks of “incompatibility of office” which is irrelevant in determining a violation
of Section 13, Article VII of the Constitution.
It has also been observed that the rule of ipso facto vacancy of a public office
by acceptance of a second public office does not apply where, under applicable
constitutional or statutory provisions, the holder of a public office is rendered
ineligible for a specified time for a second public office; under such circumstances
it is the second office which is considered vacant rather than the first office.14
I, therefore, vote to GRANT the petition and further declare that Bautista was
a de facto officer during her brief stint as MARINA OIC Administrator and a de
jure DOTC Undersecretary during her entire tenure as such.
Concluding Words
The present case, in which the constitutional question posed is no longer an
unchartered sea, should once again remind all civil servants of the rationale
behind the general rule against the holding of multiple positions.
One manifest purpose of a restriction on multiple holdings is to prevent offices
of public trust from accumulating in a single person.15 Indeed, no one can claim a
monopoly of skills.
“Being head of an executive department is no mean job. It is more than a full-
time job, requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department head’s ability and
expertise, he should be allowed
_______________
14 63C Am. Jur. 2d §61 p. 504, that is, not merely on the ground of the
incompatibility of office.
15 Supra note 7 at 45.
339to attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of responsibility, which
may result in haphazardness and inefficiency. Surely the advantages to be derived
from this concentration of attention, knowledge and expertise, particularly at this
stage of our national and economic development, far outweigh the benefits, if any,
that may be gained from a department head spreading himself too thin and taking
in more than what he can handle.”16
 The same norm holds true to that of a DOTC Undersecretary for Maritime
Transport. Now as always, the country cannot afford to have a public official who
cannot devote full time on the crucial problems, contemporary or longstanding, not
to mention the perennial sea tragedies, that have beleaguered the maritime
industry, an industry that is “indubitably imbued with national interest.”17
Petition granted, designation of Ma. Elena H. Bautista as OIC, Office of
Administrator, MARINA, concurrently as DOTC Undersecretary for Marine
Transportation declared unconstitutional.
Note.—Following the common-law rule on incompatibility of offices,
respondent Elma had, in effect, vacated his first office as Presidential Commission
on Good Government (PCGG) Chairman when he accepted the second office as
Chief Presidential Legal Counsel. (Public Interest Center, Inc. vs. Elma, 517 SCRA
336 [2007])
——o0o——
_______________
16 Civil Liberties Union v. Executive Secretary, supra note 8 at 339.
17 Trans-Asia Shipping Lines, Inc.-Unlicensed Crews Employees Union—
Assisted Labor Unions (Tasli-Alu) v. Court of Appeals, G.R. No. 145428, July 7,
2004, 433 SCRA 610, 621.
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
G.R. No. 191644. February 19, 2013.*
DENNIS A.B. FUNA, petitioner, vs. ACTING SECRETARY OF JUSTICE
ALBERTO C. AGRA, IN HIS OFFICIAL CONCURRENT CAPACITIES AS
ACTING SECRETARY OF THE DEPARTMENT OF JUSTICE AND AS ACTING
SOLICITOR GENERAL, EXECUTIVE SECRETARY LEANDRO R. MENDOZA,
OFFICE OF THE PRESIDENT, respondents.
Constitutional Law; Judicial Review; Limitations to the Power of Judicial
Review.—The power of judicial review is subject to limitations, to wit: (1) there
must be an actual case or controversy calling for the exercise of judicial power; (2)
the person challenging the act must have the standing to assail the validity of the
subject act or issuance, that is, he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct injury as a result of
its enforcement; (3) the question of constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be the very lis mota of the
case.
_______________
* EN BANC.
197
VOL. 691, FEBRUARY 19, 2013 197
Funa vs. Agra
Remedial Law; Civil Procedure; Locus Standi; To have legal standing,
therefore, a suitor must show that he has sustained or will sustain a “direct injury”
as a result of a government action, or have a “material interest” in the issue affected
by the challenged official act.—The OSG does not dispute the justiciability and
ripeness for consideration and resolution by the Court of the matter raised by the
petitioner. Also, the locus standi of the petitioner as a taxpayer, a concerned
citizen and a lawyer to bring a suit of this nature has already been settled in his
favor in rulings by the Court on several other public law litigations he brought.
In Funa v. Villar, 670 SCRA 579 (2012), for one, the Court has held: To have legal
standing, therefore, a suitor must show that he has sustained or will sustain a
“direct injury” as a result of a government action, or have a “material interest” in
the issue affected by the challenged official act. However, the Court has time
and again acted liberally on the locus standi requirements and has
accorded certain individuals, not otherwise directly injured, or with
material interest affected, by a Government act, standing to sue provided
a constitutional issue of critical significance is at stake. The rule on locus
standi is after all a mere procedural technicality in relation to which the
Court, in a catena of cases involving a subject of transcendental import,
has waived, or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been personally injured by the
operation of a law or any other government act. In David, the Court laid
out the bare minimum norm before the so-called “non-traditional suitors”
may be extended standing to sue, thusly: 1.) For taxpayers, there must be a
claim of illegal disbursement of public funds or that the tax measure is
unconstitutional; 2.) For voters, there must be a showing of obvious interest in the
validity of the election law in question; 3.) For concerned citizens, there must be a
showing that the issues raised are of transcendental importance which must be
settled early; and 4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators. This case before Us is
of transcendental importance, since it obviously has “far-reaching
implications,” and there is a need to promulgate rules that will guide the
bench, bar, and the public in future analogous cases. We, thus, assume a
liberal stance and allow petitioner to institute the instant petition.198
198 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
Same; Same; Moot and Academic; Words and Phrases; 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.—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. Although the controversy could have ceased due to the intervening
appointment of and assumption by Cadiz as the Solicitor General during the
pendency of this suit, and such cessation of the controversy seemingly rendered
moot and academic the resolution of the issue of the constitutionality of the
concurrent holding of the two positions by Agra, the Court should still go forward
and resolve the issue and not abstain from exercising its power of judicial review
because this case comes under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not desist from resolving an
issue that a supervening event meanwhile rendered moot and academic if any of
the following recognized exceptions obtained, namely: (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 constitutional issue 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.
Administrative Law; To Hold an Office; Words and Phrases; To hold an office
means to possess or to occupy the office, or to be in possession and administration
of the office, which implies nothing less than the actual discharge of the functions
and duties of the office.—It was of no moment that Agra’s designation was in an
acting or temporary capacity. The text of Section 13, 1987 Constitution, plainly
indicates that the intent of the Framers of the Constitution was to impose a stricter
prohibition on the President and the Members of his Cabinet in so far as holding
other offices or employments in the Government or in government-owned or
government controlled-corporations was concerned. In this regard, to hold an office
means to possess or to occupy the office, or to be in possession and administration
of the office, which implies nothing less than the actual discharge of the functions
and duties of the office. Indeed, in the language of Section 13 itself, 1987
Constitution, the Constitution makes no reference to the nature of the
appointment or designation. The prohibition against dual or multiple offices being
held by one
199
VOL. 691, FEBRUARY 19, 2013 199
Funa vs. Agra
official must be construed as to apply to all appointments or designations,
whether permanent or temporary, for it is without question that the avowed
objective of Section 13, 1987 Constitution, is to prevent the concentration of powers
in the Executive Department officials, specifically the President, the Vice-
President, the Members of the Cabinet and their deputies and assistants. To
construe differently is to “open the veritable floodgates of circumvention of an
important constitutional disqualification of officials in the Executive Department
and of limitations on the President’s power of appointment in the guise of
temporary designations of Cabinet Members, undersecretaries and assistant
secretaries as officers-in-charge of government agencies, instrumentalities, or
government-owned or controlled corporations.”
Same; Multiple Offices; The only two exceptions against the holding of
multiple offices are: (1) those provided for under the Constitution, such as Section
3, Article VII, authorizing the Vice President to become a member of the Cabinet;
and (2) posts occupied by Executive officials specified in Section 13, Article VII
without additional compensation in ex officio capacities as provided by law and as
required by the primary functions of the officials’ offices.—According to Public
Interest Center, Inc. v. Elma, 494 SCRA 53 (2006), the only two exceptions against
the holding of multiple offices are: (1) those provided for under the Constitution,
such as Section 3, Article VII, authorizing the Vice President to become a member
of the Cabinet; and (2) posts occupied by Executive officials specified in Section 13,
Article VII without additional compensation in ex officio capacities as provided by
law and as required by the primary functions of the officials’ offices. In this regard,
the decision in Public Interest Center, Inc. v. Elma, 494 SCRA 53 (2006), adverted
to the resolution issued on August 1, 1991 in Civil Liberties Union v. The Executive
Secretary, 194 SCRA 317 (1991), whereby the Court held that the phrase “the
Members of the Cabinet, and their deputies or assistants” found in Section 13,
1987 Constitution, referred only to the heads of the various executive departments,
their undersecretaries and assistant secretaries, and did not extend to other public
officials given the rank of Secretary, Undersecretary or Assistant Secretary.
Hence, in Public Interest Center, Inc. v. Elma, 494 SCRA 53 (2006), the Court
opined that the prohibition under Section 13 did not cover Elma, a Presidential
Assistant with the rank of Undersecretary.200
200 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
Same; Office of the Solicitor General; The powers and functions of the Office
of the Solicitor General are neither required by the primary functions nor included
by the powers of the Department of Justice, and vice versa.—Indeed, the powers
and functions of the OSG are neither required by the primary functions nor
included by the powers of the DOJ, and vice versa. The OSG, while attached to the
DOJ, is not a constituent unit of the latter, as, in fact, the Administrative Code of
1987 decrees that the OSG is independent and autonomous. With the enactment
of Republic Act No. 9417, the Solicitor General is now vested with a cabinet rank,
and has the same qualifications for appointment, rank, prerogatives, salaries,
allowances, benefits and privileges as those of the Presiding Justice of the Court
of Appeals. Moreover, the magnitude of the scope of work of the Solicitor General,
if added to the equally demanding tasks of the Secretary of Justice, is obviously
too much for any one official to bear. Apart from the sure peril of political pressure,
the concurrent holding of the two positions, even if they are not entirely
incompatible, may affect sound government operations and the proper
performance of duties.
Same; Same; The primary functions of the Office of the Solicitor General are
not related or necessary to the primary functions of the Department of Justice.—
Clearly, the primary functions of the Office of the Solicitor General are not related
or necessary to the primary functions of the Department of Justice. Considering
that the nature and duties of the two offices are such as to render it improper, from
considerations of public policy, for one person to retain both, an incompatibility
between the offices exists, further warranting the declaration of Agra’s designation
as the Acting Secretary of Justice, concurrently with his designation as the Acting
Solicitor General, to be void for being in violation of the express provisions of the
Constitution.
Same; Public Officers; De Facto Officers; Words and Phrases; A de facto
officer is one who derives his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose appointment is valid on its
face. He may also be one who is in possession of an office, and is discharging its
duties under color of authority, by which is meant authority derived from an
appointment, however irregular or informal, so that the incumbent is not a mere
volunteer.—A de facto officer is one who derives his appointment
201
VOL. 691, FEBRUARY 19, 2013 201
Funa vs. Agra
from one having colorable authority to appoint, if the office is an appointive
office, and whose appointment is valid on its face. He may also be one who is in
possession of an office, and is discharging its duties under color of authority, by
which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent is not a mere volunteer. Consequently, the acts of
the de facto officer are just as valid for all purposes as those of a de jure officer, in
so far as the public or third persons who are interested therein are concerned.
Same; Same; Same; The Supreme Court holds that all official actions of Agra
as a de facto Acting Secretary of Justice, assuming that was his later designation,
were presumed valid, binding and effective as if he was the officer legally appointed
and qualified for the office.—In order to be clear, therefore, the Court holds that
all official actions of Agra as a de factoActing Secretary of Justice, assuming that
was his later designation, were presumed valid, binding and effective as if he was
the officer legally appointed and qualified for the office. This clarification is
necessary in order to protect the sanctity of the dealings by the public with persons
whose ostensible authority emanates from the State. Agra’s official actions covered
by this clarification extend to but are not limited to the promulgation of resolutions
on petitions for review filed in the Department of Justice, and the issuance of
department orders, memoranda and circulars relative to the prosecution of
criminal cases.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition.
The facts are stated in the opinion of the Court.
Funa Balayan Fortes Galandines & Villagonzalo Law
Offices for petitioner.
Lally C. Ortilla for respondent Alberto C. Agra.
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution expressly prohibits the
President, Vice-President, the Members of the Cabinet, and their deputies or
assistants from holding any other office or employment during their tenure unless
other-
202
202 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
wise provided in the Constitution. Complementing the prohibition is Section 7,
paragraph (2), Article IX-B of the 1987 Constitution, which bans any appointive
official from holding any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries, unless otherwise allowed by law or
the primary functions of his position.
These prohibitions under the Constitution are at the core of this special civil
action for certiorari and prohibition commenced on April 7, 2010 to assail the
designation of respondent Hon. Alberto C. Agra, then the Acting Secretary of
Justice, as concurrently the Acting Solicitor General.
Antecedents
The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-
Arroyo appointed Agra as the Acting Secretary of Justice following the resignation
of Secretary Agnes VST Devanadera in order to vie for a congressional seat in
Quezon Province; that on March 5, 2010, President Arroyo designated Agra as the
Acting Solicitor General in a concurrent capacity;1 that on April 7, 2010, the
petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer,
commenced this suit to challenge the constitutionality of Agra’s concurrent
appointments or designations, claiming it to be prohibited under Section 13,
Article VII of the 1987 Constitution; that during the pendency of the suit,
President Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the
Solicitor General; and that Cadiz assumed as the Solicitor General and commenced
his duties as such on August 5, 2010.2
_______________
1 Rollo, p. 13.
2 Id., at p. 172.
203
VOL. 691, FEBRUARY 19, 2013 203
Funa vs. Agra
Agra renders a different version of the antecedents. He represents that on
January 12, 2010, he was then the Government Corporate Counsel when President
Arroyo designated him as the Acting Solicitor General in place of Solicitor General
Devanadera who had been appointed as the Secretary of Justice;3 that on March
5, 2010, President Arroyo designated him also as the Acting Secretary of Justice
vice Secretary Devanadera who had meanwhile tendered her resignation in order
to run for Congress representing a district in Quezon Province in the May 2010
elections; that he then relinquished his position as the Government Corporate
Counsel; and that pending the appointment of his successor, Agra continued to
perform his duties as the Acting Solicitor General.4
Notwithstanding the conflict in the versions of the parties, the fact that Agra
has admitted to holding the two offices concurrently in acting capacities is settled,
which is sufficient for purposes of resolving the constitutional question that
petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition for certiorari, prohibition and
mandamus brought by herein petitioner assailing the constitutionality of the
designation of then Undersecretary of the Department of Transportation and
Communications (DOTC) Maria Elena H. Bautista as concurrently the Officer-in-
Charge of the Maritime Industry Authority. The petitioner has adopted here the
arguments he advanced in Funa v. Ermita, and he has rested his grounds of
challenge
_______________
3 Id., at p. 76.
4 Id., at p. 77.
5 G.R. No. 184740, February 11, 2010, 612 SCRA 308.
204
204 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
mainly on the pronouncements in Civil Liberties Union v. Executive
Secretary6 and Public Interest Center, Inc. v. Elma.7
What may differentiate this challenge from those in the others is that the
appointments being hereby challenged were in acting or temporary capacities.
Still, the petitioner submits that the prohibition under Section 13, Article VII of
the 1987 Constitution does not distinguish between an appointment or designation
of a Member of the Cabinet in an acting or temporary capacity, on the one hand,
and one in a permanent capacity, on the other hand; and that Acting Secretaries,
being nonetheless Members of the Cabinet, are not exempt from the constitutional 11 Id., at p. 87.
ban. He emphasizes that the position of the Solicitor General is not an ex 12 Id., at pp. 91, 100.
officio position in relation to the position of the Secretary of Justice, considering 13 Id., at p. 94.
that the Office of the Solicitor General (OSG) is an independent and autonomous 14 Id.
office attached to the Department of Justice (DOJ). 8 He insists that the fact that 15 Id., at p. 126.
Agra was extended an appointment as the Acting Solicitor General shows that he 16 Id., at pp. 128-129.
did not occupy that office in an ex officiocapacity because an ex officio position does 206
not require any further warrant or appointment. 206 SUPREME COURT REPORTS ANNOTATED
Respondents contend, in contrast, that Agra’s concurrent designations as the
Acting Secretary of Justice and Acting Solicitor General were only in a temporary Funa vs. Agra
capacity, the only effect of which was to confer additional duties to him. Thus, as as to the time of his designation as the Acting Solicitor General and Acting
the Acting Solicitor General and Acting Secretary of Justice, Agra was not Secretary of Justice; that Agra’s concurrent designations further violated
“holding” both offices in the strict constitutional sense. 9 They argue that an the Administrative Code of 1987 which mandates that the OSG shall be
appointment, to be covered by the constitutional prohibition, must be regular and autonomous and independent.17
permanent, instead of a mere designation. Issue
_______________ Did the designation of Agra as the Acting Secretary of Justice, concurrently
6 G.R. Nos. 83896 and 83815, February 22, 1991, 194 SCRA 317. with his position of Acting Solicitor General, violate the constitutional prohibition
7 G.R. No. 138965, June 30, 2006, 494 SCRA 53. against dual or multiple offices for the Members of the Cabinet and their deputies
8 Section 34, Chapter 12, Title III, Book 4 of the Administrative Code of 1987. and assistants?
9 Rollo, p. 83. Ruling
205 The petition is meritorious.
The designation of Agra as Acting Secretary of Justice concurrently with his
VOL. 691, FEBRUARY 19, 2013 205
position of Acting Solicitor General was unconstitutional and void for being in
Funa vs. Agra violation of the constitutional prohibition under Section 13, Article VII of the 1987
Respondents further contend that, even on the assumption that Agra’s Constitution.
concurrent designation constituted “holding of multiple offices,” his continued 1.
service as the Acting Solicitor General was akin to a hold-over; that upon Agra’s Requisites of judicial review not in issue
designation as the Acting Secretary of Justice, his term as the Acting Solicitor The power of judicial review is subject to limitations, to wit: (1) there must be
General expired in view of the constitutional prohibition against holding of an actual case or controversy calling for the exercise of judicial power; (2) the
multiple offices by the Members of the Cabinet; that under the principle of hold- person challenging the act must have the standing to assail the validity of the
over, Agra continued his service as the Acting Solicitor General “until his successor subject act or issuance, that is, he must have a personal and substantial interest
is elected and qualified”10 to “prevent a hiatus in the government pending the time in the case such that he has sustained, or will sustain, direct injury as a result of
when a successor may be chosen and inducted into office”; 11 and that during his its enforcement; (3) the question of constitutionality must be raised at the earliest
continued service as the Acting Solicitor General, he did not receive any salaries oppor-
and emoluments from the OSG after becoming the Acting Secretary of Justice on _______________
March 5, 2010.12 17 Id., at p. 137.
Respondents point out that the OSG’s independence and autonomy are defined 207
by the powers and functions conferred to that office by law, not by the person VOL. 691, FEBRUARY 19, 2013 207
appointed to head such office;13 and that although the OSG is attached to the DOJ,
the DOJ’s authority, control and supervision over the OSG are limited only to Funa vs. Agra
budgetary purposes.14 tunity; and (4) the issue of constitutionality must be the very lis motaof the case.18
In his reply, petitioner counters that there was no “prevailing special Here, the OSG does not dispute the justiciability and ripeness for consideration
circumstance” that justified the non-application to Agra of Section 13, Article VII and resolution by the Court of the matter raised by the petitioner. Also, the locus
of the 1987 Constitution;15 that the temporariness of the appointment or standi of the petitioner as a taxpayer, a concerned citizen and a lawyer to bring a
designation is not an excuse to disregard the constitutional ban against holding of suit of this nature has already been settled in his favor in rulings by the Court on
multiple offices by the Members of the Cabinet;16 that Agra’s invocation of the several other public law litigations he brought. In Funa v. Villar,19 for one, the
principle of hold-over is misplaced for being predicated upon an erroneous Court has held:
presentation of a material fact To have legal standing, therefore, a suitor must show that he has sustained or
_______________ will sustain a “direct injury” as a result of a government action, or have a “material
10 Id., at p. 86. interest” in the issue affected by the challenged official act. However, the Court
has time and again acted liberally on the locus standi requirements and
has accorded certain individuals, not otherwise directly injured, or with
material interest affected, by a Government act, standing to sue provided
a constitutional issue of critical significance is at stake. The rule on locus
standi is after all a mere procedural technicality in relation to which the
Court, in a catena of cases involving a subject of transcendental import,
has waived, or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been personally injured by the
operation of a law or any other government act. In David, the Court laid
out the bare minimum norm before the so-called “non-traditional suitors”
may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
2.) For voters, there must be a showing of obvious interest in the
validity of the election law in question;
_______________
18 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of Budget
and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 382.
19 G.R. No. 192791, April 24, 2012, 670 SCRA 579.
208
208 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
3.) For concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
4.) For legislators, there must be a claim that the official action
complained of infringes their prerogatives as legislators.
This case before Us is of transcendental importance, since it obviously
has “far-reaching implications,” and there is a need to promulgate rules
that will guide the bench, bar, and the public in future analogous cases.
We, thus, assume a liberal stance and allow petitioner to institute the
instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus standi of the petitioner as
a taxpayer, a concerned citizen and a lawyer because the issue raised therein
involved a subject of transcendental importance whose resolution was necessary
to promulgate rules to guide the Bench, Bar, and the public in similar cases.
But, it is next posed, did not the intervening appointment of and assumption
by Cadiz as the Solicitor General during the pendency of this suit render this suit
and the issue tendered herein moot and academic?
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.22Although the controversy could have ceased due to the
intervening appointment of and assumption by Cadiz as the Solicitor General
during the pendency of this suit, and such cessation of the controversy seemingly
rendered moot and academic the resolution of the issue of the constitutionality of
the concurrent holding of the two positions by Agra, the Court should still go
forward and resolve the issue and not abstain
_______________
20 Id., at pp. 594-595.
21 Supra note 4.
22 Id., at p. 319.
209
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Funa vs. Agra
from exercising its power of judicial review because this case comes under several
of the well-recognized exceptions established in jurisprudence. Verily, the Court
did not desist from resolving an issue that a supervening event meanwhile
rendered moot and academic if any of the following recognized exceptions obtained,
namely: (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
constitutional issue 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.23
It is the same here. The constitutionality of the concurrent holding by Agra of
the two positions in the Cabinet, albeit in acting capacities, was an issue that
comes under all the recognized exceptions. The issue involves a probable violation
of the Constitution, and relates to a situation of exceptional character and of
paramount public interest by reason of its transcendental importance to the
people. The resolution of the issue will also be of the greatest value to the Bench
and the Bar in view of the broad powers wielded through said positions. The
situation further calls for the review because the situation is capable of repetition,
yet evading review.24 In other words, many important and practical benefits are
still to be gained were the Court to proceed to the ultimate resolution of the
constitutional issue posed.
_______________
23 See Funa v. Villar, supra note 18, at pp. 592-593; David v. Macapagal-
Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May
3, 2006, 489 SCRA 160, 214-215.
24 Javier v. Commission on Elections, Nos. L-68379-81, September 22, 1986,
144 SCRA 194, 198.
210
210 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
2.
Unconstitutionality of Agra’s concurrent designation as Acting
Secretary of Justice and Acting
Solicitor General
At the center of the controversy is the correct application of Section 13, Article
VII of the 1987 Constitution, viz.:
Section 13. The President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure. They shall
not, during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in
the conduct of their office.
A relevant and complementing provision is Section 7, paragraph (2), Article
IX-B of the 1987 Constitution, to wit:
Section 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.
The differentiation of the two constitutional provisions was well stated in Funa
v. Ermita,25 a case in which the petitioner herein also assailed the designation of
DOTC Undersecretary as concurrent Officer-in-Charge of the Maritime Industry
Authority, with the Court reiterating its pronouncement in Civil Liberties Union
v. The Executive Secretary26 on the in-
_______________
25 Supra note 4.
26 Supra note 5, at pp. 329-331.
211
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Funa vs. Agra
tent of the Framers behind these provisions of the Constitution, viz.:
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7, Article IX-B is meant to
lay down the general rule applicable to all elective and appointive public
officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice-President, Members
of the Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987 Constitution is to impose
a stricter prohibition on the President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section
13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple government
offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal
negation. The phrase “unless otherwise provided in this Constitution”
must be given a literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or
acting as President in those instances provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII. (Bold
emphasis supplied.)
Being designated as the Acting Secretary of Justice concurrently with his
position of Acting Solicitor General, therefore, Agra was undoubtedly covered by
Section 13, Article VII,212
212 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
supra, whose text and spirit were too clear to be differently read. Hence, Agra
could not validly hold any other office or employment during his tenure as the
Acting Solicitor General, because the Constitution has not otherwise so provided. 27
It was of no moment that Agra’s designation was in an acting or temporary
capacity. The text of Section 13, supra, plainly indicates that the intent of the
Framers of the Constitution was to impose a stricter prohibition on the President
and the Members of his Cabinet in so far as holding other offices or employments
in the Government or in government-owned or government controlled-corporations
was concerned.28 In this regard, to hold an office means to possess or to occupy the
office, or to be in possession and administration of the office, which implies nothing
less than the actual discharge of the functions and duties of the office.29 Indeed, in
the language of Section 13 itself, supra, the Constitution makes no reference to the
nature of the appointment or designation. The prohibition against dual or multiple
offices being held by one official must be construed as to apply to all appointments
or designations, whether permanent or temporary, for it is without question that
the avowed objective of Section 13, supra, is to prevent the concentration of powers
in the Executive Department officials, specifically the President, the Vice-
President, the Members of the Cabinet and their deputies and assistants. 30 To
construe differently is to “open the veritable floodgates of circumvention of an
important constitutional disqualification of officials in the Executive Department
and of limitations on the President’s power of appointment in the guise of
temporary designations of Cabinet Members, under-
_______________
27 E.g., the Constitution, under its Section (1), Article VIII, provides that the
Secretary of Justice sits as an ex officio member of the Judicial and Bar Council.
28 Civil Liberties Union v. The Executive Secretary, supra note 6, at pp. 326-
327.
29 Funa v. Ermita, supra note 5, at p. 329.
30 Id., at p. 330.
213
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Funa vs. Agra
secretaries and assistant secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations.”31
According to Public Interest Center, Inc. v. Elma,32 the only two exceptions
against the holding of multiple offices are: (1) those provided for under the
Constitution, such as Section 3, Article VII, authorizing the Vice President to
become a member of the Cabinet; and (2) posts occupied by Executive officials
specified in Section 13, Article VII without additional compensation in ex
officio capacities as provided by law and as required by the primary functions of
the officials’ offices. In this regard, the decision in Public Interest Center, Inc. v.
Elma adverted to the resolution issued on August 1, 1991 in Civil Liberties Union
v. The Executive Secretary, whereby the Court held that the phrase “the Members
of the Cabinet, and their deputies or assistants” found in Section 13, supra,
referred only to the heads of the various executive departments, their
undersecretaries and assistant secretaries, and did not extend to other public
officials given the rank of Secretary, Undersecretary or Assistant
Secretary.33 Hence, in Public
_______________
31 Id., at p. 331.
32 Supra note 7.
33 The clarification was the Court’s action on the motion for clarification filed
in Civil Liberties Union v. The Executive Secretary, and revises the main opinion
promulgated on February 22, 1991 (194 SCRA 317) totally invalidating Executive
Order No. 284 dated July 25, 1987 (whose questioned Section 1 states: “Even if
allowed by law or by the ordinary functions of his position, a member of the
Cabinet, undersecretary or assistant secretary or other appointive officials of the
Executive Department may, in addition to his primary position, hold not more than
two positions in the government and government corporations and receive the
corresponding compensation therefor; Provided, that this limitation shall not
apply to ad hoc bodies or committees, or to boards, councils or bodies of which the
President is the Chairman.”). The clarifying dictum now considered Executive
Order No. 284 partly valid to the extent that it included in its coverage “other
appointive officials” aside from the members of the Cabi-
214
214 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
Interest Center, Inc. v. Elma, the Court opined that the prohibition under Section
13 did not cover Elma, a Presidential Assistant with the rank of Undersecretary. 34
It is equally remarkable, therefore, that Agra’s designation as the Acting
Secretary of Justice was not in an ex officio capacity, by which he would have been
validly authorized to concurrently hold the two positions due to the holding of one
office being the consequence of holding the other. Being included in the stricter
prohibition embodied in Section 13, supra, Agra cannot liberally apply in his favor
the broad exceptions provided in Section 7, paragraph 2, Article IX-B of the
Constitution (“Unless otherwise allowed by law or the primary functions of his
position”) to justify his designation as Acting Secretary of Justice concurrently
with his designation as Acting Solicitor General, or vice versa. Thus, the Court has
said―
[T]he qualifying phrase “unless otherwise provided in this Constitution” in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under
Section 7, Article IX-B of the 1987 Constitution. To construe said qualifying phrase
as respondents would have us do, 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
_______________
net, their undersecretaries and assistant secretaries, with the dispositive part
of the clarificatory resolution of August 1, 1991 stating: “WHEREFORE, subject to
the qualification above-stated, the petitions are GRANTED. Executive Order No.
284 is hereby declared null and void insofar as it allows a member of the Cabinet,
undersecretary or assistant secretary to hold other positions in the government
and government-owned and controlled corporations.”
34 Public Interest Center, Inc. v. Elma, supra note 7 at p. 64, with the Court
summing up at the end with the statement: “In sum, the prohibition in Section 13,
Article VII of the 1987 Constitution does not apply to respondent Elma since
neither the PCGG Chairman nor the (Chief Presidential Legal Counsel) is a
Cabinet secretary, undersecretary, or assistant secretary. x x x.”
215
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Funa vs. Agra
the Cabinet, their deputies and assistants with respect to holding other offices or
employment in the government during their tenure. 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.35
To underscore the obvious, it is not sufficient for Agra to show that his holding
of the other office was “allowed by law or the primary functions of his position.” To
claim the exemption of his concurrent designations from the coverage of the
stricter prohibition under Section 13, supra, he needed to establish herein that his
concurrent designation was expressly allowed by the Constitution. But, alas, he
did not do so.
To be sure, Agra’s concurrent designations as Acting Secretary of Justice and
Acting Solicitor General did not come within the definition of an ex officio capacity.
Had either of his concurrent designations been in an ex officio capacity in relation
to the other, the Court might now be ruling in his favor.
The import of an ex officio capacity has been fittingly explained in Civil
Liberties Union v. Executive Secretary,36 as follows:
x x x. 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.” Ex
officio likewise denotes an “act done in an official character, or as a consequence of
office, and without any other appointment or authority other than that conferred
by
_______________
35 Civil Liberties Union v. The Executive Secretary, supra note 6, at pp. 329-
330.
36 Id., at pp. 333-335.
216
216 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
the office.” 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. x x x.
xxxx
The ex officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is mandated to “provide the
government with a principal law agency which shall be both its legal counsel and
prosecution arm; administer the criminal justice system in accordance with the
accepted processes thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the correctional system; implement
the laws on the admission and stay of aliens, citizenship, land titling system, and
settlement of land problems involving small landowners and members of
indigenous cultural minorities; and provide free legal services to indigent members
of the society.”37 The DOJ’s specific powers and functions are as follows:
(1) Act as principal law agency of the government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes, prosecute offenders and administer
the probation and correction system;
(3) Extend free legal assistance/representation to indigents and poor litigants
in criminal cases and non-commercial civil disputes;
(4) Preserve the integrity of land titles through proper registration;
_______________
37 Sections 1 and 2, Chapter 1, Title III, Book IV of the Administrative Code of
1987.
217
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Funa vs. Agra
(5) Investigate and arbitrate untitled land disputes involving small landowners
and members of indigenous cultural communities;
(6) Provide immigration and naturalization regulatory services and implement
the laws governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries,
including government-owned or controlled corporations and their
subsidiaries; and
(8) Perform such other functions as may be provided by law.38
On the other hand, the Administrative Code of 1987 confers upon the Office of
the Solicitor General the following powers and functions, to wit:
The Office of the Solicitor General shall represent the Government of the
Philippines, its agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services of lawyers.
When authorized by the President or head of the office concerned, it shall also
represent government owned or controlled corporations. The Office of the Solicitor
General shall discharge duties requiring the services of lawyers. It shall have the
following specific powers and functions:
1. Represent the Government in the Supreme Court and the Court of Appeals
in all criminal proceedings; represent the Government and its officers in the
Supreme Court, the Court of Appeals, and all other courts or tribunals in all civil
actions and special proceedings in which the Government or any officer thereof in
his official capacity is a party.
2. Investigate, initiate court action, or in any manner proceed against any
person, corporation or firm for the enforcement of any contract, bond, guarantee,
mortgage, pledge or other collateral executed in favor of the Government. Where
proceedings are to be conducted outside of the Philippines the Solicitor General
may employ
_______________
38 Section 3, Chapter 1, Title III, Book IV of the Administrative Code of 1987.
218
218 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
counsel to assist in the discharge of the aforementioned responsibilities.
3. Appear in any court in any action involving the validity of any treaty, law,
executive order or proclamation, rule or regulation when in his judgment his
intervention is necessary or when requested by the Court.
4. Appear in all proceedings involving the acquisition or loss of Philippine
citizenship.
5. Represent the Government in all land registration and related
proceedings. Institute actions for the reversion to the Government of lands of the
public domain and improvements thereon as well as lands held in violation of the
Constitution.
6. Prepare, upon request of the President or other proper officer of the
National Government, rules and guidelines for government entities governing the
preparation of contracts, making investments, undertaking of transactions, and
drafting of forms or other writings needed for official use, with the end in view of
facilitating their enforcement and insuring that they are entered into or prepared
conformably with law and for the best interests of the public.
7. Deputize, whenever in the opinion of the Solicitor General the public
interest requires, any provincial or city fiscal to assist him in the performance of
any function or discharge of any duty incumbent upon him, within the jurisdiction
of the aforesaid provincial or city fiscal. When so deputized, the fiscal shall be
under the control and supervision of the Solicitor General with regard to the
conduct of the proceedings assigned to the fiscal, and he may be required to render
reports or furnish information regarding the assignment.
8. Deputize legal officers of government departments, bureaus, agencies and
offices to assist the Solicitor General and appear or represent the Government in
cased involving their respective offices, brought before the courts and exercise
supervision and control over such legal Officers with respect to such cases.
9. Call on any department, bureau, office, agency or instrumentality of the
Government for such service, assistance and cooperation as may be necessary in
fulfilling its functions and responsibilities and for this purpose enlist the services
of any government official or employee in the pursuit of his tasks.219
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Funa vs. Agra
10. Departments, bureaus, agencies, offices, instrumentalities and
corporations to whom the Office of the Solicitor General renders legal services are
authorized to disburse funds from their sundry operating and other funds for the
latter Office. For this purpose, the Solicitor General and his staff are specifically
authorized to receive allowances as may be provided by the Government offices,
instrumentalities and corporations concerned, in addition to their regular
compensation.
 11. Represent, upon the instructions of the President, the Republic of the
Philippines in international litigations, negotiations or conferences where the legal
position of the Republic must be defended or presented.
12. Act and represent the Republic and/or the people before any court,
tribunal, body or commission in any matter, action or proceedings which, in his
opinion affects the welfare of the people as the ends of justice may require; and
13. Perform such other functions as may be provided by law.39
The foregoing provisions of the applicable laws show that one position was not
derived from the other. Indeed, the powers and functions of the OSG are neither
required by the primary functions nor included by the powers of the DOJ, and vice
versa. The OSG, while attached to the DOJ,40 is not a constituent unit of the
latter,41as, in fact, the Administrative Code of 1987 decrees that the OSG is
independent and autonomous.42 With the enactment of Republic Act No. 9417,43
_______________
39 Section 35, Chapter 12, Title III, Book IV of the Administrative Code of
1987.
40 Section 34, Chapter 12, Title III, Book IV of the Administrative Code of
1987.
41 Section 4, Chapter 1, Title III, Book IV of the Administrative Code of 1987.
42 Section 34, Chapter 12, Title III, Book IV of the Administrative Code of
1987.
43 An Act to Strengthen the Office of the Solicitor General, by Expanding and
Streamlining its Bureaucracy, Upgrading Employee Skills, and Augmenting
Benefits, and Appropriating funds therefor and for Other Purposes.
220
220 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
the Solicitor General is now vested with a cabinet rank, and has the same
qualifications for appointment, rank, prerogatives, salaries, allowances, benefits
and privileges as those of the Presiding Justice of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the Solicitor General, if added
to the equally demanding tasks of the Secretary of Justice, is obviously too much
for any one official to bear. Apart from the sure peril of political pressure, the
concurrent holding of the two positions, even if they are not entirely incompatible,
may affect sound government operations and the proper performance of duties.
Heed should be paid to what the Court has pointedly observed in Civil Liberties
Union v. Executive Secretary:45
Being head of an executive department is no mean job. It is more than a full-
time job, requiring full attention, specialized knowledge, skills and expertise. If
maximum benefits are to be derived from a department head’s ability and
expertise, he should be allowed to attend to his duties and responsibilities without
the distraction of other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness and inefficiency.
Surely the advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and economic
development, far outweigh the benefits, if any, that may be gained from a
department head spreading himself too thin and taking in more than what he can
handle.
It is not amiss to observe, lastly, that assuming that Agra, as the Acting
Solicitor General, was not covered by the stricter prohibition under Section
13, supra, due to such position being merely vested with a cabinet rank under
Section 3, Republic Act No. 9417, he nonetheless remained covered by the general
prohibition under Section 7, supra. Hence, his concurrent designations were still
subject to the conditions
_______________
44 Section 3, Republic Act No. 9417.
45 Supra note 6, at p. 339.
221
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Funa vs. Agra
under the latter constitutional provision. In this regard, the Court aptly pointed
out in Public Interest Center, Inc. v. Elma:46
The general rule contained in Article IX-B of the 1987 Constitution permits an
appointive official to hold more than one office only if “allowed by law or by the
primary functions of his position.” In the case of Quimson v. Ozaeta, this Court
ruled that, “[t]here is no legal objection to a government official occupying two
government offices and performing the functions of both as long as there is no
incompatibility.” The crucial test in determining whether incompatibility exists
between two offices was laid out in People v. Green—whether one office is
subordinate to the other, in the sense that one office has the right to interfere with
the other.
[I]ncompatibility between two offices, is an inconsistency in the
functions of the two; x x x Where one office is not subordinate to the other,
nor the relations of the one to the other such as are inconsistent and
repugnant, there is not that incompatibility from which the law declares
that the acceptance of the one is the vacation of the other. The force of the
word, in its application to this matter is, that from the nature and relations
to each other, of the two places, they ought not to be held by the same
person, from the contrariety and antagonism which would result in the
attempt by one person to faithfully and impartially discharge the duties of
one, toward the incumbent of the other. x x x The offices must subordinate,
one [over] the other, and they must, per se, have the right to interfere, one
with the other, before they are incompatible at common law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution applies in general to all
elective and appointive officials, Section 13, Article VII, thereof applies in
particular to Cabinet secretaries, undersecretaries and assistant secretaries. In
the Resolution in Civil Liberties Union v. Executive Secretary, this Court already
clarified the scope of the prohibition provided in Section 13, Article VII of the 1987
Constitution. Citing the case of US v. Mouat, it specifically identified the
_______________
46 Supra note 7.
222
222 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
persons who are affected by this prohibition as secretaries, undersecretaries and
assistant secretaries; and categorically excluded public officers who merely have
the rank of secretary, undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor General refers to
the persons affected by the constitutional prohibition. The persons cited in
the constitutional provision are the “Members of the Cabinet, their deputies
and assistants.” These terms must be given their common and general
acceptation as referring to the heads of the executive departments, their
undersecretaries and assistant secretaries. Public officials given the rank
equivalent to a Secretary, Undersecretary, or Assistant Secretary are not
covered by the prohibition, nor is the Solicitor General affected thereby.
(Italics supplied).
It is clear from the foregoing that the strict prohibition under Section 13,
Article VII of the 1987 Constitution is not applicable to the PCGG Chairman nor
to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant
secretary, even if the former may have the same rank as the latter positions.
It must be emphasized, however, that despite the non-applicability of Section
13, Article VII of the 1987 Constitution to respondent Elma, he remains covered
by the general prohibition under Section 7, Article IX-B and his appointments
must still comply with the standard of compatibility of officers laid down therein;
failing which, his appointments are hereby pronounced in violation of the
Constitution.47
Clearly, the primary functions of the Office of the Solicitor General are not
related or necessary to the primary functions of the Department of Justice.
Considering that the nature and duties of the two offices are such as to render it
improper, from considerations of public policy, for one person to retain both, 48 an
incompatibility between the offices exists, further warranting the declaration of
Agra’s designation as the Act-
_______________
47 Id., at pp. 59-63.
48 Summers v. Ozaeta, 81 Phil. 754, 764 (1948); see Mechem, A Treatise on the
Law of Public Offices and Officers, pp. 268-269 (1890).
223
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Funa vs. Agra
ing Secretary of Justice, concurrently with his designation as the Acting Solicitor
General, to be void for being in violation of the express provisions of the
Constitution.
3.
Effect of declaration of unconstitutionality of Agra’s concurrent
appointment; the de facto officer doctrine
In view of the application of the stricter prohibition under Section 13, supra,
Agra did not validly hold the position of Acting Secretary of Justice concurrently
with his holding of the position of Acting Solicitor General. Accordingly, he was not
to be considered as a de jure officer for the entire period of his tenure as the Acting
Secretary of Justice. A de jure officer is one who is deemed, in all respects, legally
appointed and qualified and whose term of office has not expired.49
That notwithstanding, Agra was a de facto officer during his tenure as Acting
Secretary of Justice. In Civil Liberties Union v. Executive Secretary,50 the Court
said:
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for actual services
rendered. 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. 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.
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.
_______________
49 Topacio v. Ong, G.R. No. 179895, December 18, 2008, 574 SCRA 817, 830.
50 Supra note 6, at pp. 339-340.
224
224 SUPREME COURT REPORTS ANNOTATED
Funa vs. Agra
A de facto officer is one who derives his appointment from one having colorable
authority to appoint, if the office is an appointive office, and whose appointment is
valid on its face.51 He may also be one who is in possession of an office, and is
discharging its duties under color of authority, by which is meant authority derived
from an appointment, however irregular or informal, so that the incumbent is not
a mere volunteer.52 Consequently, the acts of the de facto officer are just as valid
for all purposes as those of a de jureofficer, in so far as the public or third persons
who are interested therein are concerned.53
In order to be clear, therefore, the Court holds that all official actions of Agra
as a de facto Acting Secretary of Justice, assuming that was his later designation,
were presumed valid, binding and effective as if he was the officer legally
appointed and qualified for the office.54 This clarification is necessary in order to
protect the sanctity of the dealings by the public with persons whose ostensible
authority emanates from the State.55 Agra’s official actions covered by this
clarification extend to but are not limited to the promulgation of resolutions on
petitions for review filed in the Department of Justice, and the issuance of
department orders, memoranda and circulars relative to the prosecution of
criminal cases.
WHEREFORE, the Court GRANTS the petition for certiorariand prohibition;
ANNULS AND VOIDS the designation of Hon. Alberto C. Agra as the Acting
Secretary of Justice in a concurrent capacity with his position as the Acting
Solicitor
_______________
51 Dimaandal v. Commission on Audit, G.R. No. 122197, June 26, 1998, 291
SCRA 322, 330.
 52 Id.; see also The Civil Service Commission v. Joson, Jr., G.R. No. 154674, ——o0o——
May 27, 2004, 429 SCRA 773, 786-787.
53 See Mechem, supra note 47, at pp. 10 and 218; Topacio v. Ong, supra note
48, at pp. 829-830. G.R. No. 191002. March 17, 2010.*
54 Id.; Seneres v. Commission on Elections, G.R. No. 178678, April 16, 2009, ARTURO M. DE CASTRO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC)
585 SCRA 557, 575. and PRESIDENT GLORIA MACAPAGAL-ARROYO, respondents.
55 Topacio v. Ong, supra note 48 at p. 830. G.R. No. 191032. March 17, 2010.*
225 JAIME N. SORIANO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC),
VOL. 691, FEBRUARY 19, 2013 225 respondent.
G.R. No. 191057. March 17, 2010.*
Funa vs. Agra PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
General for being unconstitutional and violative of Section 13, Article VII of the petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), respondent.
1987 Constitution; and DECLARES that Hon. Alberto C. Agra was a de A.M. No. 10-2-5-SC. March 17, 2010.*
facto officer during his tenure as Acting Secretary of Justice. IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
No pronouncement on costs of suit. CONSTITUTION TO APPOINTMENTS TO THE JU-
SO ORDERED.
Sereno (C.J.), Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Del _______________
Castillo, Abad, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe and Leonen,
JJ., concur.
* EN BANC.
Petition granted, designation of Hon. Alberto C. Agra as Acting Secretary of
667
Justice in a concurrent capacity with his position as Acting Solicitor General
annulled and voided. VOL. 615, March 17, 2010 667
Notes.—While the designation was in the nature of an acting and temporary De Castro vs. Judicial and Bar Council (JBC)
capacity, the words “hold the office” were employed. Such holding of office pertains DICIARY, ESTELITO P. MENDOZA, petitioner,
to both appointment and designation because the appointee or designate performs G.R. No. 191149. March 17, 2010.*
the duties and functions of the office. The 1987 Constitution in prohibiting dual or JOHN G. PERALTA, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC),
multiple offices, as well as incompatible offices, refers to the holding of the office, respondent.
and not to the nature of the appointment or designation, words which were not PETER IRVING CORVERA;
even found in Section 13, Article VII nor in Section 7, paragraph 2, Article IX-B. CHRISTIAN ROBERT S. LIM;
To “hold” an office means to “possess or occupy” the same, or “to be in possession ALFONSO V. TAN, JR.;
and administration,” which implies nothing less than the actual discharge of the NATIONAL UNION OF PEOPLE’S LAWYERS;
functions and duties of the office. (Funa vs. Ermita, 612 SCRA 308 [2010]) MARLOU B. UBANO;
Locus standi or legal standing has been defined as a personal and substantial INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
interest in a case such that the party has sustained or will sustain direct injury as represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON,
a result of the governmental act that is being challenged. (Galicto vs. Aquino III, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE
667 SCRA 150 [2012]) BAR;
——o0o—— MITCHELL JOHN L. BOISER;
© Copyright 2018 Central Book Supply, Inc. All rights reserved. BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN
The existence of a presumption indicating the guilt of the accused does not in
itself destroy the constitutional presumption of innocence unless the inculpating NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
presumption, together with all the evidence, or the lack of any evidence or LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS;
explanation, proves the accused’s guilt beyond a reasonable doubt. Until the LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY
LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE
accused’s guilt is shown in this manner, the presumption of innocence continues.
PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RE-
(Re: Conviction of Judge Adoracion G. Angeles, RTC, Br. 121, Caloocan City in
Criminal Cases Nos. Q-97-69655 to 56 for Child Abuse, 543 SCRA 196 [2008]) 668
668 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
CEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP)
CHAIRMAN VIJAE ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF
THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA;
WALDEN F. BELLO and LORETTA ANN P. ROSALES;
WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES,
represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO
DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-
VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and
GUINEVERE DE LEON. intervenors.
G.R. No. 191342. March 17, 2010.*
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor–Southern Luzon), and
ATTY. ROLAND B. INTING (IBP Governor–Eastern Visayas),
petitioners, vs. JUDICIAL AND BAR COUNCIL (JBC), respondent.
G.R. No. 191420. March 17, 2010.*
PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. JUDICIAL AND BAR
COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,
respondents.
Judicial Review; Locus Standi; Requisites; Words and Phrases; In public or
constitutional litigations, the Court is often burdened with the determination of the
locus standi of the petitioners due to the ever-present need to regulate the invocation
of the intervention of the Court to correct any official action or policy in order to
avoid obstructing the efficient functioning of public officials and offices involved in
public service; Black defines locus standi as “a right of appearance in a court of
justice on a given question.”—Black defines locus standi as “a right of appearance
in a court of justice on a given question.” In public or constitutional litigations, the
Court is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in
669
VOL. 615, March 17, 2010 669
De Castro vs. Judicial and Bar Council (JBC)
order to avoid obstructing the efficient functioning of public officials and
offices involved in public service. It is required, therefore, that the petitioner must
have a personal stake in the outcome of the controversy, for, as indicated in Agan,
Jr. v. Philippine International Air Terminals Co., Inc., 402 SCRA 612 (2003): The
question on legal standing is whether such parties have “alleged such a
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.” Accordingly, 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 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.
Same; Same; Taxpayer Suits; Quite often, the petitioner in a public action
sues as a citizen or taxpayer to gain locus standi, which is not surprising, for even
if the issue may appear to concern only the public in general, such capacities
nonetheless equip the petitioner with adequate interest to sue.—The assertion of a
public right as a predicate for challenging a supposedly illegal or unconstitutional
executive or legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as adversely affected
by the action complained against as are others, it is enough that he sufficiently
demonstrates in his petition that he is entitled to protection or relief from the
Court in the vindication of a public right. Quite often, as here, the petitioner in a
public action sues as a citizen or taxpayer to gain locus standi. That is not
surprising, for even if the issue may appear to concern only the public in general,
such capacities nonetheless equip the petitioner with adequate interest to sue.
In David v. Macapagal-Arroyo, 489 SCRA 160 (2006) the Court aptly explains why:
Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing
in public actions. The distinction was first laid down in Beauchamp v.
670
670 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: “In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied.” With
respect to taxpayer’s suits, Terr v. 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.”
Same; Same; Same; 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.—The Court rules that the petitioners have each demonstrated
adequate interest in the outcome of the controversy as to vest them with the
requisite locus standi. The issues before us are of transcendental importance to the
people as a whole, and to the petitioners in particular. Indeed, the issues affect
everyone (including the petitioners), regardless of one’s personal interest in life,
because they concern that great doubt about the authority of the incumbent
President to appoint not only the successor of the retiring incumbent Chief Justice,
but also others who may serve in the Judiciary, which already suffers from a far
too great number of vacancies in the ranks of trial judges throughout the country.
In any event, 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.
Same; Actual Case or Controversy; Although the position is not yet vacant,
the fact that the Judicial and Bar Council 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, because the next steps are the
public interview of the candidates, the preparation of the short list of candidates,
and the “interview of constitutional experts, as may be
671
VOL. 615, March 17, 2010 671
De Castro vs. Judicial and Bar Council (JBC)
needed.”—We hold that the petitions set forth an actual case or controversy
that is ripe for judicial determination. The reality is that the JBC already
commenced the proceedings for the selection of the nominees to be included in a
short list to be submitted to the President for consideration of which of them will
succeed Chief Justice Puno as the next Chief Justice. 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, because the next steps are the public
interview of the candidates, the preparation of the short list of candidates, and the
“interview of constitutional experts, as may be needed.” A part of the question to
be reviewed by the Court is whether the JBC properly initiated the process, there
being an insistence from some of the oppositors-intervenors that the JBC could
only do so once the vacancy has occurred (that is, after May 17, 2010). Another part
is, of course, whether the JBC may resume its process until the short list is
prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly
requires the President to appoint one from the short list to fill the vacancy in the
Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from
the occurrence of the vacancy.
Same; Same; The Court need not await the occurrence of the vacancy in the
position of the Chief Justice in order for the principal issue to ripe for judicial
determination by the Court.—We need not await the occurrence of the vacancy by
May 17, 2010 in order for the principal issue to 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. 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 it to intelligently adjudicate the issues. Herein,
the facts are not in doubt, for only legal issues remain.
Presidency; Appointments; Midnight Appointment Ban; The prohibition
against presidential appointments under Section 15, Article VII does not extend to
appointments in the Judiciary.—In the consolidated petitions, the petitioners, with
the exception of Soriano,
672
672 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Tolentino and Inting, submit that the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments under Section 15,
Article VII does not extend to appointments in the Judiciary. The Court agrees
with the submission.
Same; Same; Statutory Construction; 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.—As can be seen, Article VII is devoted
to the Executive Department, and, among others, it lists the powers vested by the
Constitution in the President. The presidential power of appointment is dealt with
in Sections 14, 15 and 16 of the Article. Article VIII is dedicated to the Judicial
Department and defines the duties and qualifications of Members of the Supreme
Court, among others. Section 4(1) and Section 9 of this Article are the provisions
specifically providing for the appointment of Supreme Court Justices. In
particular, Section 9 states that the appointment of Supreme Court Justices can
only be made by the President upon the submission of a list of at least three
nominees by the JBC; Section 4(1) of the Article mandates the President to fill the
vacancy within 90 days from the occurrence of the vacancy. 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. They would
have easily and surely written the prohibition made explicit in Section 15, Article
VII as being equally applicable to the appointment of Members of the Supreme
Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President
or Acting President making appointments within two months before the next
presidential elections and up to the end of the President’s or Acting President’s
term does not refer to the Members of the Supreme Court.
Same; Same; Same; Judgments; The reference to the records of the
Constitutional Commission did not advance or support the result in In Re
Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido
B. Vallarta as Judges of the Regional
673
VOL. 615, March 17, 2010 673
De Castro vs. Judicial and Bar Council (JBC)
Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City,
respectively (Valenzuela), 298 SCRA 408 (1998).—The reference to the records of
the Constitutional Commission did not advance or support the result
in Valenzuela. Far to the contrary, the records disclosed the express intent of the
framers to enshrine in the Constitution, upon the initiative of Commissioner
Eulogio Lerum, “a command [to the President] to fill up any vacancy therein within
90 days from its occurrence,” which even Valenzuelaconceded. The exchanges
during deliberations of the Constitutional Commission on October 8, 1986 further
show that the filling of a vacancy in the Supreme Court within the 90-day period
was a true mandate for the President.
Same; Same; Same; Same; The usage in Section 4(1), Article VIII of the
Constitution of the word shall—an imperative, operating to impose a duty that may
be enforced—should not be disregarded; Section 4(1) imposes on the President the
imperative duty to make an appointment of a Member of the Supreme Court within
90 days from the occurrence of the vacancy—the failure by the President to do so
will be a clear disobedience to the Constitution; The 90-day limitation fixed in
Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court
was undoubtedly a special provision to establish a definite mandate for the
President as the appointing power.—Moreover, the usage in Section 4(1), Article
VIII of the word shall—an imperative, operating to impose a duty that may be
enforced—should not be disregarded. Thereby, Sections 4(1) imposes on the
President the imperative duty to make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy. The failure by
the President to do so will be a clear disobedience to the Constitution. The 90-day
limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in
the Supreme Court was undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and cannot be defeated by
mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII
prevailed because it was “couched in stronger negative language.” Such
interpretation even turned out to be conjectural, in light of the records of the
Constitutional Commission’s deliberations on Section 4 (1), Article VIII.
Same; Same; Same; Same; 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
674
674 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
one found in Article VII—a misinterpretation like Valenzuela should not be
allowed to last after its false premises have been exposed; Valenzuela now deserves
to be quickly sent to the dustbin of the unworthy and forgettable.—In this
connection, PHILCONSA’s urging of a revisit and a review of Valenzuela is timely
and appropriate. 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. It further ignored that
the two provisions had no irreconcilable conflict, regardless of Section 15, Article
VII being couched in the negative. As judges, we are not to unduly interpret, and
should not accept an interpretation that defeats the intent of the framers.
Consequently, prohibiting the incumbent President from appointing a Chief
Justice on the premise that Section 15, Article VII extends to appointments in the
Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be
allowed to last after its false premises have been exposed. It will not do to merely
distinguish Valenzuela from these cases, for the result to be reached herein is
entirely incompatible with what Valenzuela decreed.Consequently,
Valenzuela now deserves to be quickly sent to the dustbin of the unworthy and
forgettable. We reverse Valenzuela.
Same; Same; Same; Judicial and Bar Council; Given the background and
rationale for the prohibition in Section 15, Article VII, the Court has no doubt that
the Constitutional Commission confined the prohibition to appointments made in
the Executive Department; If midnight appointments in the mold of Aytona v.
Castillo, 4 SCRA 1 (1962), were made in haste and with irregularities, or made by
an outgoing Chief Executive in the last days of his administration out of a desire to
subvert the policies of the incoming President or for partisanship, the appointments
to the Judiciary made after the establishment of the Judicial and Bar Council
(JBC) would not be suffering from such defects because of the JBC’s prior processing
of candidates.—Given the background and rationale for the prohibition in Section
15, Article VII, we have no doubt that the Constitutional Commission confined the
prohibition to appointments made in the Executive Department. The framers did
not need to extend the prohibition to appointments in the Judiciary, because their
establishment of the JBC and their subjecting the nomination and screening of
candidates for judicial positions to the unhurried and deliberate prior process of
the JBC ensured that there would no longer be mid-
675
VOL. 615, March 17, 2010 675
De Castro vs. Judicial and Bar Council (JBC)
night appointments to the Judiciary. If midnight appointments in the mold
of Aytona were made in haste and with irregularities, or made by an outgoing
Chief Executive in the last days of his administration out of a desire to subvert the
policies of the incoming President or for partisanship, 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. Indeed, it is
axiomatic in statutory construction that the ascertainment of the purpose of the
enactment is a step in the process of ascertaining the intent or meaning of the
enactment, because the reason for the enactment must necessarily shed
considerable light on “the law of the statute,” i.e., the intent; hence, 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.
Same; Same; Same; Same; The intervention of the Judicial and Bar Council
(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.—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. The
experience from the time of the establishment of the JBC shows that even
candidates for judicial positions at any level backed by people influential with the
President could not always be assured of being recommended for the consideration
of the President, because they first had to undergo the vetting of the JBC and pass
muster there. Indeed, the creation of the JBC was precisely intended to de-
politicize the Judiciary by doing away with the intervention of the Commission on
Appointments. This insulating process was absent from the Aytona midnight
appointment.
Same; Same; Same; The fault of Valenzuela was that it accorded no weight
and due consideration to the confirmation of Justice Regalado—Valenzuela was
weak, because it relied on interpretation to determine the intent of the framers
rather than on the deliberations of the Constitutional Commission.—As earlier
stated, the non-applicability of Section 15, Article VII to appointments in the
Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC
itself when it met on March 9, 1998 to discuss the question raised by some sectors
about the “constitutionality of xxx appointments” to the Court of Appeals in light
of the forthcoming presiden-
676
 676 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
tial elections. He assured that “on the basis of the (Constitutional)
Commission’s records, the election ban had no application to appointments to the
Court of Appeals.” This confirmation was accepted by the JBC, which then
submitted to the President for consideration the nominations for the eight
vacancies in the Court of Appeals. The fault of Valenzuela was that it accorded no
weight and due consideration to the confirmation of Justice
Regalado. Valenzuela was weak, because it relied on interpretation to determine
the intent of the framers rather than on the deliberations of the Constitutional
Commission. Much of the unfounded doubt about the President’s power to appoint
during the period of prohibition in Section 15, Article VII could have been dispelled
since its promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished member of the
Constitutional Commission like Justice Regalado.
Same; Same; Same; 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 ensuring the independence of the Judicial Department from the
Executive and Legislative Departments.—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 ensuring the independence of the
Judicial Department from the Executive and Legislative Departments. Such a
holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes
of political leaders vying for the Presidency in a presidential election.
Consequently, the wisdom of having the new President, instead of the current
incumbent President, appoint the next Chief Justice is itself suspect, and cannot
ensure judicial independence, because the appointee can also become beholden to
the appointing authority. In contrast, the appointment by the incumbent President
does not run the same risk of compromising judicial independence, precisely
because her term will end by June 30, 2010.
Same; Same; Same; In an extreme case, the Court can even raise a doubt on
whether a Judicial and Bar Council (JBC) list is necessary at all for the President—
any President—to appoint a Chief Justice if the appointee is to come from the ranks
of the sitting justices of the Supreme Court.—As a matter of fact, in an extreme case,
we can even raise a doubt on whether a JBC list is necessary at all for the
President—any President—to appoint a Chief Justice if the
677
VOL. 615, March 17, 2010 677
De Castro vs. Judicial and Bar Council (JBC)
appointee is to come from the ranks of the sitting justices of the Supreme
Court. Sec. 9, Article VIII says: xxx. The Members of the Supreme Court xxx shall
be appointed by the President from a list of at least three nominees prepared by
the Judicial and Bar Council for any vacancy. Such appointments need no
confirmation. xxx The provision clearly refers to an appointee coming into the
Supreme Court from the outside, that is, a non-member of the Court aspiring to
become one. It speaks of candidates for the Supreme Court, not of those who are
already members or sitting justices of the Court, all of whom have previously been
vetted by the JBC. Can the President, therefore, appoint any of the incumbent
Justices of the Court as Chief Justice? The question is not squarely before us at
the moment, but it should lend itself to a deeper analysis if and when
circumstances permit. It should be a good issue for the proposed Constitutional
Convention to consider in the light of Senate President Juan Ponce Enrile’s
statement that the President can appoint the Chief Justice from among the sitting
justices of the Court even without a JBC list.
Same; Same; Same; Supreme Court; Judiciary Act of 1948; Legal Research;
The express reference in Sections 4(1) and 9 of Article VIII of the Constitution to a
Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice
to head the membership of the Supreme Court—otherwise, they would have simply
written so in the Constitution; The framers intended the position of Chief Justice to
be permanent, not one to be occupied in an acting or temporary capacity; It ought
to be remembered that Section 12 of the Judiciary Act of 1948 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.—A review of Sections 4(1) and 9 of Article VIII
shows that 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. 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. The express reference to a Chief
Justice abhors the idea that the framers contemplated an Acting Chief Justice to
head the membership of the Supreme Court. Otherwise, they would have simply
written so in the Constitution.
678
678 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to
forestall the imperative need to appoint the next Chief Justice soonest is to defy
the plain intent of the Constitution. For sure, the framers intended the position of
Chief Justice to be permanent, not one to be occupied in an acting or temporary
capacity. In relation to the scheme of things under the present Constitution,
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. It ought to be remembered,
however, that it 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.
Same; Same; Same; Same; The lack of any appointed occupant of the office of
Chief Justice harms the independence of the Judiciary, because the Chief Justice is
the head of the entire Judiciary.—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. Under the Constitution, the heads of the Legislative and
Executive Departments are popularly elected, and whoever are elected and
proclaimed at once become the leaders of their respective Departments. However,
the lack of any appointed occupant of the office of Chief Justice harms the
independence of the Judiciary, because the Chief Justice is the head of the entire
Judiciary. The Chief Justice performs functions absolutely significant to the life of
the nation. With the entire Supreme Court being the Presidential Electoral
Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no
obstacle to the appointment of the next Chief Justice, aside from its being
mandatory for the incumbent President to make within the 90-day period from
May 17, 2010, there is no justification to insist that the successor of Chief Justice
Puno be appointed by the next President.
Mandamus; Requisites.—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.
It is proper when the act against which it is directed is one addressed to the
discretion of the tribunal or officer. Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way. For mandamus to
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lie, the following requisites 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.
Same; Presidency; Appointments; Judicial and Bar Council; The Judicial
and Bar Council (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.—Section 4(1) and Section 9, Article VIII, mandate the
President to fill the vacancy in the Supreme Court within 90 days from the
occurrence of the vacancy, and within 90 days from the submission of the list, in
the case of the lower courts. The 90-day period is directed at the President, not at
the JBC. Thus, the JBC should start the process of selecting the candidates to fill
the vacancy in the Supreme Court before the occurrence of the vacancy. Under the
Constitution, 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.
The JBC has no discretion to submit the list 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. For the JBC to do so will be unconscionable
on its part, considering that it will thereby effectively and illegally deprive the
President of the ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before making the
appointment.
Same; Same; Same; Same; The duty of the Judicial and Bar Council (JBC)
to submit a list of nominees before the start of the President’s mandatory 90-day
period to appoint is ministerial, but its selection of the candidates whose names will
be in the list to be submitted to the President lies within the discretion of the JBC.—
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 selection of the
candidates whose names will be in the list to be submitted to the President lies
within the discretion of the JBC. The object of the petitions for mandamus herein
should only refer to the
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De Castro vs. Judicial and Bar Council (JBC)
duty to submit to the President the list of nominees for every vacancy in the
Judiciary, because in order to constitute unlawful neglect of duty, there must be
an unjustified delay in performing that duty. For mandamus to lie against the
JBC, therefore, there should be an unexplained delay on its part in recommending
nominees to the Judiciary, that is, in submitting the list to the President.
Words and Phrases; “Ministerial Act” and “Discretionary Act,”
Distinguished.—The distinction between a ministerial act and a discretionary one
has been delineated in the following manner: The distinction between a ministerial
and discretionary act is well delineated. 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. If the law imposes a duty upon a public
officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires neither the
exercise of official discretion or judgment.
CARPIO-MORALES, J., Dissenting Opinion:
Supreme Court; Words and Phrases; Primus Inter Pares; The Latin maxim
primus inter pares indicates that a person is the most senior of a group of people
sharing the same rank or office.—Primus Inter Pares. First among equals. The
Latin maxim indicates that a person is the most senior of a group of people sharing
the same rank or office. The phrase has been used to describe the status, condition
or role of the prime minister in most parliamentary nations, the high-ranking
prelate in several religious orders, and the chief justice in many supreme courts
around the world. The inclination to focus on the inter pares without due emphasis
on the primus/prima has spawned contemporary discourse that revives the
original tug-of-war between domination and parity, which impasse the conceived
maxim precisely intended to resolve. In the present case, several arguments
attempt to depict a mirage of doomsday scenarios arising from the impending
vacancy of the primus in the Court as a springboard for their plea to avert a
supposed undermining of the independence of the judiciary. In reality,
the essential question boils down to the limitation on the appointing
power of the President.681
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Presidency; Appointments; Midnight Appointment Ban; Statutory
Construction; It is unfortunate that the ponencia chiefly relies on the trivialities of
draftsmanship style in arriving at a constitutional construction.—The first
ratiocination adverts to the “organization and arrangement of the provisions of
the Constitution” that was, as the ponenciadeclares, purposely made by the
framers of the Constitution to “reflect their intention and manifest their vision” of
the charter’s contents. It is unfortunate that the ponencia chiefly relies on the
trivialities of draftsmanship style in arriving at a constitutional construction.
Same; Same; Same; Same; Judicial and Bar Council; Checks and Balances;
That the power of judicial appointment was lodged in the President is a recognized
measure of limitation on the power of the judiciary, which measure, however, is
counterbalanced by the election ban due to the need to insulate the judiciary from
the political climate of presidential elections—to abandon this interplay of checks
and balances on the mere inference that the establishment of the JBC could de-
politicize the process of judicial appointments lacks constitutional mooring.—The
allocation of three Articles in the Constitution devoted to the respective dynamics
of the three Departments was deliberately adopted by the framers to allocate the
vast powers of government among the three Departments in recognition of the
principle of separation of powers. The equation, however, does not end there. Such
kind of formulation detaches itself from the concomitant system of checks and
balances. Section sequencing alone of Sections 14, 15 and 16 of Article VII, as
explained in the fourth ratiocination, does not suffice to signify functional
structuring. That the power of judicial appointment was lodged in the President is
a recognized measure of limitation on the power of the judiciary, which measure,
however, is counterbalanced by the election ban due to the need to insulate the
judiciary from the political climate of presidential elections. To abandon this
interplay of checks and balances on the mere inference that the establishment of
the JBC could de-politicize the process of judicial appointments lacks
constitutional mooring.
Same; Same; Same; Same; The constitutional prohibition in Section 15 found
its roots in the case of Aytona v. Castillo, 4 SCRA 1 (1962), where among the
“midnight” or “last minute” appointments voided to abort the abuse of presidential
prerogatives or partisan efforts to fill vacant positions were one in the Supreme
Court and two
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De Castro vs. Judicial and Bar Council (JBC)
in the Court of Appeals.—The constitutional prohibition in Section 15
found its roots in the case of Aytona v. Castillo, 4 SCRA 1 (1962) where
among the “midnight” or “last minute” appointments voided to abort the abuse of
presidential prerogatives or partisan efforts to fill vacant positions were one in the
Supreme Court and two in the Court of Appeals. Heeding Aytona’s admonition, the
Constitutional Commission (ConCom) saw it fit to provide for a comprehensive ban
on midnight appointments, finding that the establishment of the JBC is not
enough to safeguard or insulate judicial appointments from politicization.
Same; Same; Same; Same; Taking into account how the framers
painstakingly rummaged through various sections of the Constitution and came up
with only one exception with the need to specify the executive department, it insults
the collective intelligence and diligence of the Constitutional Commission (ConCom)
to postulate that it intended to exclude the judiciary but missed out on that one; To
hold that the ban on midnight appointments applies only to executive positions, and
not to vacancies in the judiciary and independent constitutional bodies, is to make
the prohibition practically useless.—It is simplistic and unreliable for
the ponencia to contend that had the framers intended to extend the ban in Article
VII to appointments in the judiciary, they would have easily and surely written so
in Article VIII, for it backlashes the question that had the framers intended to
exclude judicial appointments in Article VIII from the prohibition in Article VII,
they would have easily and surely written so in the excepting proviso in Article
VII. Taking into account how the framers painstakingly rummaged through
various sections of the Constitution and came up with only one exception with the
need to specify the executive department, it insults the collective intelligence and
diligence of the ConCom to postulate that it intended to exclude the judiciary but
missed out on that one. To hold that the ban on midnight appointments applies
only to executive positions, and not to vacancies in the judiciary and independent
constitutional bodies, is to make the prohibition practically useless. It bears noting
that Section 15, Article VII of the Constitution already allows the President, by
way of exception, to make temporary appointments in the Executive Department
during the prohibited period. Under this view, there is virtually no restriction on
the President’s power of appointment during the prohibited period. The general
rule is clear since the prohibition applies to ALL kinds of midnight appointments.
683
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The Constitution made no distinction. Ubi lex non distinguit nec nos
distinguere debemos.
Same; Same; Same; Same; Expressio Unius; There is no clear circumstance
that would indicate that the enumeration in the exception in Section 15, Article VII
of the Constitution was not intended to be exclusive.—The exception is likewise
clear. Expressio unius et exclusio alterius. The express mention of one person,
thing or consequence implies the exclusion of all others. There is no clear
circumstance that would indicate that the enumeration in the exception was not
intended to be exclusive. Moreover, the fact that Section 15 was couched in
negative language reinforces the exclusivity of the exception. Under the rules of
statutory construction, exceptions, as a general rule, should be strictly but
reasonably construed; they extend only so far as their language fairly warrants,
and all doubts should be resolved in favor of the general provisions rather than the
exception. Where a general rule is established by statute with exceptions, the court
will not curtail the former nor add to the latter by implication.
Same; Same; Same; Same; Judgments; The ponencia should not hastily
reverse, on the sole basis of Justice Regalado’s opinion, the Court’s unanimous en
banc decision In Re Appointments of Hon. Valenzuela & Hon. Vallarta, 298 SCRA
408 (1998), penned by Chief Justice Andres Narvasa, and concurred in by, inter
alia, Associate Justices who later became Chief Justices—Hilario Davide, Jr.,
Artemio Panganiban and Reynato Puno.—In its third ratiocination,
the ponencia faults Valenzuela for not according weight and due consideration to
the opinion of Justice Florenz Regalado. It accords high regard to the opinion
expressed by Justice Regalado as a former ConCom Member, to the exception of
the opinion of all others similarly situated. It bears noting that the Court had
spoken in one voice in Valenzuela. The ponencia should not hastily reverse, on the
sole basis of Justice Regalado’s opinion, the Court’s unanimous en banc decision
penned by Chief Justice Andres Narvasa, and concurred in by, inter alia, Associate
Justices who later became Chief Justices—Hilario Davide, Jr., Artemio
Panganiban and Reynato Puno. The line of reasoning is specious. If that is the case
and for accuracy’s sake, we might as well reconvene all ConCom members and put
the matter to a vote among them.684
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De Castro vs. Judicial and Bar Council (JBC)
Same; Same; Same; Same; Casus Omissus; The proper interpretation
therefore of a Constitution depends more on how it was understood by the people
adopting it than in the framers’ understanding thereof; The people may not be of
the same caliber as Justice Regalado, but they simply could not read into Section
15 something that is not there—casus omissus pro omisso habendus est.—
Providentially, jurisprudence is replete with guiding principles to
ascertain the true meaning of the Constitution when the provisions as
written appear unclear and the proceedings as recorded provide little
help: While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason and
purpose of the resulting Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention “are of value
as showing the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large majority who did
not talk, much less of the mass of our fellow citizens whose votes at the polls gave
that instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face.” The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the
framers’ understanding thereof. (underscoring supplied) The clear import of
Section 15 of Article VII is readily apparent. The people may not be of the same
caliber as Justice Regalado, but they simply could not read into Section 15
something that is not there. Casus omissus pro omisso habendus est.
Same; Same; Same; Considering that Section 15 of Article VII is an express
limitation on the President’s power of appointment, the running of the 90-day period
is deemed suspended during the period of the ban which takes effect only once every
six years.—In the present case, there can only arise a legal impossibility when
the JBC list is submitted or the vacancy occurred during the appointments ban
and the 90-day period would expire before the end of the appointments ban, in
which case the fresh 90-day period should start to run at noon of June 30. This was
the factual antecedent respecting the trial court judges involved in Valenzuela.
There also arises a legal impossibility when the list is submitted or the vacancy
occurred prior to the ban and no appointment was made before the ban starts,
685
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De Castro vs. Judicial and Bar Council (JBC)
rendering the lapse of the 90-day period within the period of the ban, in
which case the remaining period should resume to run at noon of June 30. The
outgoing President would be released from non-fulfillment of the constitutional
obligation, and the duty devolves upon the new President. Considering also that
Section 15 of Article VII is an express limitation on the President’s power of
appointment, the running of the 90-day period is deemed suspended during the
period of the ban which takes effect only once every six years.
Same; Same; Judicial and Bar Council; The ponencia’s interpretation that
the Judicial and Bar Council (JBC) has until 17 May 2010, at the latest, within
which to submit to the President the list of nominees for the position of Chief Justice
is absurd as it takes the application and nomination stages in isolation from the
whole appointment process—for the ponencia, the filling of the vacancy only
involves the President, and the JBC was not considered when the period was
increased from 60 days to 90 days.—The ponencia also holds that the JBC has until
May 17, 2010, at the latest, within which to submit to the President the list of
nominees for the position of Chief Justice. It declares that the JBC should start
the process of selecting the candidates to fill the vacancy in the Supreme Court
before the occurrence of the vacancy, explaining that the 90-day period in the
proviso, “Any vacancy shall be filled within ninety days from the occurrence
thereof,” is addressed to the President, not to the JBC. Such interpretation is
absurd as it takes the application and nomination stages in isolation from the
whole appointment process. For the ponencia, the filling of the vacancy only
involves the President, and the JBC was not considered when the period was
increased from 60 days to 90 days. The sense of the Concom is the exact opposite.
The flaw in the reasoning is made more evident when the vacancy occurs by virtue
of death of a member of the Court. In that instance, the JBC could never anticipate
the vacancy, and could never submit a list to the President before the 90-day
period.
Same; Same; Supreme Court; It is ironic for the ponencia to recognize that the
President may need as much as 90 days of reflection in appointing a member of the
Court, and yet abhor the idea of an acting Chief Justice in the interregnum as
provided for by law, confirmed by tradition, and settled by jurisprudence to be an
internal matter—the express allowance of a 90-day period of vacancy rebuts any
policy argument on the necessity to avoid a vacuum of even a single day in the
position of an appointed Chief Justice.—It is ironic
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De Castro vs. Judicial and Bar Council (JBC)
for the ponencia to state on the one hand that the President would
be deprived of ample time to reflect on the qualifications of the nominees, and to
show on the other hand that the President has, in recent history, filled the vacancy
in the position of Chief Justice in one or two days. It is ironic for the ponencia to
recognize that the President may need as much as 90 days of reflection in
appointing a member of the Court, and yet abhor the idea of an acting Chief Justice
in the interregnum as provided for by law, confirmed by tradition, and settled by
jurisprudence to be an internal matter. The express allowance of a 90-day period
of vacancy rebuts any policy argument on the necessity to avoid a vacuum of even
a single day in the position of an appointed Chief Justice.
ame; Same; Same; As a member of the Court, I strongly take exception to the
ponencia’s implication that the Court cannot function without a sitting Chief
Justice.—As a member of the Court, I strongly take exception to
the ponencia’s implication that the Court cannot function without a
sitting Chief Justice. To begin with, judicial power is vested in one Supreme
Court and not in its individual members, much less in the Chief Justice alone.
Notably, after Chief Justice Puno retires, the Court will have 14 members left,
which is more than sufficient to constitute a quorum. The fundamental principle
in the system of laws recognizes that there is only one Supreme Court from whose
decisions all other courts are required to take their bearings. While most of the
Court’s work is performed by its three divisions, the Court remains one court—
single, unitary, complete and supreme. Flowing from this is the fact that, while
individual justices may dissent or only partially concur, when the Court states
what the law is, it speaks with only one voice. The Court, as a collegial body,
operates on a “one member, one vote” basis, whether it sits en banc or in divisions.
The competence, probity and independence of the Court en banc, or those of the
Court’s Division to which the Chief Justice belongs, have never depended on
whether the member voting as Chief Justice is merely an acting Chief Justice or a
duly appointed one.
NACHURA, J., Separate Opinion:
Judicial Review; The consolidated petitions should be dismissed, because they
do not raise an actual case or controversy ripe for judicial determination.—After
careful perusal of the pleadings and painstaking study of the applicable law and
jurisprudence, I
687
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De Castro vs. Judicial and Bar Council (JBC)
earnestly believe that the consolidated petitions should be dismissed,
because they do not raise an actual case or controversy ripe for judicial
determination. As an essential ingredient for the exercise of the power of judicial
review, an actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims susceptible to judicial resolution. The controversy
must be justiciable—definite and concrete—touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on one hand, and a denial thereof, on
the other; that is, the case must concern a real and not a merely theoretical
question or issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature, as distinguished
from an opinion advising what the law would be upon a hypothetical state of facts.
The rationale for this requirement is to prevent the courts through avoidance of
premature adjudication from entangling themselves in abstract disagreements,
and for us to be satisfied that the case does not present a hypothetical injury or a
claim contingent upon some event that has not and indeed may never transpire.
Thus, justiciability requires (1) that there be an actual controversy between or
among the parties to the dispute; (2) that the interests of the parties be adverse;
(3) that the matter in controversy be capable of being adjudicated by judicial power;
and (4) that the determination of the controversy will result in practical relief to
the complainant.
Same; Declaratory Relief; Jurisdiction; Supreme Court; Settled is the rule
that petitions for declaratory relief are outside the jurisdiction of this Court.—As to
the petition filed by Estelito Mendoza, while it is captioned as an administrative
matter, the same is in the nature of a petition for declaratory relief.
Mendoza pleads that this Court interpret two apparently conflicting provisions of
the Constitution—Article VII, Section 15 and Article VIII, Section 4(1). Petitioner
Mendoza specifically prays for such a ruling “for the guidance of the [JBC],” a
relief evidently in the nature of a declaratory judgment. Settled is the rule that
petitions for declaratory relief are outside the jurisdiction of this Court.
Moreover, the Court does not sit to adjudicate mere academic questions to
satisfy scholarly interest, however intellectually challenging. While
Mendoza and the other petitioners espouse worthy causes, they have presented
before this Court issues which are still subject to unfore-
688
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De Castro vs. Judicial and Bar Council (JBC)
seen possibilities. In other words, the issues they raised are hypothetical
and unripe for judicial determination.
Same; Same; Advisory Opinions; The function of the courts is to determine
controversies between litigants and not to give advisory opinions.—To repeat for
emphasis, before this Court steps in to wield its awesome power of deciding cases,
there must first be an actual controversy ripe for judicial adjudication.
Here, the allegations in all the petitions are conjectural or anticipatory. No actual
controversy between real litigants exists. These consolidated petitions, in other
words, are a “purely academic exercise.” Hence, any resolution that this Court
might make would constitute an attempt at abstraction that can only lead to
barren legal dialectics and sterile conclusions unrelated to actualities. Moreover,
the function of the courts is to determine controversies between litigants and not
to give advisory opinions. Here, petitioners are asking this Court to render an
advisory opinion on what the JBC and the President should do. To accede to it is
tantamount to an incursion into the functions of the executive department. This
will further inappropriately make the Court an adviser of the President.
Same; Same; Same; If petitioners only want guidance from this Court, then,
let it be stated that enough guidance is already provided by the Constitution, the
relevant laws, and the prevailing jurisprudence on the matter—the Court must not
be unduly burdened with petitions raising abstract, hypothetical, or contingent
questions.—A final note. If petitioners only want guidance from this Court, then,
let it be stated that enough guidance is already provided by the Constitution, the
relevant laws, and the prevailing jurisprudence on the matter. The Court must
not be unduly burdened with petitions raising abstract, hypothetical, or
contingent questions. As fittingly phrased by Chief Justice Puno in Lozano—
Given the sparseness of our resources, the capacity of courts to render efficient
judicial service to our people is severely limited. For courts to indiscriminately
open their doors to all types of suits and suitors is for them to unduly overburden
their dockets, and ultimately render themselves ineffective dispensers of justice.
To be sure, this is an evil that clearly confronts our judiciary today.689
VOL. 615, March 17, 2010 689
De Castro vs. Judicial and Bar Council (JBC)
BRION, J., Separate Opinion:
Judicial Review; Locus Standi; Jurisprudence is replete with precedents on
the liberal appreciation of the locus standi rule on issues that are of transcendental
concern to the nation, and the petitioners very well qualify under these rulings.—I
completely agree with the ponencia’s ruling on the parties’ standing, their locus
standi, to bring their petitions and interventions in their capacities as citizens and
lawyers who stand to be affected by our ruling as lawyers or by the impact of our
ruling on the nation and the all-important electoral exercise we shall hold in May
2010. Jurisprudence is replete with precedents on the liberal appreciation of
the locus standi rule on issues that are of transcendental concern to the nation,
and the petitioners very well qualify under these rulings. In this sense, locus
standi is not a critical issue in the present case. In fact, the concern voiced out
during the Court’s deliberations, is more on how participation can be limited to
those who have substantial contributions, through their submissions, to the
resolution of the grave issues before the Court.
Same; Same; I disagree with the ponencia’s ruling on justiciability as I believe
some of the petitions before us do not reach the required level of justiciability; others,
however, qualify so that my disagreement with the lack of justiciability of some of
the petitions need not hinder the Court’s consideration of the main issue at hand.—
While the rule on locus standi can be relaxed, the rule on the need for an actual
justiciable case that is ripe for adjudication addresses a different concern and
cannot be similarly treated. I disagree with the ponencia’s ruling on
justiciability as I believe some of the petitions before us do not reach the
required level of justiciability; others, however, qualify as discussed
below so that my disagreement with the lack of justiciability of some of
the petitions need not hinder the Court’s consideration of the main issue
at hand. The basic requisite before this Court can rule is the presence of an actual
case calling for the exercise of judicial power. This is a requirement that the
Constitution itself expressly imposes; in granting the Court judicial power and in
defining the grant, the Constitution expressly states that judicial power includes
the duty to settle actual controversies involving rights which are legally
demandable and enforceable. Thus, the Court does not issue advisory opinions, nor
do we pass upon hypo-
690
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De Castro vs. Judicial and Bar Council (JBC)
thetical cases, feigned problems or friendly suits collusively arranged
between parties without real adverse interests. Courts cannot adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging
they may be. As a condition precedent to the exercise of judicial power, an actual
controversy between litigants must first exist.
Supreme Court; Judicial and Bar Council; The Supreme Court’s power of
supervision is particularly relevant in this case since the Judicial and Bar Council
(JBC) was created “under the supervision of the Supreme Court,” with the
“principal function of recommending appointees to the Judiciary.”—This aspect of
the power of the Court—its power of supervision—is particularly relevant in this
case since the JBC was created “under the supervision of the Supreme Court,” with
the “principal function of recommending appointees to the Judiciary.” In the same
manner that the Court cannot dictate on the lower courts on how they should
decide cases except through the appeal and review process provided by the Rules
of Court, so also cannot the Court intervene in the JBC’s authority to discharge its
principal function. In this sense, the JBC is fully independent as shown by A.M.
No. 03-11-16-SC or Resolution Strengthening The Role and Capacity of the Judicial
and Bar Council and Establishing the Offices Therein. In both cases, however and
unless otherwise defined by the Court (as in A.M. No. 03-11-16-SC), the Court can
supervise by ensuring the legality and correctness of these entities’ exercise of
their powers as to means and manner, and interpreting for them the constitutional
provisions, laws and regulations affecting the means and manner of the exercise
of their powers as the Supreme Court is the final authority on the interpretation
of these instruments. A prime example of the exercise of the Court’s power of
supervision is 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 (hereinafter referred to as Valenzuela) where the
Court nullified the oath of office taken by Judge Valenzuela, while at the same
time giving its interpretation of how the election ban against appointment operates
on the Judiciary, thereby setting the guidelines on how Section 15, Article VII is
to be read and interpreted. The Valenzuela case shall be discussed more fully
below.691
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De Castro vs. Judicial and Bar Council (JBC)
Same; Same; An administrative matter that is entered in the Court’s docket
is either an administrative case (A.C.) or an administrative matter (A.M.) submitted
to the Court for its consideration and action pursuant to its power of supervision;
An A.C. involves disciplinary and other actions over members of the Bar, based on
the Court’s supervision over them arising from the Supreme Court’s authority to
promulgate rules relating to the admission to the practice of law and to the
Integrated Bar; An A.M. is a matter based on the Supreme Court’s power of
supervision—under Section 6, Article VIII, this refers to the Court’s administrative
supervision over all courts and the personnel thereof, and, under Section 8, it refers
to its supervision over the JBC.—An administrative matter that is entered in the
Court’s docket is either an administrative case (A.C.) or an administrative matter
(A.M.) submitted to the Court for its consideration and action pursuant to its power
of supervision. An A.C. involves disciplinary and other actions over members of the
Bar, based on the Court’s supervision over them arising from the Supreme Court’s
authority to promulgate rules relating to the admission to the practice of law and
to the Integrated Bar. Closely related to A.C. cases are the Bar Matter (B.M.) cases
particularly involving admission to the practice of law. An A.M. is a matter based
on the Supreme Court’s power of supervision: under Section 6, Article VIII, this
refers to administrative supervision over all courts and the personnel thereof;
under Section 8, it refers to its supervision over the JBC. In using an
administrative matter as its medium, the Mendoza petition cites as basis the effect
of a complete election ban on judicial appointments (in view of the already high
level of vacancies and the backlog of cases) and submits this as an administrative
matter that the Court, in the exercise of its supervision over the Judiciary, should
act upon. At the same time, it cites the “public discourse and controversy” now
taking place because of the application of the election ban on the appointment of
the Chief Justice, citing in this regard the very same reasons mentioned
in Valenzuela about the need to resolve the issue and avoid the recurrence of
conflict thereon between the Executive and the Judiciary on the matter; and the
need to “avoid any possible polemics concerning the matter.” The petition mentions
as well that the Court addressed the election ban issue in Valenzuela as an A.M.
case, and apparently takes the lead from this decided A.M. matter.692
692 SUPREME COURT REPORTS ANNOTATED
 De Castro vs. Judicial and Bar Council (JBC)
Same; Same; Declaratory Relief; The Supreme Court’s supervision over the
Judicial and Bar Council (JBC), the latter’s need for guidance, and the existence of
an actual controversy that Soriano and Tolentino cite, save the Mendoza petition
from being one for declaratory relief, which petition is originally cognizable by the
Regional Trial Court, not by this Court.—Given the justiciable Soriano and
Tolentino petitions that directly address the JBC and its activities, the impact of
the above-outlined realities on the grant of a writ of prohibition, and the
undeniable supervision that the Supreme Court exercises over the JBC as well as
its role as the interpreter of the Constitution—sufficiently compelling reason
exists to recognize the Mendoza petition as a properly filed A.M.
petition that should fully be heard in these proceedings to fully ventilate the
supervisory aspect of the Court’s relationship with the JBC and to reflect,
once again, how this Court views the issues first considered
in Valenzuela. The Court’s supervision over the JBC, the latter’s need for
guidance, and the existence of an actual controversy that Soriano and Tolentino
cite, save the Mendoza petition from being one for declaratory relief, which petition
is originally cognizable by the Regional Trial Court, not by this Court.
Same; Same; Both by law and history, the Chief Justice has always been a
Member of the Court—although, as a primus inter pares—appointed by the
President together with every other Associate Justice. For this reason, we should
dismiss the Soriano petition for lack of merit.—The use of the generic term
“Members of the Supreme Court” under Section 9, Article VIII in delineating the
appointing authority under the 1987 Constitution, is not new. This was the term
used in the present line of Philippine Constitutions, from 1935 to 1987, and the
inclusion of the Chief Justice with the general term “Member of the Court” has
never been in doubt. In fact, Section 4(1) of the present Constitution itself confirms
that the Chief Justice is a Member of the Court when it provides that the
Court “may sit en banc or, in its discretion, in divisions of three, five, or seven
Members.” The Chief Justice is a Member of the En Banc and of the First
Division—in fact, he is the Chair of the En Banc and of the First Division—but
even as Chair is counted in the total membership of the En Banc or the Division
for all purposes, particularly of quorum. Thus, at the same time that Section 4(1)
speaks of a “Supreme Court. . . composed of one Chief Justice and fourteen
Associate Justices,” it likewise calls all of them Members in defining how they will
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De Castro vs. Judicial and Bar Council (JBC)
sit in the Court. Thus, both by law and history, the Chief Justice has always
been a Member of the Court—although, as a primus inter pares—appointed by the
President together with every other Associate Justice. For this reason, we should
dismiss the Soriano petition for lack of merit.
Same; Same; Appointments; Judiciary; From their wordings, urgency leaps
up from Section 4(1) of Article VIII of the Constitution while no such message
emanates from Section 9—in the latter the Judicial and Bar Council (JBC) appears
free to determine when a submission is to be made, obligating the President to issue
appointments within 90 days from the submission of the JBC list; Section 9 may
offer more flexibility in its application as the mandate for the President is to issue
appointments within 90 days from submission of the list, without specifying when
the submission should be made.—Section 15 on its face disallows any appointment
in clear negative terms (shall not make) without specifying the appointments
covered by the prohibition. From this literal reading springs the argument that no
exception is provided (except the exception found in Section 15 itself) so that even
the Judiciary is covered by the ban on appointments. On the other hand, Section
4(1) is likewise very clear and categorical in its terms: any vacancy in the
Court shall be filled within 90 days from its occurrence. In the way of Section 15,
Section 4(1) is also clear and categorical and provides no exception; the
appointment refers solely to the Members of the Supreme Court and does not
mention any period that would interrupt, hold or postpone the 90-day requirement.
Section 9 may offer more flexibility in its application as the mandate for the
President is to issue appointments within 90 days from submission of the list,
without specifying when the submission should be made. From their wordings,
urgency leaps up from Section 4(1) while no such message emanates from Section
9; in the latter the JBC appears free to determine when a submission is to be made,
obligating the President to issue appointments within 90 days from the submission
of the JBC list. From this view, the appointment period under Section 9 is one that
is flexible and can move. Thus, in terms of conflict, Sections 4(1) and Sections 15
can be said to be directly in conflict with each other, while a conflict is much less
evident from a comparison of Sections 9 and 15. This conclusion answers the verba
legis argument of the Peralta petition that when the words or terms of a statute or
provision is clear and unambiguous, then no interpretation is necessary as the
694
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De Castro vs. Judicial and Bar Council (JBC)
words or terms shall be understood in their ordinary meaning. In this case,
the individual provisions, in themselves, are clear; the conflict surfaces when they
operate in tandem or against one another.
Same; Same; Same; Same; Judgments; It appears clear that 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
(Valenzuela), 298 SCRA 408 (1998), should be read and appreciated for what it is—
a ruling made on the basis of the Court’s supervision over judicial personnel that
upholds the election ban as against the appointment of lower court judges appointed
pursuant to the period provided by Section 9 of Article VIII—Valenzuela’s
application to the filling up of a vacancy in the Supreme Court is a mere obiter
dictum as the Court is largely governed by Section 4(1) with respect to the period of
appointment.—The Valenzuela decision gives the full flavor of how the election ban
issue arose because of Chief Justice Narvasa’s very candid treatment of the facts
and the issue. Valenzuela openly stated that at the root of the dispute was the then
existing vacancy in the Court and the difference of opinion on the matter between
the Executive and the Court on the application of Section 15, Article VII, in
relation with Section 4(1) and 9 of Article VIII, of the Constitution. What appears
very clear from the decision, however, is that the factual situation the Court ruled
upon, in the exercise of its supervision of court personnel, was the appointment by
the President of two RTC judges during the period of the ban. It is clear from the
decision, too, that no immediate appointment was ever made to the Court for the
replacement of retired Justice Ricardo Francisco as the JBC failed to meet on the
required nominations prior to the onset of the election ban. From this perspective,
it appears clear to me that Valenzuela should be read and appreciated for what it
is—a ruling made on the basis of the Court’s supervision over judicial
personnel that upholds the election ban as against the appointment of lower court
judges appointed pursuant to the period provided by Section 9 of Article VIII.
Thus, Valenzuela’s application to the filling up of a vacancy in the Supreme Court
is a mere obiter dictum as the Court is largely governed by Section 4(1) with
respect to the period of appointment. The Section 4(1) period, of course and as
already mentioned above, has an impact uniquely its own that is different from
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De Castro vs. Judicial and Bar Council (JBC)
that created by the period provided for the lower court under Section 9.
Same; Same; Same; Same; Stare Decisis; The stability of judgments is indeed
a glue that the Judiciary and the litigating public cannot do without if we are to
have a working and stable justice system.—I find it interesting that Peralta largely
justifies his position that the JBC should now be prohibited from proceeding with
the nomination process based on Valenzuela as the prevailing rule that should be
followed under the principle of stare decisis. Tolentino apparently misappreciates
the reach and real holding of Valenzuela, as explained and clarified above. A ruling
involving the appointment of lower court judges under Section 9, Article VIII
cannot simply be bodily lifted and applied in toto to the appointment of Members
of the Supreme Court under Section 4(1) of the same Article. Because of his
misappreciation, Tolentino is likewise mistaken in his appeal to the principle
of stare decisis. The stability of judgments is indeed a glue that the Judiciary and
the litigating public cannot do without if we are to have a working and stable
justice system. Because of this role, the principle is one that binds all courts,
including this Court, and the litigating public. The principle, however, is not open-
ended and contains its own self-limitations; it applies only to actions in all
future similar cases and to none other. Where ample room for distinction exists,
as in this case, then stare decisis does not apply.
Same; Same; Same; Same; Same; Another aspect of stare decisis that must be
appreciated is that Supreme Court rulings are not written in stone so that they will
remain unerased and applicable for all times.—Another aspect of stare decisis that
must be appreciated is that Supreme Court rulings are not written in stone so that
they will remain unerased and applicable for all times. The Supreme Court’s
review of rulings and their binding effects is a continuing one so that a ruling in
one era may be declared by the Court at some future time to be no longer true and
should thus be abandoned and changed. The best and most unforgettable example
of this kind of change happened in the United States when the US Supreme Court
overturned the ruling in Plessy v. Fergusson that upheld the constitutionality of
racial segregation under the “separate but equal” doctrine. After half a century,
the US Court completely abandoned this ruling in the now famous Brown v. Board
of Education when it ruled that “separate but equal” doctrine is inherently
unequal in the context of public education. I mention this, if only as a reminder to
696
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De Castro vs. Judicial and Bar Council (JBC)
one and all, that the terms of the Valenzuela ruling, if truly applicable even
to appointments to this Court, is not written in stone and remains open for review
by this Court.
Same; Same; Same; Same; Same; Completeness has a heightened meaning
when the missing Member is the head of the Judiciary and the Court in the person
of the Chief Justice.—Valenzuela rests on the reasoning that the evil that Section
15 seeks to remedy—vote buying, midnight appointments and partisan reasons to
influence the results of the election—is so pervasive so that the Section 15 ban
should prevail over everything else. The Court, however, forgot in some statements
in this case that hand in hand with Section 15 is Section 4(1) where the framers
also recognized, in clear and absolute terms, that a vacancy in the Court should be
filled up because of the importance of having a Supreme Court with its full and
complete membership. Completeness has a heightened meaning when the missing
Member is the head of the Judiciary and the Court in the person of the Chief
Justice.
Same; Same; Same; Same; Same; What Valenzuela failed to consider, because
it was looking at the disputed provisions from the prism of two Regional Trial Court
(RTC) judges, is that the reasons for the application of Section 15, Article VII may
not at all exist in appointments to the Supreme Court.—What Valenzuela failed to
consider, because it was looking at the disputed provisions from the prism of two
RTC judges, is that the reasons for the application of Section 15, Article VII may
not at all exist in appointments to the Supreme Court. In the first place, Section
4(1) covers only the appointment of 15 Members, not in their totality, but singly
and individually as Members disappear from the Court and are replaced. Thus,
the evil that the Aytona case sought to remove—mass midnight appointments—
will not be present. Secondly, partisanship is hardly a reason that would apply to
the Supreme Court except when the Members of the Court individually act in
violation of their oaths or directly transgress our graft and corruption laws. Let it
be remembered that the Constitution itself has entrusted to the Court the final
and definitive recourse in election contest involving the President, the Vice-
President and Members of Congress. Because of this reposed trust on the Supreme
Court as a body, reasons of partisanship can hardly be a reason to systemically
place the whole Supreme Court under a ban on appointments during the election
period.697
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De Castro vs. Judicial and Bar Council (JBC)
Same; Same; Same; Same; Same; One voice can be a big difference if the
missing voice is that of the Chief Justice.—The importance of the presence of one
Member of the Court can and should never be underestimated, particularly on
issues that may gravely affect the nation. Many a case has been won or lost on the
basis of one vote. On an issue of the constitutionality of a law, treaty or statute, a
tie vote—which is possible in a 14 member court—means that the constitutionality
is upheld. This was our lesson in Isagani Cruz v. DENR Secretary, 347 SCRA 128
(2000). More than the vote, Court deliberation is the core of the decision-making
process and one voice less is not only a vote less but a contributed opinion, an
observation, or a cautionary word less for the Court. One voice can be a big
difference if the missing voice is that of the Chief Justice.
Same; Same; Same; Same; The reasons the former Chief Justice cited in
Valenzuela justify the application of the Section 15, Article VII as against the rule
on appointment of lower court judges under Section 9, Article VIII—Section 9 does
not impose a hard and fast rule on the period to be observed, apparently because
the urgency of the appointment may not be as great as in the appointment of
Members of the Supreme Court.—Where, as in Valenzuela, the Chief Justice of the
Supreme Court, no less, appeared to have given up the benefit of an immediate
appointment of Members of the Supreme Court, then extremely compelling
reasons must have driven the Court to its conclusion. I fully understood though
the former Chief Justice’s conclusion in this case when I realized that he was not
effectively ruling on Section 4(1) of Article VIII, and was in fact ruling on a case
involving lower court judges. For indeed, the reasons the former Chief Justice cited
in Valenzuela justify the application of the Section 15, Article VII as against the
rule on appointment of lower court judges under Section 9, Article VIII. As I have
shown above, Section 9 does not impose a hard and fast rule on the period to be
observed, apparently because the urgency of the appointment may not be as great
as in the appointment of Members of the Supreme Court. The period for
appointment can move at the discretion of the JBC, although the exercise of this
discretion also carries its own butt-in and implicit limits.
ABAD, J., Concurring Opinion:
Presidency; Appointments; Midnight Appointment Ban; Judicial Review;
Actual Case or Controversy; Under the circumstances,
698
698 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
the controversy is already ripe for adjudication for, assuming that the ban on
midnight appointment does not apply to the judiciary, then the Judicial and Bar
Council’s (JBC’s) suspension of its selection process would constitute a violation of
its duty under the Constitution to carry on with such process until it is able to
submit the desired list to the incumbent President.—After taking some steps in the
selection process, the JBC held the process in abeyance, unable to decide as yet
when and to whom it will submit its list of nominees for the position that Chief
Justice Puno will vacate on May 17, 2010. Under the circumstances, the
controversy is already ripe for adjudication for, assuming that the ban on midnight
appointment does not apply to the judiciary as the petitioners would have it, then
the JBC’s suspension of its selection process would constitute a violation of its duty
under the Constitution to carry on with such process until it is able to submit the
desired list to the incumbent President. If my subdivision neighbor begins
constructing a shed in his yard and tells me that he has ordered 20 pigs to raise
there, I will not wait till the pigs arrive and defecate before I bring an action to
abate a nuisance.
Same; Same; Same; Same; Judicial and Bar Council; Assuming that an
actual controversy has not yet developed as to warrant action on the petitions filed
in this case, the Court has the authority, as an incident of its power of supervision
over the Judicial and Bar Council (JBC), to see to it that the JBC faithfully executes
its duties as the Constitution requires of it.—As mandated by the Constitution, the
incumbent President should be able to fill up the vacancy within 90 days of its
occurrence. This presupposes that the incumbent President should have the list on
or before May 17, the day the vacancy occurs, so she can comply with her duty
under the Constitution to make the appointment within the 90-day period provided
by it. Of course, the circumstances is such that the period for appointing the Chief
Justice’s replacement will span the tenure of the incumbent President (for 44 days)
and her successor (for 46 days), but it is the incumbent’s call whether to exercise
the power or pass it on. Again, assuming as correct petitioners’ view that the ban
on midnight appointments does not apply to the judiciary, the JBC’s suspension of
its selection process places it in default, given its above duty in regard to the
submission of its list of nominees to the President within a time constraint. Under
the same assumption, moreover, the petitioner citizens and members of the bar
would have a demandable right or interest in having the JBC proceed with its
699
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De Castro vs. Judicial and Bar Council (JBC)
selection process and submit its list of nominees in time for the incumbent
President or her successor to fill up the vacancy within the period required by the
Constitution. Alternatively, assuming that an actual controversy has not yet
developed as to warrant action on the petitions filed in this case, the Court has the
authority, as an incident of its power of supervision over the JBC, to see to it that
the JBC faithfully executes its duties as the Constitution requires of it.
Same; Same; Same; Same; Same; While the President can freely choose to
appoint any person who meets the basic qualifications for a position in the Executive
Department, he does not have such freedom of choice when it comes to appointments
in the judiciary—in the latter case, the Constitution provides in Section 9 of Article
VIII that the President can choose his appointee only from a Judicial and Bar
Council (JBC) short list of its nominees.—Citing “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,” 298 SCRA 408 (1998), the oppositors claim that the ban on midnight
appointments applies to the judiciary. After examining the reasons for the two
apparently conflicting provisions, the Court said that the need to fill up vacancies
in the judiciary within the period the Constitution provides must yield to the ban
on Presidential midnight appointments. The Court explained this
ruling: Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President’s power of
appointment, it is this Court’s view that, as a general proposition, in case
of conflict, the former should yield to the latter. Surely, 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. But prohibited appointments are long-lasting and
permanent in their effects. They may, as earlier pointed out, in fact
influence the results of elections and, for that reason, their making is
considered an election offense. But the above assumes that the outgoing
incumbent President can make appointments in the judiciary during
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De Castro vs. Judicial and Bar Council (JBC)
the period of the ban “to buy votes” and commit “similar evils” like denying
the incoming President the opportunity to consider other appointees in the light of
his new policies, a point former President Diosdado Macapagal made in Aytona v.
Castillo, 4 SCRA (1962). The fact, however, is that while the President can freely
choose to appoint any person who meets the basic qualifications for a position in
the Executive Department, he does not have such freedom of choice when it comes
to appointments in the judiciary. In the latter case, the Constitution provides in
Section 9 of Article VIII that the President can choose his appointee only from a
JBC short list of its nominees.
Same; Same; Same; Same; Same; The idea that the outgoing incumbent
President can take advantage of her appointment of a Chief Justice to buy votes in
the coming elections is utterly ridiculous—she has no control over the Judicial and
Bar Council’s (JBC’s) actions.—In reality, a President’s choice of Chief Justice is
in fact first a choice of the JBC before it is that of the President. Easily there should
at least be 20,000 lawyers who are 40 years of age and have 15 years of law practice
of some kind who could qualify for Chief Justice. Yet, the President can choose only
from a list of three, four, or five lawyers that the JBC draws up for him.
Consequently, the idea that the outgoing incumbent President can take advantage
of her appointment of a Chief Justice to buy votes in the coming elections is utterly
ridiculous. She has no control over the JBC’s actions.
Same; Same; Same; Same; Same; Separation of Powers; The Supreme Court
that the Chief Justice heads is not a support agency under the President; The
proposition that a Chief Justice will always be beholden to the President who
appoints him is a myth.—The idea that the incoming President should have the
opportunity to choose a Chief Justice who will support his policies does not also
make sense. The Supreme Court that the Chief Justice heads is not a support
agency under the President. One of the functions of the Supreme Court is to
provide a Constitutional check on abuses of the Executive Department. The
proposition that a Chief Justice will always be beholden to the President who
appoints him is a myth. Former President Estrada appointed Chief Justice Hilario
G. Davide, Jr. who presided over his impeachment and administered the oath to
the incumbent President at the heels of EDSA II while President Estrada still sat
in Malacañang. Chief Justices Artemio V. Pangani-
701
VOL. 615, March 17, 2010 701
De Castro vs. Judicial and Bar Council (JBC)
ban and Reynato S. Puno voted against positions taken by the
administration of the incumbent President who appointed them both to their
position. These Chief Justices like those before them were first choices of the JBC
before they were those of the Presidents concerned.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari, Prohibition and
Mandamus; Query on the Applicability of Section 15, Article VII to
Appointments to the Judiciary; and PETITION to Enjoin the JBC from
Submitting a List of Nominees for the Position of Chief Justice to the
President.
The facts are stated in the opinion of the Court.
Saklolo A. Leaño, Rita Linda V. Jimeno and Rico A. Limpengcofor petitioner
in G.R. No. 191420.
Estelito P. Mendoza for petitioner in A.M. No. 10-2-5-SC.
Amador Z. Tolentino, Jr. and Roland B. Inting for petitioner in G.R. No.
191342.
Arturo M. De Castro for and on his own behalf in G.R. No. 191002.
Jaime N. Soriano for himself in G.R. No. 191032.
Manuel M. Lazaro, et al. for petitioner in G.R. No. 191057.
Benjamin P. Lozada III, et al. for movant-intervenor Atty. Marlon B. Urbano.
Pitero M. Reig for oppositor-in-intervention Board of the Integrated Bar of the
Philippines-Pasay, Parañaque, Las Piñas and Muntinlupa Chapters.
Edre U. Olalia, et al. for oppositor-intervenor.
Al A. Parreño for movant oppositors-in-intervention.
Ibarra M. Gutierrez for oppositor-intervenors Walden F. Bello and Loreta Ann
P. Rosales.
702
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De Castro vs. Judicial and Bar Council (JBC)
BERSAMIN, J.:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010
occurs just days after the coming presidential elections on May 10, 2010. Even
before the event actually happens, it is giving rise to many legal dilemmas. May
the incumbent President appoint his successor, considering that Section 15, Article
VII (Executive Department) of the Constitution prohibits the President or Acting
President from making appointments within two months immediately before the
next presidential elections and up to the end of his term, except temporary
appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety? What is the relevance of Section
4 (1), Article VIII (Judicial Department) of the Constitution, which provides that
any vacancy in the Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of his successor? May the
Judicial and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno, and submit the list
of nominees to the incumbent President even during the period of the prohibition
under Section 15, Article VII? Does mandamus lie to compel the submission of the
shortlist of nominees by the JBC?
Precís of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced
G.R. No. 1910021 and G.R. No. 1911492 as special civil actions
for certiorari and mandamus, praying that the JBC be compelled to submit to the
incumbent President the list of at least three nominees for the position of the next
Chief Justice.
_______________
1 Filed on February 9, 2010.
2 Begun on February 23, 2010.
703
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De Castro vs. Judicial and Bar Council (JBC)
In G.R. No. 191032,3 Jaime N. Soriano, via his petition for prohibition,
proposes to prevent the JBC from conducting its search, selection and nomination
proceedings for the position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus,4 the Philippine
Constitution Association (PHILCONSA) wants the JBC to submit its list of
nominees for the position of Chief Justice to be vacated by Chief Justice Puno upon
his retirement on May 17, 2010, because the incumbent President is not covered
by the prohibition that applies only to appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. Mendoza, a
former Solicitor General, seeks a ruling from the Court for the guidance of the JBC
on whether Section 15, Article VII applies to appointments to the Judiciary.
In G.R. No. 191342,6 which the Court consolidated on March 9, 2010 with the
petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting,
Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern
Visayas, respectively, want to enjoin and restrain the JBC from submitting a list
of nominees for the position of Chief Justice to the President for appointment
during the period provided for in Section 15, Article VII.
All the petitions now before the Court pose as the principal legal question
whether the incumbent President can appoint the successor of Chief Justice Puno
upon his retirement. That question is undoubtedly impressed with transcendental
importance to the Nation, because the appointment of the Chief Justice is any
President’s most important appointment.
_______________
3 Initiated on February 10, 2010.
4 Commenced on February 11, 2010.
5 Dated February 15, 2010.
6 Filed on March 8, 2010.
704
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De Castro vs. Judicial and Bar Council (JBC)
A precedent frequently cited is 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 (Valenzuela),7 by which the Court held that Section 15, Article VII
prohibited the exercise by the President of the power to appoint to judicial positions
during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting opinions on the
issue expressed by legal luminaries—one side holds that the incumbent President
is prohibited from making appointments within two months immediately before
the coming presidential elections and until the end of her term of office as
President on June 30, 2010, while the other insists that the prohibition applies
only to appointments to executive positions that may influence the election and,
anyway, paramount national interest justifies the appointment of a Chief Justice
during the election ban—has impelled the JBC to defer the decision to whom to
send its list of at least three nominees, whether to the incumbent President or to
her successor.8 He opines that the JBC is thereby arrogating unto itself “the
judicial function that is not conferred upon it by the Constitution,” which has
limited it to the task of recommending appointees to the Judiciary, but has not
empowered it to “finally resolve constitutional questions, which is the power vested
only in the Supreme Court under the Constitution.” As such, he contends that the
JBC acted with grave abuse of discretion in deferring the submission of the list of
nominees to the President; and that a “final and definitive resolution of the
constitutional questions raised above would diffuse (sic) the tension in the legal
community that would go a long way to keep and maintain stability in the judiciary
and the political system.”9
_______________
7 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
8 Petition in G.R. No. 191002, pp. 3-4.
9 Id., p. 5.
705
VOL. 615, March 17, 2010 705
De Castro vs. Judicial and Bar Council (JBC)
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave
abuse of discretion amounting to lack or excess of its jurisdiction when it resolved
unanimously on January 18, 2010 to open the search, nomination, and selection
process for the position of Chief Justice to succeed Chief Justice Puno, because the
appointing authority for the position of Chief Justice is the Supreme Court itself,
the President’s authority being limited to the appointment of the Members of the
Supreme Court. Hence, the JBC should not intervene in the process, unless a
nominee is not yet a Member of the Supreme Court.10
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that
“unorthodox and exceptional circumstances spawned by the discordant
interpretations, due perhaps to a perfunctory understanding, of Sec. 15, Art. VII
in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the Constitution” have bred “a
frenzied inflammatory legal debate on the constitutional provisions mentioned
that has divided the bench and the bar and the general public as well, because of
its dimensional impact to the nation and the people,” thereby fashioning
“transcendental questions or issues affecting the JBC’s proper exercise of its
“principal function of recommending appointees to the Judiciary” by submitting
only to the President (not to the next President) “a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy” from which the
members of the Supreme Court and judges of the lower courts may be
appointed.”11 PHILCONSA further believes and submits that now is the time to
revisit and review Valenzuela, the “strange and exotic Decision of the Court en
banc.”12
Peralta states in his petition in G.R. No. 191149 that mandamuscan compel
the JBC “to immediately transmit to the
_______________
 10 Petition in G.R. No. 191032, pp. 4-8.
11 Petition in G.R. No. 191057, pp. 1-2.
12 Id., at p. 11.
706
706 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
President, within a reasonable time, its nomination list for the position of chief
justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution” in the event that the
Court resolves that the President can appoint a Chief Justice even during the
election ban under Section 15, Article VII of the Constitution.13
The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the “JBC has initiated the process of receiving applications for
the position of Chief Justice and has in fact begun the evaluation process for the
applications to the position,” and “is perilously near completing the nomination
process and coming up with a list of nominees for submission to the President,
entering into the period of the ban on midnight appointments on March 10, 2010,”
which “only highlights the pressing and compelling need for a writ of prohibition
to enjoin such alleged ministerial function of submitting the list, especially if it will
be cone within the period of the ban on midnight appointments.”14
Antecedents
These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or
seven days after the presidential election. Under Section 4(1), in relation to Section
9, Article VIII, that“vacancy shall be filled within ninety days from the occurrence
thereof” from a “list of at least three nominees prepared by the Judicial and Bar
Council for every vacancy.”
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member
of the JBC, addressed a letter to the JBC, requesting that the process for
nominations to the office of the Chief Justice be commenced immediately.
_______________
13 Petition in G.R. No. 191149.
14 Petition in G.R. No. 191342.
707
VOL. 615, March 17, 2010 707
De Castro vs. Judicial and Bar Council (JBC)
In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,15 which reads:
“The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to
start the process of filling up the position of Chief Justice to be vacated on May 17,
2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S.
Puno.
It will publish the opening of the position for applications or recommendations;
deliberate on the list of candidates; publish the names of candidates; accept
comments on or opposition to the applications; conduct public interviews of
candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in
the light of the Constitution, existing laws and jurisprudence, the JBC welcomes
and will consider all views on the matter.
18 January 2010.
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January
20, 2010,16 viz.:
“The Judicial and Bar Council (JBC) announces the opening for application or
recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT,
which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later
than 4 February 2010 (Thursday) to the JBC Secretariat xxx:”
_______________
15 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf
16 http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%
2710.pdf
708
708 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
The announcement was published on January 20, 2010 in the Philippine Daily
Inquirer and The Philippine Star.17
Conformably with its existing practice, the JBC “automatically considered” for
the position of Chief Justice the five most senior of the Associate Justices of the
Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C.
Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero
J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the
last two declined their nomination through letters dated January 18, 2010 and
January 25, 2010, respectively.18
Others either applied or were nominated. Victor Fernandez, the retired Deputy
Ombudsman for Luzon, applied, but later formally withdrew his name from
consideration through his letter dated February 8, 2010. Candidates who accepted
their nominations without conditions were Associate Justice Renato C. Corona;
Associate Justice Teresita J. Leonardo-De Castro; Associate Justice Arturo D.
Brion; and Associate Justice Edilberto G. Sandoval (Sandiganbayan). Candidates
who accepted their nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.19 Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the
Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller,
Jr. (via telephone conversation with the Executive Officer of the JBC on February
8, 2010).20
The JBC excluded from consideration former RTC Judge Florentino Floro (for
failure to meet the standards set by the JBC rules); and Special Prosecutor Dennis
Villa-Ignacio of the
_______________
17 Comment of the JBC, p. 3.
18 Id.
19 Id., at pp. 4-5.
20 Id., at p. 5.
709
VOL. 615, March 17, 2010 709
De Castro vs. Judicial and Bar Council (JBC)
Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).21
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step
of announcing the names of the following candidates to invite the public to file
their sworn complaint, written report, or opposition, if any, not later than
February 22, 2010, to wit: Associate Justice Carpio, Associate Justice Corona,
Associate Justice Carpio Morales, Associate Justice Leonardo-De Castro, Associate
Justice Brion, and Associate Justice Sandoval. The announcement came out in
the Philippine Daily Inquirer and The Philippine Star issues of February 13,
2010.22
Issues
Although it has already begun the process for the filling of the position of Chief
Justice Puno in accordance with its rules, the JBC is not yet decided on when to
submit to the President its list of nominees for the position due to the controversy
now before us being yet unresolved. In the meanwhile, time is marching in quick
step towards May 17, 2010 when the vacancy occurs upon the retirement of Chief
Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate
opinions on whether the incumbent President can appoint the next Chief Justice
or not. Petitioner Mendoza notes that in Valenzuela, which involved the
appointments of two judges of the Regional Trial Court, the Court addressed this
issue now before us as an administrative matter “to avoid any possible polemics
concerning the matter,” but he opines that the polemics leading
to Valenzuela “would be miniscule [sic] compared to the “polemics” that have now
erupted in regard to the current controversy,” and that unless “put to a halt, and
this may only be
_______________
21 Id.
22 Id., at p. 6.
710
710 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
achieved by a ruling from the Court, the integrity of the process and the credibility
of whoever is appointed to the position of Chief Justice, may irreparably be
impaired.”23
Accordingly, we reframe the issues as submitted by each petitioner in the order
of the chronological filing of their petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the constitutional
question of whether the incumbent President can appoint a Chief Justice during
the election ban period?
b. Does the incumbent President have the power and authority to appoint
during the election ban the successor of Chief Justice Puno when he vacates the
position of Chief Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Court en
banc?
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section 15,
Article VII of the Constitution applicable only to positions in the Executive
Department?
b. Assuming that the prohibition under Section 15, Article VII of the
Constitution also applies to members of the Judiciary, may such
appointments be excepted because they are impressed with public interest
or are demanded by the exigencies of public service, thereby justifying these
appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to include and
submit the names of nominees who mani-
_______________
23 Petition in A.M. No. 10-2-5-SC, pp. 5-6.
711
VOL. 615, March 17, 2010 711
De Castro vs. Judicial and Bar Council (JBC)
fested interest to be nominated for the position of Chief Justice on the
understanding that his/her nomination will be submitted to the next President in
view of the prohibition against presidential appointments from March 11, 2010
until June 30, 2010?
A.M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to
positions in the Judiciary under Section 9, Article VIII of the Constitution?
 b.May President Gloria Macapagal-Arroyo make appointments to the
Judiciary after March 10, 2010, including that for the position of Chief
Justice after Chief Justice Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short
list to President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the
incumbent President without committing a grave violation of the
Constitution and jurisprudence prohibiting the incumbent President from
making midnight appointments two months immediately preceding the
next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the candidates
for the position of Chief Justice, constitutionally invalid in view of the JBC’s
illegal composition allowing each member from the Senate and the House
of Representatives to have one vote each?
On February 16, 2010, the Court directed the JBC and the Office of the
Solicitor General (OSG) to comment on the consolidated petitions, except that filed
in G.R. No. 191342.712
712 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
On February 26, 2010, the JBC submitted its comment, reporting therein that
the next stage of the process for the selection of the nominees for the position of
Chief Justice would be the public interview of the candidates and the preparation
of the short list of candidates, “including the interview of the constitutional
experts, as may be needed.”24 It stated:25
Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4 (1),
Article VIII of the Constitution, which provides that vacancy in the
Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution concerning the ban on
Presidential appointments “two (2) months immediately before the next
presidential elections and up to the end of his term” and Section 261 (g),
Article XXII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these consolidated
Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating
that the incumbent President can appoint the successor of Chief Justice Puno upon
his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC
from performing its principal function under the Constitution to recommend
appointees in the Judiciary; (b) the JBC’s function to recommend is a “continuing
process,” which does not begin with each vacancy or end with each nomination,
because the goal is “to submit the list of nominees to Malacañang on the very day
the vacancy arises”;26 the JBC was thus acting within its jurisdiction when
_______________
24 Comment of the JBC, p. 6.
25 Id., at p. 7; bold emphasis is in the original text.
26 Comment of the OSG, pp. 13-14.
713
VOL. 615, March 17, 2010 713
De Castro vs. Judicial and Bar Council (JBC)
it commenced and set in motion the process of selecting the nominees to be
submitted to the President for the position of Chief Justice to be vacated by Chief
Justice Puno;27 (c) petitioner Soriano’s theory that it is the Supreme Court, not the
President, who has the power to appoint the Chief Justice, is incorrect, and
proceeds from his misinterpretation of the phrase “members of the Supreme Court”
found in Section 9, Article VIII of the Constitution as referring only to the
Associate Justices, to the exclusion of the Chief Justice; 28 (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees to the
President, considering that its duty to prepare the list of at least three nominees
is unqualified, and the submission of the list is a ministerial act that the JBC is
mandated to perform under the Constitution; as such, the JBC, the nature of
whose principal function is executive, is not vested with the power to resolve who
has the authority to appoint the next Chief Justice and, therefore, has no discretion
to withhold the list from the President; 29 and (e) a writ of mandamus cannot issue
to compel the JBC to include or exclude particular candidates as nominees,
considering that there is no imperative duty on its part to include in or exclude
from the list particular individuals, but, on the contrary, the JBC’s determination
of who it nominates to the President is an exercise of a discretionary duty. 30
The OSG contends that the incumbent President may appoint the next Chief
Justice, because the prohibition under Section 15, Article VII of the Constitution
does not apply to appointments in the Supreme Court. It argues that any vacancy
in the Supreme Court must be filled within 90 days from its occurrence, pursuant
to Section 4(1), Article VIII of the Constitution;31 that in their deliberations on the
manda-
_______________
27 Id., at p. 14.
28 Id., at p. 15.
29 Id., at pp. 20-24.
30 Id., at pp. 25-27.
31 Id., at pp. 29-30.
714
714 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
tory period for the appointment of Supreme Court Justices, the framers neither
mentioned nor referred to the ban against midnight appointments, or its effects on
such period, or vice versa;32 that had the framers intended the prohibition to apply
to Supreme Court appointments, they could have easily expressly stated so in the
Constitution, which explains why the prohibition found in Article VII (Executive
Department) was not written in Article VIII (Judicial Department); and that the
framers also incorporated in Article VIII ample restrictions or limitations on the
President’s power to appoint members of the Supreme Court to ensure its
independence from “political vicissitudes” and its “insulation from political
pressures,”33 such as stringent qualifications for the positions, the establishment
of the JBC, the specified period within which the President shall appoint a
Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC
Judges, the situation now refers to the appointment of the next Chief Justice to
which the prohibition does not apply; that, at any rate, Valenzuela even recognized
that there might be “the imperative need for an appointment during the period of
the ban,” like when the membership of the Supreme Court should be “so reduced
that it will have no quorum, or should the voting on a particular important
question requiring expeditious resolution be divided”; 34 and that Valenzuela also
recognized that the filling of vacancies in the Judiciary is undoubtedly in the public
interest, most especially if there is any compelling reason to justify the making of
the appointments during the period of the prohibition.35
Lastly, the OSG urges that there are now undeniably compelling reasons for
the incumbent President to appoint the
_______________
32 Id.
33 Id., at pp. 32-33.
34 Id., at pp. 34-35.
35 Id.
715
VOL. 615, March 17, 2010 715
De Castro vs. Judicial and Bar Council (JBC)
next Chief Justice, to wit: (a) a deluge of cases involving sensitive political issues
is “quite expected”;36 (b) the Court acts as the Presidential Electoral Tribunal
(PET), which, sitting en banc, is the sole judge of all contests relating to the
election, returns, and qualifications of the President and Vice President and, as
such, has “the power to correct manifest errors on the statement of votes (SOV)
and certificates of canvass (COC)”;37 (c) if history has shown that during ordinary
times the Chief Justice was appointed immediately upon the occurrence of the
vacancy, from the time of the effectivity of the Constitution, there is now even more
reason to appoint the next Chief Justice immediately upon the retirement of Chief
Justice Puno;38 and (d) should the next Chief Justice come from among the
incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it
also becomes incumbent upon the JBC to start the selection process for the filling
up of the vacancy in accordance with the constitutional mandate.39
_______________
36 Id., at pp. 35-36. The OSG posits:
National interest compels the President to make such appointment for
it is particularly during this crucial period when national leaders are
seeking fresh mandates from the people that the Supreme Court, more
than at any other time, represents stability. Hence, a full court is ideal to
ensure not only due deliberation on and careful consideration of issues
but also expeditious disposition of cases.
Indeed, such function becomes especially significant in view of the
fact that this is the first time that the whole country will experience
automated elections.
37 Id., at pp. 36-37. The OSG stresses:
The possible fallouts or serious aftermath of allowing a vacuum in the
position of the Chief Justice may be greater and riskier than the
consequences or repercussions of inaction. Needless to state, the
appointment of the Chief Justice of this Honorable Court (sic) is the most
important appointment vested by the 1987 Constitution to (sic) the
President.
38 Id., at p. 37.
39 Id., at p. 38.
716
716 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
On March 9, 2010, the Court admitted the following comments/oppositions-in-
intervention, to wit:
(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter
Irving Corvera (Corvera);40
(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian
Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V.
Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of the
National Union of People’s Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B.
Ubano (Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar
of the Philippines-Davao del Sur Chapter and its Immediate Past
President, Atty. Israelito P. Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell
John L. Boiser (Boiser);
(h) The consolidated comment/opposition-in-intervention dated February 26,
2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary
General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE) Chairman
Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY)
Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng
Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard
Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino
Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National
Union of Students of the Philippines (NUSP) Chairman Einstein Recedes,
College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola;
 and Student Christian Movement of the Philippines (SCMP) Chairman Ma.
Cristina Angela Guevarra (BAYAN et al.);
_______________
40 Filed by Atty. Pitero M. Reig.
717
VOL. 615, March 17, 2010 717
De Castro vs. Judicial and Bar Council (JBC)
(i)The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and
Loretta Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March 4, 2010
of the Women Trial Lawyers Organization of the Philippines (WTLOP),
represented by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza Alojado
Demaisip; Atty. Teresita Gandionco-Oledan; Atty. Ma. Verena Kasilag-
Villanueva; Atty. Marilyn Sta. Romana; Atty. Leonila de Jesus; and Atty.
Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and
NUPL take the position that De Castro’s petition was bereft of any basis, because
under Section 15, Article VII, the outgoing President is constitutionally banned
from making any appointments from March 10, 2010 until June 30, 2010,
including the appointment of the successor of Chief Justice Puno.
Hence, mandamus does not lie to compel the JBC to submit the list of nominees to
the outgoing President if the constitutional prohibition is already in effect. Tan
adds that the prohibition against midnight appointments was applied by the Court
to the appointments to the Judiciary made by then President Ramos, with the
Court holding that the duty of the President to fill the vacancies within 90 days
from occurrence of the vacancies (for the Supreme Court) or from the submission
of the list (for all other courts) was not an excuse to violate the constitutional
prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et
al. oppose the insistence that Valenzuela recognizes the possibility that the
President may appoint the next Chief Justice if exigent circumstances warrant the
appointment, because that recognition is obiter dictum; and aver that the absence
of a Chief Justice or even an Associate Justice does not cause epic damage or
absolute disruption or paralysis in the operations of the Judiciary. They insist that
even without the successor of Chief Justice Puno being appointed by the incumbent
President, the Court is allowed to
718
718 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
sit and adjudge en banc or in divisions of three, five or seven members at its
discretion; that a full membership of the Court is not necessary; that petitioner De
Castro’s fears are unfounded and baseless, being based on a mere possibility, the
occurrence of which is entirely unsure; that it is not in the national interest to have
a Chief Justice whose appointment is unconstitutional and, therefore, void; and
that such a situation will create a crisis in the judicial system and will worsen an
already vulnerable political situation.
Intervenors Tan, Ubano, WTLOP, Bello et al., IBP Davao del Sur Corvera, and
Boiser regard De Castro’s argument that a permanent Chief Justice is imperative
for the stability of the judicial system and the political situation in the country
when the election-related questions reach the Court as false, because there is an
existing law on filling the void brought about by a vacancy in the office of Chief
Justice; that the law is Section 12 of the Judiciary Act of 1948, which has not been
repealed by Batas Pambansa Blg. 129 or any other law; that a temporary or an
acting Chief Justice is not anathema to judicial independence; that the designation
of an actingChief Justice is not only provided for by law, but is also dictated by
practical necessity; that the practice was intended to be enshrined in the 1987
Constitution, but the Commissioners decided not to write it in the Constitution on
account of the settled practice; that the practice was followed under the 1987
Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B.
Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief
Justice prior to his official appointment as Chief Justice; that said filling up of a
vacancy in the office of the Chief Justice was acknowledged and even used by
analogy in the case of the vacancy of the Chairman of the Commission on Elections,
per Brillantes v. Yorac, 192 SCRA 358; and that the history of the Supreme Court
has shown that this rule of succession has been repeatedly observed and has
become a part of its tradition.719
VOL. 615, March 17, 2010 719
De Castro vs. Judicial and Bar Council (JBC)
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that
the Omnibus Election Code penalizes as an election offense the act of any
government official who appoints, promotes, or gives any increase in salary or
remuneration or privilege to any government official or employee during the period
of 45 days before a regular election; that the provision covers all appointing heads,
officials, and officers of a government office, agency or instrumentality, including
the President; that for the incumbent President to appoint the next Chief Justice
upon the retirement of Chief Justice Puno, or during the period of the ban under
the Omnibus Election Code, constitutes an election offense; that even an
appointment of the next Chief Justice prior to the election ban is fundamentally
invalid and without effect because there can be no appointment until a vacancy
occurs; and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castro’s prayer to compel the submission of
nominees by the JBC to the incumbent President is off-tangent because the
position of Chief Justice is still not vacant; that to speak of a list, much more a
submission of such list, before a vacancy occurs is glaringly premature; that the
proposed advance appointment by the incumbent President of the next Chief
Justice will be unconstitutional; and that no list of nominees can be submitted by
the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no
distinction between the kinds of appointments made by the President; and that
the Court, in Valenzuela, ruled that the appointments by the President of the two
judges during the prohibition period were void.
 Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution
does not apply only to the appointments in the Executive Department, but also to
judicial appointments, contrary to the submission of PHILCONSA; that Section 15
does not distinguish; and that Valenzuela already
720
720 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
interpreted the prohibition as applicable to judicial appointments.
Intervenor WTLOP further posits that petitioner Soriano’s contention that the
power to appoint the Chief Justice is vested, not in the President, but in the
Supreme Court, is utterly baseless, because the Chief Justice is also a Member of
the Supreme Court as contemplated under Section 9, Article VIII; and that, at any
rate, the term “members” was interpreted in Vargas v. Rillaroza (G.R. No. L-1612,
February 26, 1948) to refer to the Chief Justice and the Associate Justices of the
Supreme Court; that PHILCONSA’s prayer that the Court pass a resolution
declaring that persons who manifest their interest as nominees, but with
conditions, shall not be considered nominees by the JBC is diametrically opposed
to the arguments in the body of its petition; that such glaring inconsistency
between the allegations in the body and the relief prayed for highlights the lack of
merit of PHILCONSA’s petition; that the role of the JBC cannot be separated from
the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next
duly elected President after the period of the constitutional ban against midnight
appointments has expired.
Oppositor IBP Davao del Sur opines that the JBC—because it is neither a
judicial nor a quasi-judicial body—has no duty under the Constitution to resolve
the question of whether the incumbent President can appoint a Chief Justice
during the period of prohibition; that even if the JBC has already come up with a
short list, it still has to bow to the strict limitations under Section 15, Article VII;
that should the JBC defer submission of the list, it is not arrogating unto itself a
judicial function, but simply respecting the clear mandate of the Constitution; and
that the application of the general rule in Section 15, Article VII to the Judiciary
does not violate the principle of separation of powers, because said provision is an
exception.721
VOL. 615, March 17, 2010 721
De Castro vs. Judicial and Bar Council (JBC)
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBC’s act of
nominating appointees to the Supreme Court is purely ministerial and does not
involve the exercise of judgment; that there can be no default on the part of the
JBC in submitting the list of nominees to the President, considering that the call
for applications only begins from the occurrence of the vacancy in the Supreme
Court; and that the commencement of the process of screening of applicants to fill
the vacancy in the office of the Chief Justice only begins from the retirement on
May 17, 2010, for, prior to this date, there is no definite legal basis for any party
to claim that the submission or non-submission of the list of nominees to the
President by the JBC is a matter of right under law.
The main question presented in all the filings herein—because it involves two
seemingly conflicting provisions of the Constitution—imperatively demands the
attention and resolution of this Court, the only authority that can resolve the
question definitively and finally. The imperative demand rests on the ever-present
need, first, to safeguard the independence, reputation, and integrity of the entire
Judiciary, particularly this Court, an institution that has been unnecessarily
dragged into the harsh polemics brought on by the controversy; second, to settle
once and for all the doubt about an outgoing President’s power to appoint to the
Judiciary within the long period starting two months before the presidential
elections until the end of the presidential term; and third, to set a definite
guideline for the JBC to follow in the discharge of its primary office of screening
and nominating qualified persons for appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus
standi.722
722 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Black defines locus standi as “a right of appearance in a court of justice on a
given question.”41 In public or constitutional litigations, the Court is often
burdened with the determination of the locus standi of the petitioners due to the
ever-present need to regulate the invocation of the intervention of the Court to
correct any official action or policy in order to avoid obstructing the efficient
functioning of public officials and offices involved in public service. It is required,
therefore, that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air
Terminals Co., Inc.:42
“The question on legal standing is whether such parties have “alleged
such a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.”43 Accordingly, 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 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.”44
_______________
 41 Black’s Law Dictionary, 941 (6th Ed. 1991).
42 G.R. No. 155001, May 5, 2003, 402 SCRA 612.
43 Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246
SCRA 540, 562-563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962).
44 Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, G.R. No.
138570, October 10, 2000; 342 SCRA 449, 478.
723
VOL. 615, March 17, 2010 723
De Castro vs. Judicial and Bar Council (JBC)
It is true that as early as in 1937, in People v. Vera,45 the Court adopted
the direct injury test for determining whether a petitioner in a public action
had locus standi. There, the Court held that 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.” Vera was
followed in Custodio v. President of the Senate,46 Manila Race Horse Trainers’
Association v. De la Fuente,47 Anti-Chinese League of the Philippines v.
Felix,48 and Pascual v. Secretary of Public Works.49
Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion.
For instance, in 1949, in Araneta v. Dinglasan,50 the Court liberalized the
approach when the cases had “transcendental importance.” Some notable
controversies whose petitioners did not pass the direct injury test were allowed to
be treated in the same way as in Araneta v. Dinglasan.51 In the 1975 decision
in Aquino v.
_______________
45 65 Phil. 56.
46 G.R. No. 117, November 7, 1945 (Unreported).
47 G.R. No. 2947, January 11, 1959 (Unreported).
48 77 Phil. 1012 (1947).
49 110 Phil. 331 (1960).
50 84 Phil. 368 (1949)
51 E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384
SCRA 152 (in which the Court ruled that the enforcement of the constitutional
right to information and the equitable diffusion of natural resources are matters
of transcendental importance which clothe the petitioner with locus
standi); Bagong Alyansang Makabayan v. Zamora, G.R. Nos. 138570, 138572,
138587, 138680, 138698, October 10, 2000, 342 SCRA 449 (in which the Court held
that “given the transcendental importance of the issues involved, the Court may
relax the standing requirements and allow the suit to prosper despite the lack of
direct injury to the parties seeking judicial review” of the Visiting Forces
Agreement); Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380
SCRA 739 (in which the Court, albeit conceding that the petitioners might
724
724 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Commission on Elections,52 this Court decided to resolve the issues raised by the
petition due to their “far-reaching implications,” even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v. Commission on
Elections has been adopted in several notable cases, permitting ordinary citizens,
legislators, and civic organizations to bring their suits involving the
constitutionality or validity of laws, regulations, and rulings.53
_______________
not file suit in their capacity as taxpayers without a showing that Balikatan 02-01
involved the exercise of Congress’ taxing or spending powers, reiterated Bagong
Alyansang Makabayan v. Zamora, declaring that cases of transcendental
importance must be settled promptly and definitely and the standing requirements
may be relaxed); and Osmeña v. Commission on Elections, G.R. No. 100318,
100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in which the Court held
that where serious constitutional questions were involved, the transcendental
importance to the public of the cases demanded that they be settled promptly and
definitely, brushing aside technicalities of procedure).
52 L-No. 40004, January 31, 1975, 62 SCRA 275.
53 E.g., Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in
which the Court held that it is sufficient that the petitioner is a citizen interested
in the execution of the law, because the question is one of public duty and the
enforcement of a public right, and the people are the real party-in-
interest); Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150
SCRA 530 (in which the Court declared that where an assertion of a public right
is involved, the requirement of personal interest is satisfied by the mere fact that
the petitioner is a citizen and is part of the general public which possesses the
right); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan, L. No. 81311, June 30, 1988, 163 SCRA 371 (in which the Court disregarded
objections to taxpayers’ lack of personality to sue in determining the validity of the
VAT Law); Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264 (in which
the Court pronounced that although no expenditure of public funds was involved
in the questioned contract, the petitioner was nonetheless clothed with the legal
personality under the disclosure provision of the Constitution to question it,
considering its important role in the economic development of the country and the
725
VOL. 615, March 17, 2010 725
De Castro vs. Judicial and Bar Council (JBC)
However, the assertion of a public right as a predicate for challenging a
supposedly illegal or unconstitutional executive or legislative action rests on the
theory that the petitioner represents the public in general. Although such
petitioner may not be as adversely affected by the action complained against as
are others, it is enough that he sufficiently demonstrates in his petition that he is
entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as
a citizen or taxpayer to gain locus standi. That is not surprising, for even if the
issue may appear to concern only the public in general, such capacities nonetheless
equip the petitioner with adequate interest to sue. In David v. Macapagal-
Arroyo,54 the Court aptly explains why:
“Case law in most jurisdictions now allows both “citizen” and “taxpayer”
standing in public actions. The distinction was first laid down in Beauchamp v.
Silk,55 where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:56 “In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
pursued and pun-
_______________
magnitude of the financial consideration involved, indicating that public interest
was definitely involved); and Association of Small Landowners in the Philippines,
Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343 (in
which the Court ruled that it had the discretion to waive the requirement of locus
standi in determining the validity of the implementation of the Comprehensive
Agrarian Reform Program, although the petitioners were not, strictly speaking,
covered by the definition of proper party).
54 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
55 275 Ky 91, 120 SW2d 765 (1938).
56 19 Wend. 56 (1837).
726
726 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
ished, and that a public grievance be remedied.” With respect to taxpayer’s
suits, Terr v. Jordan57 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.”58
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and
Peralta (G.R. No. 191149) all assert their right as citizens filing their petitions on
behalf of the public who are directly affected by the issue of the appointment of the
next Chief Justice. De Castro and Soriano further claim standing as taxpayers,
with Soriano averring that he is affected by the continuing proceedings in the JBC,
which involve “unnecessary, if not, illegal disbursement of public funds.” 59
PHILCONSA alleges itself to be a non-stock, non-profit organization existing
under the law for the purpose of defending, protecting, and preserving the
Constitution and promoting its growth and flowering. It also alleges that the Court
has recognized its legal standing to file cases on constitutional issues in several
cases.60
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines,
a member of the Philippine Bar engaged in the active practice of law, and a former
Solicitor General, former Minister of Justice, former Member of the Interim
Batasang Pambansa and the Regular Batasang Pambansa, and former member of
the Faculty of the College of Law of the University of the Philippines.
_______________
57 232 NC 48, 59 SE2d 359 (1950).
58 Bold emphasis is in the original text.
59 Petition in G.R. No. 191032, p. 2.
60 Petition in G.R. No. 191057, pp. 3-4; citing the cases of PHILCONSA v.
Gimenez, 15 SCRA 479 (1965); PHILCONSA v. Mathay, 18 SCRA 300
(1966); PHILCONSA v. Enriquez, 235 SCRA 506 (1994); and Lambino v.
COMELEC, 505 SCRA 160 (2006).
727
VOL. 615, March 17, 2010 727
De Castro vs. Judicial and Bar Council (JBC)
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of
the Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that
they have the legal standing to enjoin the submission of the list of nominees by the
JBC to the President, for “[a]n adjudication of the proper interpretation and
application of the constitutional ban on midnight appointments with regard to
respondent JBC’s function in submitting the list of nominees is well within the
concern of petitioners, who are duty bound to ensure that obedience and respect
for the Constitution is upheld, most especially by government offices, such as
respondent JBC, who are specifically tasked to perform crucial functions in the
whole scheme of our democratic institution.” They further allege that, reposed in
them as members of the Bar, is a clear legal interest in the process of selecting the
members of the Supreme Court, and in the selection of the Chief Justice,
considering that the person appointed becomes a member of the body that has
constitutional supervision and authority over them and other members of the legal
profession.61
The Court rules that the petitioners have each demonstrated adequate interest
in the outcome of the controversy as to vest them with the requisite locus
standi. The issues before us are of transcendental importance to the people as a
whole, and to the petitioners in particular. Indeed, the issues affect everyone
(including the petitioners), regardless of one’s personal interest in life, because
they concern that great doubt about the authority of the incumbent President to
appoint not only the successor of the retiring incumbent Chief Justice, but also
others who may serve in the Judiciary, which already suffers from a far too great
number of vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement
of legal standing in favor of any petitioner when the matter involved has
transcendental impor-
_______________
61 Petition in G.R. No. 191342, pp. 2-3.
728
728 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
tance, or otherwise requires a liberalization of the requirement.62
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel
the doubt now in order to remove any obstacle or obstruction to the resolution of
the essential issue squarely presented herein. We are not to shirk from discharging
our solemn duty by reason alone of an obstacle more technical than otherwise.
In Agan, Jr. v. Philippine International Air Terminals Co., Inc.,63 we pointed out:
“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 a
law or any other government act but by concerned citizens, taxpayers or voters
who actually sue in the public interest.” But even if, strictly speaking, the
petitioners “are not covered by the definition, it is still within the wide discretion
of the Court to waive the requirement and so
_______________
62 See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No.
141284, August 15, 2000, 338 SCRA 81 (where the petitioner questioned the
validity of the deployment and utilization of the Marines to assist the PNP in law
enforcement, asserting that IBP was the official organization of Filipino lawyers
tasked with the bounden duty to uphold the rule of law and the Constitution, but
the Court held that the IBP had not shown that it was so tasked: “In this case, a
reading of the petition shows that the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty and
weight as precedents. Moreover, because peace and order are under constant
threat and lawless violence occurs in increasing tempo, undoubtedly aggravated
by the Mindanao insurgency problem, the legal controversy raised in the petition
almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now,
rather than later”, and went on to resolve the issues because the petitioner
advanced constitutional issues that deserved the attention of the Court in view of
their seriousness, novelty, and weight as precedents).
63 Supra, note 42, p. 645.
729
VOL. 615, March 17, 2010 729
De Castro vs. Judicial and Bar Council (JBC)
remove the impediment to its addressing and resolving the serious constitutional
questions raised.”64
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is
appropriate or ripe for adjudication, considering that although the selection
process commenced by the JBC is going on, there is yet no final list of nominees;
hence, there is no imminent controversy as to whether such list must be submitted
to the incumbent President, or reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe
for judicial determination, pointing out that petitioner De Castro has not even
shown that the JBC has already completed its selection process and is now ready
to submit the list to the incumbent President; and that petitioner De Castro is
merely presenting a hypothetical scenario that is clearly not sufficient for the
Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castro’s petition rests
on an overbroad and vague allegation of political tension, which is insufficient
basis for the Court to exercise its power of judicial review.
Intervenor BAYAN et al. contend that the petitioners are seeking a mere
advisory opinion on what the JBC and the President should do, and are not
invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal rights and
no assertion of opposite legal claims in any of the petitions; that PHILCONSA does
not allege any action taken by the JBC, but simply avers that the conditional
manifestations of two Members of the Court, accented by the divided opinions and
interpretations of legal experts, or associa-
_______________
64 Id.
730
730 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
tions of lawyers and law students on the issues published in the daily
newspapers are “matters of paramount and transcendental importance to the
bench, bar and general public”; that PHILCONSA fails not only to cite any legal
duty or allege any failure to perform the duty, but also to indicate what specific
action should be done by the JBC; that Mendoza does not even attempt to portray
the matter as a controversy or conflict of rights, but, instead, prays that the Court
should “rule for the guidance of” the JBC; that the fact that the Court supervises
the JBC does not automatically imply that the Court can rule on the issues
presented in the Mendoza petition, because supervision involves oversight, which
means that the subordinate officer or body must first act, and if such action is not
in accordance with prescribed rules, then, and only then, may the person exercising
oversight order the action to be redone to conform to the prescribed rules; that the
Mendoza petition does not allege that the JBC has performed a specific act
susceptible to correction for being illegal or unconstitutional; and that the
Mendoza petition asks the Court to issue an advisory ruling, not to exercise its
power of supervision to correct a wrong act by the JBC, but to declare the state of
the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy that is ripe
for judicial determination. The reality is that the JBC already commenced the
proceedings for the selection of the nominees to be included in a short list to be
submitted to the President for consideration of which of them will succeed Chief
Justice Puno as the next Chief Justice. 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, because the next steps are the public interview of
the candidates, the preparation of the short list of candidates, and the “interview
of constitutional experts, as may be needed.”731
VOL. 615, March 17, 2010 731
De Castro vs. Judicial and Bar Council (JBC)
A part of the question to be reviewed by the Court is whether the JBC properly
initiated the process, there being an insistence from some of the oppositors-
intervenors that the JBC could only do so once the vacancy has occurred (that is,
after May 17, 2010). Another part is, of course, whether the JBC may resume its
process until the short list is prepared, in view of the provision of Section 4(1),
Article VIII, which unqualifiedly requires the President to appoint one from the
short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an
Associate Justice) within 90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted.
The challenges to the authority of the JBC to open the process of nomination and
to continue the process until the submission of the list of nominees; the insistence
of some of the petitioners to compel the JBC through mandamus to submit the
short list to the incumbent President; the counter-insistence of the intervenors to
prohibit the JBC from submitting the short list to the incumbent President on the
ground that said list should be submitted instead to the next President; the strong
position that the incumbent President is already prohibited under Section 15,
Article VII from making any appointments, including those to the Judiciary,
starting on May 10, 2010 until June 30, 2010; and the contrary position that the
incumbent President is not so prohibited are only some of the real issues for
determination. All such issues establish the ripeness of the controversy,
considering that for some the short list must be submitted before the vacancy
actually occurs by May 17, 2010. The outcome will not be an abstraction, or a
merely hypothetical exercise. The resolution of the controversy will surely settle—
with finality—the nagging questions that are preventing the JBC from moving on
with the process that it already began, or that are reasons persuading the JBC to
desist from the rest of the process.732
732 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
We need not await the occurrence of the vacancy by May 17, 2010 in order for
the principal issue to 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. 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 it
to intelligently adjudicate the issues.65 Herein, the facts are not in doubt, for only
legal issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply to
appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
“Section 15. 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.”
The other, Section 4 (1), Article VIII (Judicial Department), states:
“Section 4. (1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.”
_______________
65 See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail
Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).
733
VOL. 615, March 17, 2010 733
De Castro vs. Judicial and Bar Council (JBC)
In the consolidated petitions, the petitioners, with the exception of Soriano,
Tolentino and Inting, submit that the incumbent President can appoint the
successor of Chief Justice Puno upon his retirement on May 17, 2010, on the
ground that the prohibition against presidential appointments under Section 15,
Article VII does not extend to appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal
that the framers devoted time to meticulously drafting, styling, and arranging the
Constitution. Such meticulousness indicates that the organization and
arrangement of the provisions of the Constitution were not arbitrarily or
whimsically done by the framers, but purposely made to reflect their intention and
manifest their vision of what the Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the allocation
of the awesome powers of government among the three great departments, the
Legislative (Article VI), the Executive (Article VII), and the Judicial Departments
(Article VIII). The arrangement was a true recognition of the principle of
separation of powers that underlies the political structure, as Constitutional
Commissioner Adolfo S. Azcuna (later a worthy member of the Court) explained in
his sponsorship speech:
“We have in the political part of this Constitution opted for the separation of
powers in government because we believe that the only way to protect freedom and
liberty is to separate and divide the awesome powers of government. Hence, we
return to the separation of powers doctrine and the legislative, executive and
judicial departments.”66
_______________
66 Record of Proceedings and Debates of the Constitutional Commission, Vol.
V., p. 912, October 12, 1998.
734
734 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
As can be seen, Article VII is devoted to the Executive Department, and, among
others, it lists the powers vested by the Constitution in the President. The
presidential power of appointment is dealt with in Sections 14, 15 and 16 of the
Article.
Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and
Section 9 of this Article are the provisions specifically providing for the
appointment of Supreme Court Justices. In particular, Section 9 states that the
appointment of Supreme Court Justices can only be made by the President upon
the submission of a list of at least three nominees by the JBC; Section 4(1) of the
Article mandates the President to fill the vacancy within90 days from the
occurrence of the vacancy.
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. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition
against the President or Acting President making appointments within two
months before the next presidential elections and up to the end of the President’s
or Acting President’s term does not refer to the Members of the Supreme Court.
Although Valenzuela67 came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that
_______________
67 Supra, note 6, p. 426-427, stating:
Considering the respective reasons for the time frames for filling vacancies in
the courts and the restriction on the President’s
735
VOL. 615, March 17, 2010 735
De Castro vs. Judicial and Bar Council (JBC)
the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional
Commission. Thereby, the confirmation made to the JBC by then Senior Associate
Justice Florenz D. Regalado of this Court, a former member of the Constitutional
Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even expressly
mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of
Section 4 (1), Article VIII, viz.:
_______________
power of appointment, it is this Court’s view that, as a general proposition, in
case of conflict, the former should yield to the latter. Surely, 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. But prohibited appointments are long-lasting
and permanent in their effects. They may, as earlier pointed out, in fact influence
the results of elections and, for that reason, their making is considered an election
offense.
To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of
Article VIII should prevail over Section 15 of Article VII, because they may be
considered later expressions of the people when they adopted the Constitution, it
suffices to point out that the Constitution must be construed in its entirety as one,
single, instrument.
To be sure, instances may be conceived of the imperative need for an
appointment, during the period of the ban, not only in the executive but also in the
Supreme Court. This may be the case should the membership of the court be so
reduced that it will have no quorum or should the voting on a particularly
important question requiring expeditious resolution be evenly divided. Such a
case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and
9 of Article VIII.
736
736 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution
discloses that the original proposal was to have an eleven-member Supreme Court.
Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen.
He also wished to ensure that that number would not be reduced for any
appreciable length of time (even only temporarily), and to this end proposed that
any vacancy “must be filled within two months from the date that the vacancy
occurs.” His proposal to have a 15-member Court was not initially adopted.
Persisting however in his desire to make certain that the size of the Court would
not be decreased for any substantial period as a result of vacancies, Lerum
proposed the insertion in the provision (anent the Court’s membership) of the same
mandate that “IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED
WITHIN TWO MONTHS FROM OCCURRENCE THEREOF.” He later agreed to
suggestions to make the period three, instead of two, months. As thus amended,
the proposal was approved. As it turned out, however, the Commission ultimately
agreed on a fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a command to fill up
any vacancy therein within 90 days from its occurrence.
In this connection, it may be pointed out that that instruction that 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…”
The commission later approved a proposal of Commissioner Hilario G. Davide,
Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII,
the following paragraph: “WITH RESPECT TO LOWER COURTS, THE
PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS
FROM THE SUBMISSION OF THE LIST” (of nominees by the Judicial and Bar
Council to the President). Davide stated that his purpose was to provide a “uniform
rule” for lower courts. According to him, the 90-day period should be counted from
submission of the list of nominees to the President in view of the possibility that
the President might reject the list submitted to him and the JBC thus need more
time to submit a new one.737
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On the other hand, Section 15, Article VII—which in effect deprives the
President of his appointing power “two months immediately before the next
presidential elections up to the end of his term”—was approved without
discussion.”68
However, the reference to the records of the Constitutional Commission did not
advance or support the result in Valenzuela. Far to the contrary, the records
disclosed the express intent of the framers to enshrine in the Constitution, upon
the initiative of Commissioner Eulogio Lerum, “a command [to the President] to
fill up any vacancy therein within 90 days from its occurrence,” which
even Valenzuela conceded.69 The exchanges during deliberations of the
Constitutional Commission on October 8, 1986 further show that the filling of a
vacancy in the Supreme Court within the 90-day period was a true mandate for
the President, viz.:
MR. DE CASTRO. I understand that our justices now in the Supreme Court,
together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this subsection reads:
“Any vacancy shall be filled within ninety days from the
occurrence thereof.”
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive to fill the
vacancy?
MR. CONCEPCION. That is right. That is borne out of the fact that in
the past 30 years, seldom has the Court had a complete
complement.70
Moreover, the usage in Section 4(1), Article VIII of the word shall—an
imperative, operating to impose a duty that
_______________
68 Id., at pp. 422-423.
69 Id., at p. 423.
70 Record of Proceedings and Debates of the Constitutional Commission, Vol.
V., pp. 632-633.
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may be enforced71—should not be disregarded. Thereby, Sections 4(1) imposes on
the President the imperative duty to make an appointment of a Member of the
Supreme Court within 90 days from the occurrence of the vacancy. The failure by
the President to do so will be a clear disobedience to the Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill
the vacancy in the Supreme Court was undoubtedly a special provision to establish
a definite mandate for the President as the appointing power, and cannot be
defeated by mere judicial interpretation in Valenzuela to the effect that Section 15,
Article VII prevailed because it was “couched in stronger negative language.” Such
interpretation even turned out to be conjectural, in light of the records of the
Constitutional Commission’s deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted.
According to an authority on statutory construction:72
“xxx the court should seek to avoid any conflict in the provisions of the statute
by endeavoring to harmonize and reconcile every part so that each shall be
effective. It is not easy to draft a statute, or any other writing for that matter,
which may not in some manner contain conflicting provisions. But what appears
to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly,
each provision was inserted for a definite reason. Often by considering the
enactment in its entirety, what appears to be on its face a conflict may be cleared
up and the provisions reconciled.
Consequently, that construction which will leave every word operative will be
favored over one which leaves some word or provision meaningless because of
inconsistency. But a word should not be given effect, if to do so gives the statute a
meaning contrary to the
_______________
71 Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
72 Crawford, Earl. T., The Construction of Statutes, Thomas Law Book
Company, St. Louis, Missouri, 262-264 (1940).
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intent of the legislature. On the other hand, if full effect cannot be given to the
words of a statute, they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at a sacrifice of the
legislative intention. It may be that two provisions are irreconcilable; if so, the one
which expresses the intent of the law-makers should control. And the arbitrary
rule has been frequently announced that where there is an irreconcilable conflict
between the different provisions of a statute, the provision last in order of position
will prevail, since it is the latest expression of the legislative will. Obviously, the
rule is subject to deserved criticism. It is seldom applied, and probably then only
where an irreconcilable conflict exists between different sections of the same act,
and after all other means of ascertaining the meaning of the legislature have been
exhausted. Where the conflict is between two statutes, more may be said in favor
of the rule’s application, largely because of the principle of implied repeal.”
In this connection, PHILCONSA’s urging of a revisit and a review
of Valenzuela is timely and appropriate. Valenzuelaarbitrarily 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. It
further ignored that the two provisions had no irreconcilable conflict, regardless of
Section 15, Article VII being couched in the negative. As judges, we are not to
unduly interpret, and should not accept an interpretation that defeats the intent
of the framers.73
Consequently, prohibiting the incumbent President from appointing a Chief
Justice on the premise that Section 15, Article VII extends to appointments in the
Judiciary cannot be sustained. A misinterpretation like Valenzuela should not be
allowed to last after its false premises have been exposed.74
_______________
73 Garcia v. Social Security Commission Legal and Collection, G.R. No.
170735, December 17, 2007, 540 SCRA 456, 472; citing Escosura v. San Miguel
Brewery, Inc., 4 SCRA 285, (1962).
74 According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): “Although
adherence to precedent is not rigidly required in constitutional cases, any
departure from the doctrine of stare decisis de-
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It will not do to merely distinguish Valenzuela from these cases, for the result to
be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly
sent to the dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to
all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption of Section
15 as part of Article VII was to eliminate midnight appointments from being made
by an outgoing Chief Executive in the mold of the appointments dealt with in the
leading case of Aytona v. Castillo.75 In fact, in Valenzuela, the Court so observed,
stating that:
“xxx it appears 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 which are declared
election offenses in the Omnibus Election Code, viz.:
xxx
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
_______________
mands special justification.” The special justification for the reversal
of Valenzuela lies in its intrinsic unsoundness.
75 No. L-19313, January 19, 1962, 4 SCRA 1.
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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.”
As indicated, the Court recognized that there may well be appointments to
important positions which have to be made even after the proclamation of the new
President. Such 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,” can be
made by the outgoing President. Accordingly, several appointments made by
President Garcia, which were shown to have been well considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It
may not unreasonably be deemed to contemplate not only “midnight”
appointments—those made obviously for partisan reasons as shown by
their number and the time of their making—but also appointments
presumed made for the purpose of influencing the outcome of the
Presidential election.
On the other hand, the exception in the same Section 15 of Article VII—
allowing appointments to be made during the period of the ban therein provided—
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. Obviously, the
article greatly restricts the appointing power of the President during the period of
the ban.
Considering the respective reasons for the time frames for filling vacancies in
the courts and the restriction on the President’s power of appointment, it is this
Court’s view that, as a general proposition, in case of conflict, the former should
yield to the latter. Surely, the prevention of vote-buying and similar evils
outweighs the
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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. But
prohibited appointments are long-lasting and permanent in their effects. They
may, as earlier pointed out, in fact influence the results of elections and, for that
reason, their making is considered an election offense.”76
Given the background and rationale for the prohibition in Section 15, Article
VII, we have no doubt that the Constitutional Commission confined the prohibition
to appointments made in the Executive Department. The framers did not need to
extend the prohibition to appointments in the Judiciary, because their
establishment of the JBC and their subjecting the nomination and screening of
candidates for judicial positions to the unhurried and deliberate prior process of
the JBC ensured that there would no longer be midnight appointments to the
Judiciary. If midnight appointments in the mold of Aytona were made in haste and
with irregularities, or made by an outgoing Chief Executive in the last days of his
administration out of a desire to subvert the policies of the incoming President or
for partisanship,77 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. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the process of
ascertaining the intent or
_______________
76 Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
77 Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time material
to Aytona, there were judges of the Court of First Instance who were appointed to
districts that had no vacancies, because the incumbents had not qualified for other
districts to which they had been supposedly transferred or promoted; at any rate,
the appointments still required confirmation by the Commission on
Appointments).
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meaning of the enactment, because the reason for the enactment must necessarily
shed considerable light on “the law of the statute,” i.e., the intent; hence, 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.78
Also, 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. The experience from the time of
the establishment of the JBC shows that even candidates for judicial positions at
any level backed by people influential with the President could not always be
assured of being recommended for the consideration of the President, because they
first had to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the Judiciary by doing
away with the intervention of the Commission on Appointments. This insulating
process was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to
appointments in the Judiciary was confirmed by then Senior Associate Justice
Regalado to the JBC itself when it met on March 9, 1998 to discuss the question
raised by some sectors about the “constitutionality of xxx appointments” to the
Court of Appeals in light of the forthcoming presidential elections. He assured that
“on the basis of the (Constitutional) Commission’s records, the election ban had no
application to appointments to the Court of Appeals.”79 This confirmation
was accepted by the JBC, which then submitted to the President for consideration
the nominations for the eight vacancies in the Court of Appeals.80
_______________
78 Crawford, op. cit., supra, note 72, pp. 248-249.
79 Supra, note 6, p. 413.
80 Id.
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The fault of Valenzuela was that it accorded no weight and due consideration
to the confirmation of Justice Regalado. Valenzuelawas weak, because it relied on
interpretation to determine the intent of the framers rather than on the
deliberations of the Constitutional Commission. Much of the unfounded doubt
about the President’s power to appoint during the period of prohibition in Section
15, Article VII could have been dispelled since its promulgation on November 9,
1998, had Valenzuela properly acknowledged and relied on the confirmation of a
distinguished member of the Constitutional Commission like Justice Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and
Section 16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke
appointments made by an Acting President,81 and evidently refers only to
appointments in the Executive Department. It has no application to appointments
in the Judiciary, because temporary or acting appointments can only undermine
the independence of the Judiciary due to their being revocable at will.82 The letter
and spirit of the Constitution safeguard that independence. Also, there is no law
in the books that authorizes the revocation of appointments in the Judiciary. Prior
to their mandatory retirement or resignation, judges of the first and second level
courts and the Justices of the third level courts may only be removed for cause, but
the Members of the Supreme Court may be removed only by impeachment.
Section 16 covers only the presidential appointments that require confirmation
by the Commission on Appointments.
_______________
81 Section 14. Appointments extended by an Acting President shall remain
effective, unless revoked by the elected President within ninety days from his
assumption or reassumption of office.
82 Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas, 80
Phil. 297 (1948).
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Thereby, the Constitutional Commission restored the requirement of
confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the
restored requirement did not include appointments to the Judiciary.83
Section 14, Section 15, and Section 16 are obviously of the same character, in
that they affect the power of the President to appoint. The fact that Section 14 and
Section 16 refer only to appointments within the Executive Department renders
conclusive that Section 15 also applies only to the Executive Department. This
conclusion is consistent with the rule that every part of the statute must be
interpreted with reference to the context, i.e. that every part must be considered
together with the other parts, and kept subservient to the general intent of the
whole enactment.84 It is absurd to assume that the framers deliberately situated
Section 15 between Section 14 and Section 16, if they intended Section 15 to
cover all kinds of presidential appointments. If that was their intention in respect
of appointments to the Judiciary, the framers, if only to be clear, would have easily
and surely inserted a similar prohibition in Article VIII, most likely within Section
4 (1) thereof.
Fifth. 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 ensuring the independence of the Judicial Department from the Executive and
Legislative Departments. Such a holding will tie the Judiciary and the Supreme
Court to the fortunes or misfortunes of po-
_______________
83 Record of Proceedings and Debates of the Constitutional Commission, Vol.
V., p. 908, which indicates that in his sponsorship speech delivered on October 12,
1986 on the floor of the Constitutional Commission, Commissioner Teofisto
Guingona explained that “[a]ppointments to the judiciary shall not be subject to
confirmation by the Commission on Appointments.”
84 Rodriguez, Statutory Construction, 171 (1999).
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litical leaders vying for the Presidency in a presidential election. Consequently,
the wisdom of having the new President, instead of the current incumbent
President, appoint the next Chief Justice is itself suspect, and cannot ensure
judicial independence, because the appointee can also become beholden to the
appointing authority. In contrast, the appointment by the incumbent President
does not run the same risk of compromising judicial independence, precisely
because her term will end by June 30, 2010.
Sixth. The argument has been raised to the effect that there will be no need
for the incumbent President to appoint during the prohibition period the successor
of Chief Justice Puno within the context of Section 4 (1), Article VIII, because
anyway there will still be about 45 days of the 90 days mandated in Section 4(1),
Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy
occurring from Chief Justice Puno’s retirement by May 17, 2010. It ignores the
need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be
time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is
easily demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second
Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at
the latest. If the regular presidential elections are held on May 8, the period of the
prohibition is 115 days. If such elections are held on May 14, the period of the
prohibition is 109 days. Either period of the prohibition is longer than the full
mandatory 90-day period to fill the vacancy in the Supreme Court. The result is
that there are at least 19 occasions (i.e., the difference between the shortest
possible period of the ban of 109 days and the 90-day mandatory period for
appointments) in which the outgoing President would be in no position to comply
with the constitutional duty to fill up a vacancy in the Supreme Court. It is
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safe to assume that the framers of the Constitution could not have intended such
an absurdity. In fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1), Article VIII, the
framers neither discussed, nor mentioned, nor referred to the ban against
midnight appointments under Section 15, Article VII, or its effects on the 90-day
period, or vice versa. They did not need to, because they never intended Section 15,
Article VII to apply to a vacancy in the Supreme Court, or in any of the lower
courts.
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on
whether a JBC list is necessary at all for the President—any President—to appoint
a Chief Justice if the appointee is to come from the ranks of the sitting justices of
the Supreme Court.
Sec. 9, Article VIII says:
 “xxx. The Members of the Supreme Court xxx shall be appointed by the
President from a list of at least three nominees prepared by the Judicial and Bar
Council for any vacancy. Such appointments need no confirmation.
xxx”
The provision clearly refers to an appointee coming into the Supreme Court
from the outside, that is, a non-member of the Court aspiring to become one. It
speaks of candidates for the Supreme Court, not of those who are already members
or sitting justices of the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the
Court as Chief Justice?
The question is not squarely before us at the moment, but it should lend itself
to a deeper analysis if and when circumstances permit. It should be a good issue
for the proposed Constitutional Convention to consider in the light of Senate
President Juan Ponce Enrile’s statement that the President
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can appoint the Chief Justice from among the sitting justices of the Court even
without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint
the successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can
still address the situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
“Section 12. Vacancy in Office of Chief Justice.—In case of a vacancy in the
office of Chief Justice of the Supreme Court or of his inability to perform the duties
and powers of his office, they shall devolve upon the Associate Justice who is first
in precedence, until such disability is removed, or another Chief Justice is
appointed and duly qualified. This provision shall apply to every Associate Justice
who succeeds to the office of Chief Justice.”
The provision calls for an Acting Chief Justice in the event of a vacancy in the
office of the Chief Justice, or in the event that the Chief Justice is unable to perform
his duties and powers. In either of such circumstances, the duties and powers of
the office of the Chief Justice shall devolve upon the Associate Justice who is first
in precedence until a new Chief Justice is appointed or until the disability is
removed.
Notwithstanding that there is no pressing need to dwell on this peripheral
matter after the Court has hereby resolved the question of consequence, we do not
find it amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that 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
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JBC for every vacancy, which appointments require no confirmation by the
Commission on Appointments. 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. The express reference to a Chief Justice abhors the idea that the
framers contemplated an Acting Chief Justice to head the membership of the
Supreme Court. Otherwise, they would have simply written so in the Constitution.
Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall
the imperative need to appoint the next Chief Justice soonest is to defy the plain
intent of the Constitution.
For sure, the framers intended the position of Chief Justice to be permanent,
not one to be occupied in an acting or temporary capacity. In relation to the scheme
of things under the present Constitution, 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. It ought to be remembered, however, that it 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.
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.
Under the Constitution, the heads of the Legislative and Executive Departments
are popularly elected, and whoever are elected and proclaimed at once become the
leaders of their respective Departments. However, the lack of any appointed
occupant of the office of Chief Justice harms the independence of the Judiciary,
because the Chief Justice is the head of the entire Judiciary. The Chief Justice
performs functions absolutely significant to the life of the nation. With the entire
Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the
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appointment of the next Chief Justice, aside from its being mandatory for the
incumbent President to make within the 90-day period from May 17, 2010, there
is no justification to insist that the successor of Chief Justice Puno be appointed
by the next President.
Historically, under the present Constitution, there has been no wide gap
between the retirement and the resignation of an incumbent Chief Justice, on one
hand, and the appointment to and assumption of office of his successor, on the
other hand. As summarized in the comment of the OSG, the chronology of
succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief
Justice Pedro Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo
Fernan was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice
Andres Narvasa was appointed the following day, December 8, 1991;
 4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice
Hilario Davide, Jr. was sworn into office the following early morning of November
30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief Justice
Artemio Panganiban was appointed the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice
Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.85
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
_______________
85 Comment of the OSG, p. 37.
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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.86 It is proper when the act against
which it is directed is one addressed to the discretion of the tribunal or
officer. Mandamusis not available to direct the exercise of a judgment or discretion
in a particular way.87
For mandamus to lie, the following requisites 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.
Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at
least three nominees to the President for every vacancy in the Judiciary:
“Section 8. xxx
(5) The Council shall have the principal function of recommending
appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges of lower courts
shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy.Such
appointments need no confirmation.
For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.”
However, Section 4(1) and Section 9, Article VIII, mandate the President to fill
the vacancy in the Supreme Court within 90 days from the occurrence of the
vacancy, and within 90
_______________
86 Section 3, Rule 65, 1997 Rules of Civil Procedure.
87 JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November
20, 2000, 345 SCRA 143.
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days from the submission of the list, in the case of the lower courts. The 90-day
period is directed at the President, not at the JBC. Thus, the JBC should start the
process of selecting the candidates to fill the vacancy in the Supreme
Court before the occurrence of the vacancy.
Under the Constitution, 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 withinthe 90-day period from the occurrence of
the vacancy. The JBC has no discretion to submit the list 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. For the JBC to do so will
be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted
under the Constitution to reflect on the qualifications of the nominees named in
the list of the JBC before making the appointment.
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 selection of
the candidates whose names will be in the list to be submitted to the President lies
within the discretion of the JBC. The object of the petitions for mandamus herein
should only refer to the duty to submit to the President the list of nominees for
every vacancy in the Judiciary, because in order to constitute unlawful neglect of
duty, there must be an unjustified delay in performing that
duty.88 For mandamus to lie against the JBC, therefore, there should be an
unexplained delay on its part in recommending nominees to the Judiciary, that is,
in submitting the list to the President.
The distinction between a ministerial act and a discretionary one has been
delineated in the following manner:
_______________
88 Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110,
citing Musni v. Morales, 315 SCRA 85, 86 (1999).
753
VOL. 615, March 17, 2010 753
De Castro vs. Judicial and Bar Council (JBC)
“The distinction between a ministerial and discretionary act is well delineated.
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. If the
law imposes a duty upon a public officer and gives him the right to decide
how or when the duty shall be performed, such duty is discretionary and
not ministerial. The duty is ministerial only when the discharge of the same (d) To continue its proceedings for the nomination of candidates to fill
requires neither the exercise of official discretion or judgment.”89 other vacancies in the Judiciary and submit to the President the short list
Accordingly, we find no sufficient grounds to grant the petitions of nominees corresponding thereto in accordance with this decision.
for mandamus and to issue a writ of mandamus against the JBC. The actions for SO ORDERED.
that purpose are premature, because it is clear that the JBC still has until May Leonardo-De Castro and Perez, JJ., concur.
17, 2010, at the latest, within which to submit the list of nominees to the President Puno (C.J.), No part. JBC or respondent.
to fill the vacancy created by the compulsory retirement of Chief Justice Puno. Carpio, J., No Part, as Senior Associate Justice, I am involved either
way.755
IV VOL. 615, March 17, 2010 755
De Castro vs. Judicial and Bar Council (JBC)
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only
the President can appoint the Chief Justice. Hence, Soriano’s petition for Corona, J., No part.
prohibition in G.R. No. 191032, which proposes to prevent the JBC from Carpio-Morales, J., Please see Dissenting Opinion.
intervening in the process of nominating the successor of Chief Justice Puno, lacks Velasco, Jr., I join the separate opinion of Justice Nachura.
merit. Nachura, J., Please see Separate Opinion.
On the other hand, the petition for prohibition in G.R. No. 191342 is similarly Brion, J., See my Separate Opinion.
devoid of merit. The challenge mounted against the composition of the JBC based Peralta, J., In the result. I join the opinion of Justice Brion.
on the allegedly unconstitutional allocation of a vote each to the ex officio members Del Castillo, J., In the result. I share the view of Justice Brion.
from the Senate and the House of Representatives, thereby prejudicing the Abad, J., Please see my Concurrence.
chances of some candidates for nomi- Villarama, Jr., J., I certify that Justice Villarama voted in favor of the
Decision of Justice Bersamin—Puno, C.J.
Mendoza, J., In the result. I join Justice Brion in his Separate Opinion.
_______________
DISSENTING OPINION
CARPIO-MORALES, J.:
89 Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA “Although the Chief Justice is primus inter pares, he cannot legally decide a
273. case on his own because of the Court’s nature as a collegial body. Neither can the
754 Chief Justice, by himself, overturn the decision of the Court, whether of a division
754 SUPREME COURT REPORTS ANNOTATED or the en banc.”
De Castro vs. Judicial and Bar Council (JBC) —Associate Justice Renato C. Corona in
Complaint of Mr. Aurelio Indencia Arrienda
nation by raising the minimum number of votes required in accordance with the
against Justice Puno, 499 Phil. 1, 14; 460
rules of the JBC, is not based on the petitioners’ actual interest, because they have
SCRA 1, 15 (2005)
not alleged in their petition that they were nominated to the JBC to fill some
Primus inter pares. First among equals. The Latin maxim indicates that a
vacancies in the Judiciary. Thus, the petitioners lack locus standi on that issue.
person is the most senior of a group of people sharing the same rank or office. The
WHEREFORE, the Court:
phrase has been used to describe the status, condition or role of the prime minister
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
in most parliamentary nations, the high-ranking prelate in sev-
and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being
premature; 756
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 756 SUPREME COURT REPORTS ANNOTATED
191342 for lack of merit; and De Castro vs. Judicial and Bar Council (JBC)
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the eral religious orders, and the chief justice in many supreme courts around the
Judicial and Bar Council: world.1
(a) To resume its proceedings for the nomination of candidates to fill The inclination to focus on the inter pares without due emphasis on
the vacancy to be created by the compulsory retirement of Chief Justice the primus/prima2 has spawned contemporary discourse that revives the original
Reynato S. Puno by May 17, 2010; tug-of-war between domination and parity, which impasse the conceived maxim
(b) To prepare the short list of nominees for the position of Chief precisely intended to resolve.
Justice; In the present case, several arguments attempt to depict a mirage of doomsday
(c) To submit to the incumbent President the short list of nominees for scenarios arising from the impending vacancy of the primus in the Court as a
the position of Chief Justice on or before May 17, 2010; and springboard for their plea to avert a supposed undermining of the independence of
the judiciary. In reality, the essential question boils down to the limitation
on the appointing power of the President.
The ponencia of Justice Bersamin holds that the incumbent President can
appoint the next Chief Justice upon the retirement of Chief Justice Reynato S.
Puno on May 17, 2010 since the prohibition during election period3 does not extend
to appointments in the judiciary, thereby reversing In re appointments of Hon.
Valenzuela & Hon. Vallarta.4
The ponencia additionally holds that the Judicial and Bar Council (JBC) has
until May 17, 2010, at the latest, within which to submit to the President the list
of nominees for the position of Chief Justice.
I DISSENT.
_______________
1 Vide http://en.wikipedia.org/wiki/Primus_inter_pares (visited: March 10,
2010).
2 Feminine ablative of primus (first among her equals).
3 Constitution, Art. VII, Sec. 15. 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. (emphasis, italics and underscoring supplied)
4 358 Phil. 896; 298 SCRA 408 (1998).
757
VOL. 615, March 17, 2010 757
De Castro vs. Judicial and Bar Council (JBC)
Constitutional draftsmanship style is
the weakest aid in arriving at a con-
stitutional construction
The first ratiocination adverts to the “organization and arrangement of the
provisions of the Constitution” that was, as the ponencia declares, purposely made
by the framers of the Constitution to “reflect their intention and manifest their
vision” of the charter’s contents.
It is unfortunate that the ponencia chiefly relies on the trivialities of
draftsmanship style in arriving at a constitutional construction. The petitioner
in Anak Mindanao Party-List Group v. The Executive Secretary5 raised a similar
argument, but the Court held:
“AMIN goes on to proffer the concept of “ordering the law” which, so it alleges,
can be said of the Constitution’s distinct treatment of these three areas, as
reflected in separate provisions in different parts of the Constitution. It argues
that the Constitution did not intend an over-arching concept of agrarian reform to
encompass the two other areas, and that how the law is ordered in a certain
way should not be undermined by mere executive orders in the guise of
administrative efficiency.
The Court is not persuaded.
The interplay of various areas of reform in the promotion of social justice is not
something implausible or unlikely. Their interlocking nature cuts across labels
and works against a rigid pigeonholing of executive tasks among the members of
the President’s official family. Notably, the Constitution inhibited from identifying
and compartmentalizing the composition of the Cabinet. In vesting ex-
_______________
5 G.R. No. 166052, August 29, 2007, 531 SCRA 583, where the petitioner
assailed the placing of the National Commission on Indigenous Peoples as an
attached agency of the Department of Agrarian Reform on the ground that, inter
alia, policy and program coordination between allegedly conceptually different
government agencies is unconstitutional.
758
758 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
ecutive power in one person rather than in a plural executive, the evident intention
was to invest the power holder with energy.
AMIN takes premium on the severed treatment of these reform areas in
marked provisions of the Constitution. It is a precept, however, that
inferences drawn from title, chapter or section headings are entitled to
very little weight. And so must reliance on sub-headings, or the lack
thereof, to support a strained deduction be given the weight of helium.
Secondary aids may be consulted to remove, not to create doubt. AMIN’s thesis
unsettles, more than settles the order of things in construing the Constitution. Its
interpretation fails to clearly establish that the so-called “ordering” or
arrangement of provisions in the Constitution was consciously adopted
to imply a signification in terms of government hierarchy from where a
constitutional mandate can per se be derived or asserted. It fails to
demonstrate that the “ordering” or layout was not simply a matter of style
in constitutional drafting but one of intention in government
structuring. With its inherent ambiguity, the proposed interpretation cannot be
made a basis for declaring a law or governmental act unconstitutional.” 6 (emphasis
and underscoring supplied)
Concededly, the allocation of three Articles in the Constitution devoted to the
respective dynamics of the three Departments was deliberately adopted by the
framers to allocate the vast powers of government among the three Departments
in recognition of the principle of separation of powers.
The equation, however, does not end there. Such kind of formulation detaches
itself from the concomitant system of checks and balances. Section sequencing
alone of Sections 14, 15 and 16 of Article VII, as explained in the fourth
ratiocination, does not suffice to signify functional structuring.
That the power of judicial appointment was lodged in the President is a
recognized measure of limitation on the power of the judiciary, which measure,
however, is counterbalanced
_______________
6 Id., at pp. 601-603.
759
 VOL. 615, March 17, 2010 759
De Castro vs. Judicial and Bar Council (JBC)
by the election ban due to the need to insulate the judiciary from the political
climate of presidential elections. To abandon this interplay of checks and balances
on the mere inference that the establishment of the JBC could de-politicize the
process of judicial appointments lacks constitutional mooring.
The establishment of the JBC is not
sufficient to curtail the evils of mid-
night appointments in the judiciary
The constitutional prohibition in Section 15 found its roots in the case
of Aytona v. Castillo,7 where among the “midnight” or “last minute”
appointments voided to abort the abuse of presidential prerogatives or partisan
efforts to fill vacant positions were one in the Supreme Court and two in the Court
of Appeals.
Heeding Aytona’s admonition, the Constitutional Commission (ConCom) saw
it fit to provide for a comprehensive ban on midnight appointments, finding that
the establishment of the JBC is not enough to safeguard or insulate judicial
appointments from politicization. The ConCom deliberations reveal:
MR. GUINGONA: Madam President.
THE PRESIDENT: Commissioner Guingona is recognized.
MR. GUINGONA: Would the distinguished proponent accept an amendment
to his amendment to limit this prohibition to members of collegiate courts?
The judges of the lower courts perhaps would not have the same category
or the same standing as the others mentioned here.
MR. DAVIDE: Pursuant to the post amendment, we already included here
government-owned or controlled corporations or their subsidiaries which
are not even very sensitive positions. So with more reason that the
prohibition should apply to appointments in these bodies.
President is six years and under what we had voted on, there is no
reelection for him. Yet he can continue to rule the country through
appointments made about the end of his term to these sensitive positions.
FR. BERNAS: At any rate, there are other checks as far as the appointment of
those officers is concerned.
MR. DAVIDE: Only insofar as the Commission on Appointments is concerned
for offices which would require consent, and the Judicial Bar Council
insofar as the judiciary is concerned.
FR. BERNAS: We leave the matter to the body for a vote.8 (capitalization and
emphasis supplied)
The clear intent of the framers is thus for the ban on midnight appointments
to apply to the judiciary. The succeeding interpellations9 suggest no departure
from this intent.
_______________
8 RECORD OF THE 1986 CONSTITUTIONAL COMMISSION, Vol. 2, July 31, 1986, RCC
No. 44 (CD Format).
9 Id. Following were the deliberations concerning the prohibition
on nepotism,wherein the deletion of the word “judiciary” was reflected in the final
text of Section 13, Article VII of the Constitution:
761
VOL. 615, March 17, 2010 761
De Castro vs. Judicial and Bar Council (JBC)
For almost half a century, the seeds of Aytona, as nurtured and broadened by
the Constitution, have grown into an estab-
_______________

_______________ MR. TINGSON: Madam President, may I just ask one

question of the proponent?
7 No. L-19313, January 19, 1962, 4 SCRA 1, 8. THE PRESIDENT: Commissioner Tingson is recognized.
760 MR. TINGSON: Even though the members of the
760 SUPREME COURT REPORTS ANNOTATED President’s family are related to him,
shall we bar the men of probity,
De Castro vs. Judicial and Bar Council (JBC)
honesty and specialized technical
THE PRESIDENT: Does the Committee accept?
knowledge from being appointed?
FR. BERNAS: What is common among these people—Ministers, Deputy
MR. DAVIDE: That is precisely the core or the meat
Ministers, heads of bureaus or offices—is that they are under the control of
and the heart of the prohibition. In
the President.
effect, it is just extending it to these
MR. GUINGONA: That is correct.
sensitive positions that I have
FR. BERNAS: Whereas, the other offices the Commissioner mentioned are mentioned.
independent offices. MR. TINGSON: But in a sense would that not be
MR. DAVIDE: The idea of the proposal is that about the end of the term of the
counterproductive?
President, he may prolong his rule indirectly by appointing people to these
MR. DAVIDE: If that is the thinking of the
sensitive positions, like the commissions, the Ombudsman, the
Commissioner, he should rather
JUDICIARY, so he could perpetuate himself in power even beyond his term
propose for the deletion of the entire
of office; therefore foreclosing the right of his successor to make sentence since that is really its effect.
appointments to these positions. We should realize that the term of the
 MR. TINGSON: Will the Commissioner join me if I do? JUDGES OF THE METROPOLITAN
MR. DAVIDE:No. As a matter of fact, I am expanding TRIAL COURTS.
the prohibition. But if the MR. DAVIDE: To avoid any further complication, I
Commissioner’s position is that we would agree to delete “JUDICIARY.”
might be prohibiting these capable MR. GUINGONA: Thank you.
men who are relatives of the President, MR. DAVIDE: So, on line 5, the only amendment
then the deletion would be proper, would consist of the following: after
which I am not in favor of. the word “as,” insert MEMBERS OF
MR. TINGSON: Madam President, we have already THE CONSTITUTIONAL
limited the presidency to one term, COMMISSIONS OR THE OFFICE
predicated on the fact that he will now OF THE OMBUDSMAN.
become a statesman rather than a THE PRESIDENT: Does the Committee prefer to throw
partisan politician. Then he will be this to the body?
acting for the good of our country; that MR. REGALADO: We prefer that we submit it to the
is, we base that philosophy with that body.
predicate. So I am just wondering why VOTING
we should not utilize these men who, 763
according to Commis- VOL. 615, March 17, 2010 763
762
De Castro vs. Judicial and Bar Council (JBC)
762 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC) The second ratiocination in the ponencia could thus not remove an added
lished doctrine that has weathered legal storms like Valenzuela. constitutional safeguard by pretending to have examined and concluded that the
establishment of the JBC had eliminated all encompassing forms of political
_______________ maneuverings during elections. Otherwise, reading into the Constitution such
conclusion so crucial to the scheme of checks and balances, which is neither written
sioner Uka, happen to have nor tackled, undermines the noticeable silence or restraint exercised by the
committed a crime of being related to framers themselves from making a definitive analysis.
the President. To illustrate, the instance given in the fifth ratiocination that having the
MR. DAVIDE: Is the Commissioner proposing that new President appoint the next Chief Justice cannot ensure judicial independence
as an amendment to my amendment? because the appointee can also become beholden to the appointing authority bears
MR. TINGSON: I would like to. an inconsistent stance. It does not admit or recognize that the mechanism of
MR. DAVIDE: In the sense that the Commissioner’s removal by impeachment eliminates the evils of political indebtedness. In any
amendment is to delete the entire event, that level of reasoning overlooks the risk of compromising judicial
sentence? independence when the outgoing President faces the Court in the charges that may
MR. TINGSON: Is that the Commissioner’s thinking be subsequently filed against her/him, and when the
also?
MR. DAVIDE: No, I am entirely for the opposite. _______________
MR. TINGSON: Then, I am not insisting anymore.
MR. DAVIDE: If the Commissioner is introducing it THE PRESIDENT: Those in favor of this proposed
as an amendment, I am sorry, I have to amendment of Commissioner Davide
reject his proposal. on page 9, line 5, to include these two
THE PRESIDENT: So, let us now proceed to the offices: the constitutional
amendment of Commissioner Davide. commissions and the office of the
MR. GUINGONA: Madam President, may I just offer one Ombudsman, please raise their hand.
more amendment to the distinguished (Several Members raised their hand.)
proponent? After the word Those against the proposed amendment will please raise their hand. (Few
“JUDICIARY,” we insert: EXCEPT Members raised their hand.)
The results show 24 votes in favor and 9 against; the amendment is approved.
 MR. ROMULO: Madam President, we are almost at the end of our long
journey. I ask for continued patience on the part of everyone. We are now on
Section 20. We have consolidated all the amendments for presentation by one
person; and that is, Commissioner Sarmiento. Will the Chair recognize him please?
(emphasis, italics and underscoring supplied).
764
764 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
appointing President is up for re-election in the peculiar situation
contemplated by Section 4, Article VII of the Constitution.
All rules of statutory construction re-
volt against the interpretation arrived
at by the ponencia
It is simplistic and unreliable for the ponencia to contend that had the framers
intended to extend the ban in Article VII to appointments in the judiciary, they
would have easily and surely written so in Article VIII, for it backlashes the
question that had the framers intended to exclude judicial appointments in Article
VIII from the prohibition in Article VII, they would have easily and surely written
so in the excepting proviso in Article VII.
Taking into account how the framers painstakingly rummaged through
various sections of the Constitution and came up with only one exception with the
need to specify the executive department, it insults the collective intelligence and
diligence of the ConCom to postulate that it intended to exclude the judiciary but
missed out on that one.
To hold that the ban on midnight appointments applies only to executive
positions, and not to vacancies in the judiciary and independent constitutional
bodies, is to make the prohibition practically useless. It bears noting that Section
15, Article VII of the Constitution already allows the President, by way of
exception, to make temporary appointments in the Executive Department during
the prohibited period. Under this view, there is virtually no restriction on the
President’s power of appointment during the prohibited period.
The general rule is clear since the prohibition applies to ALL kinds of midnight
appointments. The Constitution made no distinction. Ubi lex non distinguit nec nos
distinguere debemos.765
VOL. 615, March 17, 2010 765
De Castro vs. Judicial and Bar Council (JBC)
The exception is likewise clear. Expressio unius et exclusio alterius. The express
mention of one person, thing or consequence implies the exclusion of all
others.10 There is no clear circumstance that would indicate that the enumeration
in the exception was not intended to be exclusive. Moreover, the fact that Section
15 was couched in negative language reinforces the exclusivity of the exception.
“Under the rules of statutory construction, exceptions, as a general rule, should
be strictly but reasonably construed; they extend only so far as their language
fairly warrants, and all doubts should be resolved in favor of the general provisions
rather than the exception. Where a general rule is established by statute with
exceptions, the court will not curtail the former nor add to the latter by
implication.”11 (italics in the original; underscoring supplied)
The proclivity to innovate legal concepts is enticing. Lest the basic rule be
forgotten, it helps to once more recite that when the law is clear, it is not
susceptible to interpretation and must be applied regardless of who may be
affected, even if the law may be harsh or onerous.12
In its third ratiocination, the ponencia faults Valenzuela for not according
weight and due consideration to the opinion of Justice Florenz Regalado. It accords
high regard to the opinion expressed by Justice Regalado as a former ConCom
Member, to the exception of the opinion of all others similarly situated.
It bears noting that the Court had spoken in one voice in Valenzuela.
The ponencia should not hastily reverse, on the sole basis of Justice Regalado’s
opinion, the Court’s unani-
_______________
10 The Iloilo City Zoning Board of Adjustment & Appeals v. Gegato-Abecia
Funeral Homes, Inc., 462 Phil. 803, 815; 417 SCRA 337, 345 (2003).
11 Samson v. Court of Appeals, No. L-43182, November 25, 1986, 145 SCRA
654, 659.
12 Pascual v. Pascual-Bautista, G.R. No. 84240, March 25, 1992, 207 SCRA
561, 568.
766
766 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
mous en banc decision penned by Chief Justice Andres Narvasa, and concurred in
by, inter alia, Associate Justices who later became Chief Justices—Hilario Davide,
Jr., Artemio Panganiban and Reynato Puno.
The line of reasoning is specious. If that is the case and for accuracy’s sake, we
might as well reconvene all ConCom members and put the matter to a vote among
them.
Providentially, jurisprudence is replete with guiding principles to
ascertain the true meaning of the Constitution when the provisions as
written appear unclear and the proceedings as recorded provide little
help:
“While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason and
purpose of the resulting Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention “are of value
as showing the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large majority who did
not talk, much less of the mass of our fellow citizens whose votes at the polls gave
that instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face.” The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the
framers’ understanding thereof.”13 (underscoring supplied)
The clear import of Section 15 of Article VII is readily apparent. The people
may not be of the same caliber as Justice Regalado, but they simply could not read
into Section 15 something that is not there. Casus omissus pro omisso habendus dent to do so will be a clear disobedience to the Constitution.”15
est. The ponencia quotes certain records of the ConCom deliberations which,
however, only support the view that the number of Justices should “not be reduced
_______________ for any appreciable length of time” and it is a “mandate to the executive to fill the
vacancy”. Notably, there is no citation of any debate on how the framers reckoned
13 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 887; 415 SCRA or determined an appreciable length of time of 90 days, in which case a delay of
44, 128-129 (2003), citing Civil Liberties Union v. Executive Secretary, G.R. No. one day could already bring about the evils it purports to avoid and spell a culpable
83896, February 22, 1991, 194 SCRA 317, 337-338. violation of the Constitution. On the contrary, that the addition of one month to
767 the original proposal of 60 days was approved without controversy16 ineluctably
shows that the intent was not to strictly impose an inflexible timeframe.
VOL. 615, March 17, 2010 767
Respecting the rationale for suspending the 90-day period, in cases where there
De Castro vs. Judicial and Bar Council (JBC) is physical or legal impossibility of compliance with the duty to fill the vacancy
within the said period, the fulfillment of the obligation is released because the law
What complicates the ponencia is its great preoccupation with Section 15 of cannot exact compliance with what is impossible.
Article VII, particularly its fixation with sentences or phrases that are neither In the present case, there can only arise a legal impossibilitywhen the JBC
written nor referred to therein. Verba legis non est recedendum, index animi sermo list is submitted or the vacancy occurred during the appointments ban and the 90-
est. There should be no departure from the words of the statute, for speech is the day period would expire before the end of the appointments ban, in which case the
index of intention. fresh 90-day period should start to run at noon of June 30. This was the factual
IN FINE, all rules of statutory construction virtually revolt against the antecedent respecting the trial court judges involved in Valenzuela. There also
interpretation arrived at by the ponencia. arises a legal impossibility when the list is submitted or the vacancy occurred prior
The 90-day period to fill a vacancy in to the ban and no appointment was made before the ban starts, rendering the lapse
the Supreme Court is suspended during of the 90-day period within the period of the ban, in which case the remaining
the ban on midnight appointments period should resume to run at noon of June 30. The outgoing President would be
Although practically there is no constitutional crisis or conflict involved upon released from non-fulfillment of the constitutional obligation, and the duty
the retirement of the incumbent Chief Justice, the ponencia illustrates the devolves upon the new President.
inapplicability of the 90-day mandate to every situation of vacancy in the Supreme
Court (i.e., the 19-day vacuum articulated in the sixth ratiocination) if only to _______________
buttress its thesis that judicial appointment is an exception to the midnight
appointments ban. The contemplated situation, however, supports the idea that 15 Decision, p. 37.
the 90-day period is suspended during the effectivity of the ban. 16 Infra note 18.
I submit that the more important and less complicated question iswhether the 769
90-day period in Section 4(1) of Article VIII14 runs during the period of prohibition
VOL. 615, March 17, 2010 769
in Section 15 of Article VII.
In response to that question, the ponencia declares that it is the President’s De Castro vs. Judicial and Bar Council (JBC)
“imperative duty to make an appointment of a Member of the Supreme Court
within 90 days from the occurrence of the vacancy [and that t]he failure by the Considering also that Section 15 of Article VII is an express limitation on the
Presi- President’s power of appointment, the running of the 90-day period is
deemed suspended during the period of the ban which takes effect only once
_______________ every six years.
This view differs from Valenzuela in that it does not implement Section 15 of
14 CONSTITUTION, Art. VIII, Sec. 4 (1). The Supreme Court shall be composed Article VII so as to breach Section 4(1) of Article VIII. Instead of disregarding the
of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its 90-day period in the observance of the ban on midnight appointments, the more
discretion, in division of three, five, or seven members. Any vacancy shall be filled logical reconciliation of the two subject provisions is to consider the ban as having
within ninety days from the occurrence thereof. (emphasis and underscoring the effect of suspending the duty to make the appointment within 90 days from the
supplied) occurrence of the vacancy. Otherwise stated, since there is a ban, then there is no
768 duty to appoint as the power to appoint does not even exist. Accordingly, the 90-
day period is suspended once the ban sets in and begins or continues to run only
768 SUPREME COURT REPORTS ANNOTATED
upon the expiration of the ban.
De Castro vs. Judicial and Bar Council (JBC)
 One situation which could result in physical impossibility is the inability of 18 Vide Decision, p. 45.
the JBC to constitute a quorum for some reasons beyond their control, as that 19 RECORD OF THE 1986 CONSTITUTIONAL COMMISSION, Vol. 1, July 14, 1986,
depicted by Justice Arturo Brion in his Separate Opinion, in which case the 90-day RCC No. 29 (CD Format. Commissioner Romulo stated that “[t]he sense of the
period could lapse without fulfilling the constitutional obligation. Committee is that 60 days is awfully short and that the
Another such circumstance which could frustrate the ponencia’s depiction of [Judicial and Bar] Council, as well as thePresident, may have difficulties with
the inflexibility of the period is a “no-takers” situation where, for some reason, that.”
there are no willing qualified nominees to become a Member of the Court. 17 Some 771
might find this possibility remote, but then again, the situa- VOL. 615, March 17, 2010 771

_______________ De Castro vs. Judicial and Bar Council (JBC)

and could never submit a list to the President before the 90-day period.
17 There is no problem in the case of lower courts since the 90-day period starts Sustaining the view means20 that in case the President appoints as Chief
from the submission of the list to the President. Parenthetically, over and above Justice a sitting member of the Court, from a JBC list which includes, for instance,
the alleged level of importance and urgency between the Court and the lower incumbent justices and “outsiders,” the JBC must forthwith submit a list of
courts, the lack of applicants for judicial posts in the province is a practical reason nominees for the post left vacant by the sitting member-now new Chief Justice.
why the 90-day period for lower courts is reckoned from the submission of the JBC This thus calls for the JBC, in anticipation, to also commence and conclude another
list. Otherwise, one could just imagine the countless constitutional violations nomination process to fill the vacancy, and simultaneously submit a list of
incurred by the President. nominees for such vacancy, together with the list of nominees for the position of
Chief Justice. If the President appoints an “outsider” like Sandiganbayan Justice
770
Edilberto Sandoval as Chief Justice, however, the JBC’s toil and time in the second
770 SUPREME COURT REPORTS ANNOTATED nomination process are put to waste.
De Castro vs. Judicial and Bar Council (JBC) It is ironic for the ponencia to state on the one hand that the President would
tion at hand or the “absurdity”18 of a 19-day overlapping vacuum may have also be deprived of ample time to reflect on the qualifications of the nominees, and to
been perceived to be rare. show on the other hand that the President has, in recent history, filled the vacancy
The seventh ratiocination is admittedly a non-issue. Suffice it to state that in the position of Chief Justice in one or two days.
the Constitution is clear that the appointment must come “from a list x x x It is ironic for the ponencia to recognize that the President may need as much
prepared by the Judicial and Bar Council.” as 90 days of reflection in appointing a member of the Court, and yet abhor the
The Supreme Court can function idea of an acting Chief Justice in the interregnum as provided for by
effectively during the midnight ap- law,21 confirmed by tradition,22 and settled by jurispru-
pointments ban without an ap-
pointed Chief Justice _______________
The ponencia also holds that the JBC has until May 17, 2010, at the latest,
within which to submit to the President the list of nominees for the position of 20 In which case the Court’s complement remains incomplete with still 14
Chief Justice. It declares that the JBC should start the process of selecting the members.
candidates to fill the vacancy in the Supreme Court before the occurrence of the 21 Republic Act No. 296 (Judiciary Act of 1948), Section 12 states that in case
vacancy, explaining that the 90-day period in the proviso, “Any vacancy shall be of a vacancy in the office of Chief Justice, the Associate Justice who is first in
filled within ninety days from the occurrence thereof,” is addressed to the precedence may act as Chief Justice until one is appointed and duly qualified.
President, not to the JBC. 22 Since the time of Chief Justice Cayetano Arellano, this rule of succession
Such interpretation is absurd as it takes the application and nomination stages has been observed throughout the Court’s history whenever the position of Chief
in isolation from the whole appointment process. For the ponencia, the filling of Justice is temporarily vacant for any reason. Vide Revised copy of Special Order
the vacancy only involves the President, and the JBC was not considered when the No. 826 (March 16, 2010)
period was increased from 60 days to 90 days. The sense of the Concom is the exact 772
opposite.19 772 SUPREME COURT REPORTS ANNOTATED
The flaw in the reasoning is made more evident when the vacancy occurs by
virtue of death of a member of the Court. In that instance, the JBC could never De Castro vs. Judicial and Bar Council (JBC)
anticipate the vacancy, dence23to be an internal matter.
The express allowance of a 90-day period of vacancy rebuts any policy
_______________ argument on the necessity to avoid a vacuum of even a single day in the position
of an appointed Chief Justice.
 As a member of the Court, I strongly take exception to
the ponencia’s implication that the Court cannot function without a
sitting Chief Justice.
To begin with, judicial power is vested in one Supreme Court24and not in its
individual members, much less in the Chief Justice alone. Notably, after Chief
Justice Puno retires, the Court will have 14 members left, which is more than
sufficient to constitute a quorum.
The fundamental principle in the system of laws recognizes that there is only
one Supreme Court from whose decisions all other courts are required to take their
bearings. While most of the Court’s work is performed by its three divisions, the
Court remains one court—single, unitary, complete and supreme. Flowing from
this is the fact that, while individual justices may dissent or only partially concur,
when the Court states what the law is, it speaks with only one voice.25
The Court, as a collegial body, operates on a “one member, one vote” basis,
whether it sits en banc or in divisions. The competence, probity and independence
of the Court en banc, or those of the Court’s Division to which the Chief Justice
belongs, have never depended on whether the member voting
_______________
issued by Chief Justice Reynato S. Puno who goes on wellness and sabbatical leave
from March 18-30, 2010 designating Senior Associate Justice Antonio T. Carpio as
acting Chief Justice effective March 18, 2010 until Chief Justice Puno reports back
to work.
23 Cf. Brillantes, Jr. v. Yorac, G.R. No. 93867, December 18, 1990, 192 SCRA
358.
24 CONSTITUTION, Art. VIII, Sec. 1.
25 Complaint of Mr. Aurelio Indencia Arrienda against Justice Puno, 499 Phil.
1, 14-15; 460 SCRA 1, 16 (2005).
773
VOL. 615, March 17, 2010 773
De Castro vs. Judicial and Bar Council (JBC)
as Chief Justice is merely an acting Chief Justice or a duly appointedone.
IN LIGHT OF THE FOREGOING, I vote to hold, for the guidance of the
Judicial and Bar Council, that the incumbent President is constitutionally
proscribed from appointing the successor of Chief Justice Reynato S. Puno upon
his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010.
SEPARATE OPINION
NACHURA, J.:
“No amount of exigency can make this Court exercise a power where it
is not proper.”1
I am deeply impressed by the very well written ponencia of Justice Lucas P.
Bersamin. However, I am unable to concur in all of his conclusions. Instead, I vote
to dismiss all the petitions because they have utterly failed to present a justiciable
controversy.
The Antecedents
In recent weeks, two potential scenarios have gripped the public mind. The
first is the specter of the failure of our first ever automated election which has
evoked numerous doomsday predictions. The second is the possibility of the
appointment by President Gloria Macapagal Arroyo of the Chief Justice of the
Supreme Court—after the compulsory retirement of incumbent Chief Justice
Reynato S. Puno on May 17, 2010.
_______________
1 Chief Justice Reynato S. Puno in Atty. Oliver O. Lozano and Atty. Evangeline
J. Lozano-Endriano v. Speaker Prospero C. Nograles, Representative, Majority,
House of Representatives; Louis “Barok” C. Biraogo v. Speaker Prospero C.
Nograles, Speaker of the House of Representatives, Congress of the Philippines, G.R.
Nos. 187883 & 187910, June 16, 2009, 589 SCRA 356.
774
774 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
This has generated frenzied debates in media, in various lawyers’ assemblies,
in the academe, and in coffee shops. It has even spawned a number of rallies and
demonstrations by civil society groups and by self-styled constitutional experts.
It does not matter that these two situations are merely possibilities, that they
are conjectural and speculative at this moment in time. They have, nonetheless,
captured the public imagination, and have ushered an open season for unfettered
discussion and for dire prognostication.
Not unexpectedly, the controversy posed by the second scenario—involving
concerns closest to home—has arrived in this Court through various petitions and
interventions.
The core issue is whether the sitting President of the Philippines, Gloria
Macapagal Arroyo, can validly appoint the Chief Justice of the Supreme Court
when the incumbent Chief Justice, Reynato S. Puno, compulsorily retires on May
17, 2010, in light of two apparently conflicting provisions of the Constitution.
Article VII, Section 15, provides a constitutional limitation on the President’s
power of appointment, viz.:
“Sec. 15. 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.2
On the other hand, Article VIII, Section 4(1) contains an express mandate for
the President to appoint the Members of the Supreme Court within ninety days
from the occurrence of a vacancy, thus—
Sec. 4(1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or, in its
_______________
 2 Emphasis supplied.
775
VOL. 615, March 17, 2010 775
De Castro vs. Judicial and Bar Council (JBC)
discretion, in divisions of three, five, or seven Members. Any vacancy shall be
filled within ninety days from the occurrence thereof.3
in relation to Article VIII, Section 9, which states that—
“Sec. 9. The Members of the Supreme Court and judges of lower courts shall
be appointed by the President from a list of at least three nominees prepared by
the Judicial and Bar Council for every vacancy. Such appointments need no
confirmation. Any vacancy shall be filled within ninety days from the occurrence
thereof.
For the lower courts, the President shall issue the appointments within ninety
days from the submission of the list.
The perceived conflict was resolved in administrative matter, 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.4 Therein, the Court was confronted with
the question of whether the appointments of the concerned RTC judges, issued
within two months before the presidential election in 1998, were valid. The Court
answered that, in the given situation, Article VII, Section 15, has primacy over
Article VIII, Section 4(1), because the former was “couched in stronger negative
language.” Accordingly, the appointments were nullified. However, Valenzuela’s
applicability to the present controversy is challenged by most of herein petitioners.
The petitions were filed following certain acts of the Judicial and Bar Council
(JBC) related to the constitutional procedure for the appointment of Supreme
Court justices, specifically in the matter of the appointment of Chief Justice Puno’s
successor. On January 18, 2010, the JBC passed a Resolution which relevantly
reads:
_______________
3 Emphasis supplied.
4 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408.
776
776 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
“The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to
start the process of filling up the position of Chief Justice to be vacated on May 17,
2010 upon the retirement of the incumbent Chief Justice Honorable Reynato S.
Puno.
It will publish the opening of the position for applications or recommendations;
deliberate on the list of candidates; publish the names of candidates; accept
comments on or opposition to the applications; conduct public interviews of
candidates; and prepare the shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in
the light of the Constitution, existing laws and jurisprudence, the JBC welcomes
and will consider all views on the matter.”5
On January 20, 2010, the JBC formally announced the opening, for application
or recommendation, of the position of Chief Justice of this Court, thus—
“The Judicial and Bar Council (JBC) announces the opening for application or
recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT,
which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later
than 4 February 2010 (Thursday) to the JBC Secretariat. x x x.”6
In its February 8, 2010 meeting, the JBC decided to proceed with the process
of announcing to the public the names of the candidates for the position. Included
in the list of applicants are: (1) Brion, Arturo D.; (2) Carpio, Antonio T.; (3) Corona,
Renato C.; (4) Carpio Morales, Conchita; (5) Leonardo-de Castro, Teresita J.; and
(6) Sandoval, Edilberto G.7
_______________
5 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf (visited: March 11,
2010).
6 http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan.22’10.pdf
(visited: March 11, 2010).
7 Comment of the JBC, p. 6.
777
VOL. 615, March 17, 2010 777
De Castro vs. Judicial and Bar Council (JBC)
These developments, having already engendered near-hysterical debates,
impelled a number of petitioners to file suit. However, obviously hedging against
the possibility that the cases would be disallowed on the ground of prematurity,
petitioners came to Court using different procedural vehicles.
In G.R. No. 191002, petitioner Arturo de Castro entreats the Court to issue a
writ of mandamus to compel the JBC to send the list of nominees for Chief Justice
to the incumbent President when the position becomes vacant upon the retirement
of Chief Justice Puno on May 17, 2010.
The Philippine Constitution Association (PHILCONSA) and John Peralta,
petitioners in G.R. Nos. 191057 and 191149, respectively, plead for the same relief.
In G.R. No. 191032, Jaime Soriano seeks the issuance by the Court of a writ
prohibiting the JBC from continuing with its proceedings, particularly the
screening of applicants for Chief Justice, based on the hypothesis that the
authority to appoint the Chief Justice pertains exclusively to the Supreme Court.
He posits that it is the Court that must commence its own internal proceeding to
select the successor of Chief Justice Puno.
Amador Tolentino, Jr., in G.R. No. 191342, asks this Court to enjoin and
restrain the JBC from submitting the list of nominees for judiciary positions,
including that of Chief Justice, to the incumbent President during the period
covered in Article VII, Section 15 of the Constitution.
 In a cleverly crafted petition which he denominated an administrative matter,
former Solicitor General Estelito P. Mendoza filed A.M. No. 10-2-5-SC, imploring
this Court to rule, for the guidance of the JBC, whether the constitutional
prohibition in Article VII, Section 15, applies to positions in the judiciary and
whether the incumbent President may appoint the successor of Chief Justice Puno
upon the latter’s retirement.778
778 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Notably, although the petitions sport different appellations (for mandamus, or
prohibition, or even as an administrative matter), they (except the Soriano
petition) share a common bottom line issue, i.e., a definitive ruling on whether, in
light of the perceived conflict between Article VII, Section 15, and Article VIII,
Section 4(1), the incumbent President can validly appoint a Chief Justice after
Chief Justice Puno retires on May 17, 2010.
Thus, the Court consolidated the petitions and required the JBC and the Office
of the Solicitor General (OSG) to file their respective comments.
Significantly, the JBC, in its February 25, 2010 Comment, stated:
11. The next stage of the process which will be the public interview of
the candidates, and the preparation of the shortlist of candidates have yet
to be undertaken by the JBC as of this date, including the interview of the
constitutional experts, as may be needed.
Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4(1), Article
VIII of the Constitution, which provides that vacancy in the Supreme
Court shall be filled within ninety (90) days from the occurrence thereof,
Section 15, Article VIII of the Constitution concerning the ban on
Presidential appointments “two (2) months immediately before the next
presidential elections and up to the end of his term” and Section 261(g),
Article XXII of the Omnibus Election Code of the Philippines.”8
On the other hand, the OSG, in its Comment dated February 26, 2010, took
the position that the incumbent President of the Philippines can appoint the
successor of Chief Justice Puno when he retires on May 17, 2010, because the
prohibi-
_______________
8 Italics supplied.
779
VOL. 615, March 17, 2010 779
De Castro vs. Judicial and Bar Council (JBC)
tion in Article VII, Section 15, of the Constitution does not apply to appointments
in the Supreme Court.
Meanwhile, several motions for intervention with oppositions-in-intervention
were received by the Court.
Oppositors-Intervenors Antonio Gregorio III, Peter Irving Corvera, Walden
Bello, Loretta Ann Rosales, and National Union of Peoples’ Lawyers uniformly
contend in their pleadings that the consolidated petitions should be
dismissed outright, because of the absence of an actual case or
controversy ripe for judicial adjudication and because of petitioners’ lack
of legal standing to institute the cases.
Oppositor-Intervenor Mitchell John Boiser posits, among others, that the
petitions for mandamus are premature because there is yet no final list of
nominees and the position of Chief Justice is not yet vacant.
Oppositors-Intervenors Yolanda Quisumbing-Javellana, Belleza Alojado
Demaisip, Teresita Gandionco-Oledan, Ma. Verena Kasilag-Villanueva, Marilyn
Sta. Romana, Leonila de Jesus, and Guinevere de Leon contend, among others,
that the incumbent President is prohibited from making appointments within the
period prescribed in Article VII, Section 15; that the next President will still have
ample time to appoint a Chief Justice when Chief Justice Puno retires on May 17,
2010 before the 90-day period for appointment mandated in Article VIII, Section
4(1) expires; and that in the interim, the duties of the Chief Justice can be
exercised by the most senior of the incumbent Supreme Court justices.
My Position
After careful perusal of the pleadings and painstaking study of the applicable
law and jurisprudence, I earnestly believe that the consolidated petitions should
be dismissed, because they do not raise an actual case or controversy ripe
for judicial determination.780
780 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
As an essential ingredient for the exercise of the power of judicial review,
an actual case or controversy involves a conflict of legal rights, an assertion of
opposite legal claims susceptible to judicial resolution.9 The controversy must
be justiciable—definite and concrete—touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on one hand, and a denial thereof, on the
other; that is, the case must concern a real and not a merely theoretical question
or issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts. 10 The
rationale for this requirement is to prevent the courts through avoidance of
premature adjudication from entangling themselves in abstract disagreements,
and for us to be satisfied that the case does not present a hypothetical injury or a
claim contingent upon some event that has not and indeed may never transpire.11
Thus, justiciability requires (1) that there be an actual controversy between
or among the parties to the dispute; (2) that the interests of the parties be adverse;
(3) that the matter in controversy be capable of being adjudicated by judicial power;
and (4) that the determination of the controversy will result in practical relief to
the complainant.12
_______________
 9 Congressman Enrique T. Garcia of the 2nd District of Bataan v. The
Executive Secretary, The Secretary of the Department of Energy, Caltex Philippines,
Inc., Petron Corporation, and Pilipinas Shell Corporation, G.R. No. 157584, April
2, 2009, 583 SCRA 119.
10Information Technology Foundation of the Philippines v. Commission on
Elections, G.R. No. 159139, June 15, 2005, 460 SCRA 291, 312-313.
11 Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 570,
858 A.2d 709 (2004).
12 Astoria Federal Mortgage Corporation v. Matschke, 111 Conn. App. 462, 959
A.2d 652 (2008).
781
VOL. 615, March 17, 2010 781
De Castro vs. Judicial and Bar Council (JBC)
By these standards, the consolidated petitions do not present a justiciable
controversy because of the absence of clashing legal rights. The JBC has merely
started the selection process by accepting applications and nominations for the
position of Chief Justice. This is only the initial stage of the procedure for
appointment of a Chief Justice. By the JBC’s own admission, it has yet to
undertake the public interview of the applicants; it has yet to prepare the shortlist
and to decide whether it needs to interview constitutional experts.
Arturo de Castro and John Peralta justify the propriety of the filing of their
respective petitions for certiorari and mandamus by a common thread: that the
JBC has deferred its decision as to whom to submit the list of
nominees.13 They are then asking the Court to compel the JBC to submit the
list to the incumbent President.
De Castro’s and Peralta’s submission tends to mislead the Court. It is
clear from the narrated facts that there is yet no list to submit. The JBC is still in
the process of screening applicants for the position. Since there is no list to be
submitted, there can be no deferment of its submission. De Castro and Peralta
have not shown or even alleged that the JBC has refused or has been
unlawfully neglecting14 to
_______________
13 De Castro petition, p. 5; and Peralta petition, p. 1.
14 Section 3 of Rule 65 pertinently provides that:
Sec. 3. Petition for mandamus.—When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect
the rights of the petitioner, and to pay
782
782 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
submit its list, if it is already in existence, to the incumbent
President. Mandamus is proper only to compel the performance, when refused,
of a ministerial duty.15 The mandamus petition therefore has no leg to stand on as
it presents no actual case ripe for judicial determination.
PHILCONSA, for its part, contends that two applicants for the post, Justices
Carpio and Carpio Morales, manifested their interest in their nomination on the
condition that the same will be submitted to the next President. According to
PHILCONSA, this fact “has created a dilemma/quandary to respondent JBC
whether to exclude [from] or include [in the list] the names of said two Senior
Justices.”16 It then prays for this Court to rule on the issue.
PHILCONSA, like de Castro and Peralta, is not completely truthful. From its
comment, it appears that, as early as February 10, 2010, the JBC had already
included the two justices, despite their conditional acceptance of their
nominations, in the list of applicants for the post. There is no quandary to speak
of.
To justify their petitions for prohibition, Jaime Soriano and Amador Tolentino,
Jr. allege that the JBC has already started the screening process for Chief
Justice.17 Thus, they claim that the Court can now resolve the constitutional
question and issue the writ prohibiting the JBC from submitting the list of
nominees to the incumbent President.
As earlier mentioned, absent a shortlist of nominees for Chief Justice prepared
by the JBC, there is yet nothing that the Court can prohibit the JBC
from submitting to the incumbent President. The JBC has not even intimated
concretely that it will perform the act sought to be prohibited—
_______________
the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.
15 Pefianco v. Moral, 379 Phil. 468, 479; 322 SCRA 439 (2000).
16 PHILCONSA petition, p. 5.
17 Soriano petition, p. 4; and Tolentino petition, p. 2.
783
VOL. 615, March 17, 2010 783
De Castro vs. Judicial and Bar Council (JBC)
submitting a list to the incumbent President. The JBC merely started the
screening process. Let it be noted that a writ of prohibition is issued to command
a respondent to desist from further proceeding in the action or matter
specified.18 Likewise, without a shortlist, there is nothing that this Court can
mandate the JBC to submit to the President.
As to the petition filed by Estelito Mendoza, while it is captioned as an
administrative matter, the same is in the nature of a petition for declaratory
relief. Mendoza pleads that this Court interpret two apparently conflicting
provisions of the Constitution—Article VII, Section 15 and Article VIII, Section
4(1). Petitioner Mendoza specifically prays for such a ruling “for the guidance of
the [JBC],” a relief evidently in the nature of a declaratory judgment.
 Settled is the rule that petitions for declaratory relief are outside the
jurisdiction of this Court.19 Moreover, the Court
_______________
18 Section 2 of Rule 65 provides that:
Sec. 2. Petition for prohibition.—When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal or any other plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
19 Article VIII, Section 5 of the Constitution does not include petitions for
declaratory relief among those within the original jurisdiction of the Supreme
Court. Section 1 of Rule 63 further provides that:
Sec. 1. Who may file petition.—Any person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other governmental regulation
may, before breach or violation
784
784 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
does not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging.20 While Mendoza and the other
petitioners espouse worthy causes, they have presented before this Court issues
which are still subject to unforeseen possibilities. In other words, the issues they
raised are hypothetical and unripe for judicial determination.
At this point, several contingent events are still about to unfold. The
JBC, after it has screened the applicants, may decide to submit the shortlist of
nominees either before or after the retirement of Chief Justice Puno. If it decides
to submit the list after May 17, 2010, it may opt to transmit said list of nominees
to President Macapagal-Arroyo or to the next President. If the list is transmitted
to her, the incumbent President may either appoint or not appointthe
replacement of Chief Justice Puno. We cannot assume that the JBC will do one
thing or the other. Neither can we truly predict what the incumbent President will
do if such a shortlist is transmitted to her. For us to do so would be to engage in
conjecture and to undertake a purely hypothetical exercise.
Thus, the situation calling for the application of either of the
conflicting constitutional provisions will arise only when still other
contingent events occur. What if the JBC does not finish the screening process
during the subject period? What if the President does not make the appointment?
Verily, these consolidated petitions involve “uncertain contingent future events
that may not occur as anticipated, or indeed may not occur at all,” similar to the
_______________
thereof, bring an action in the appropriate Regional Trial Court to determine
any question of construction or validity arising, and for a declaration of his rights
or duties, thereunder.
20 Albay Electric Cooperative, Inc., Edgardo A. San Pablo, and Evan Calleja v.
Hon. Rafael P. Santelices, in his capacity as the Presiding Judge of the Regional
Trial Court of Legazpi City, Branch No. 2, and Mayon International Hotel, Inc.,
G.R. No. 132540, April 16, 2009, 585 SCRA 103.
785
VOL. 615, March 17, 2010 785
De Castro vs. Judicial and Bar Council (JBC)
recently decided Lozano v. Nograles,21 which this Court dismissed through the pen
of Chief Justice Puno. As no positive act has yet been committed by
respondents, the Court must not intervene.Again, to borrow the words of
Chief Justice Puno in Lozano, “judicial review is effective largely because it is not
available simply at the behest of a partisan faction, but is exercised only to remedy
a particular, concrete injury.”
Further, the Mendoza petition cannot be likened to the administrative matter
in In Re Appointments of Hon. Valenzuela & Hon. Vallarta,22 over which the Court
assumed jurisdiction. In that case, the President appointed judges within the
constitutional ban and transmitted the appointments to the Chief Justice. Clearly,
an actual controversy ripe for judicial determination existed in that case because
a positive act had been performed by the President in violation of the Constitution.
Here, as shown above, no positive act has been performed by either the JBC or the
President to warrant judicial intervention.
To repeat for emphasis, before this Court steps in to wield its awesome power
of deciding cases, there must first be an actual controversy ripe for judicial
adjudication. Here, the allegations in all the petitions are conjectural or
anticipatory. No actual controversy between real litigants exists.23 These
consolidated petitions, in other words, are a “purely academic exercise.” Hence,
any resolution that this Court might make would constitute an attempt at
abstraction that
_______________
21 Supra note 1.
22 358 Phil. 896; 298 SCRA 408 (1998).
23 See Confederation of Sugar Producers Association, Inc. v. Department of
Agrarian Reform, G.R. No. 169514, March 30, 2007, 519 SCRA 582, 620; Board of
Optometry v. Hon. Colet, 328 Phil. 1187, 1206 (1996); and Abbas v. Commission on
Elections, G.R. Nos. 89651 & 89965, November 10, 1989, 179 SCRA 287, 300.
786
786 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
can only lead to barren legal dialectics and sterile conclusions unrelated to
actualities.24
 Moreover, the function of the courts is to determine controversies between
litigants and not to give advisory opinions.25 Here, petitioners are asking this
Court to render an advisory opinion on what the JBC and the President should do.
To accede to it is tantamount to an incursion into the functions of the executive
department.26 This will further inappropriately make the Court an adviser of the
President. Chief Justice Enrique Fernando, in his concurring opinion in Director
of Prisons v. Ang Cho Kio,27specifically counseled against this undue portrayal by
the Court of the alien role of adviser to the President, thus—
“Moreover, I would assume that those of us entrusted with judicial
responsibility could not be unaware that we may be laying ourselves open to the
charge of presumptuousness. Considering that the exercise of judicial authority
does not embrace the alien role of a presidential adviser, an indictment of
officiousness may be hard to repel. It is indefinitely worse if the advice thus
gratuitously offered is ignored or disregarded. The loss of judicial prestige may be
incalculable. Thereafter, there may be less than full respect for court decisions. It
would impair the confidence in its ability to live up to its trust not only on the part
of immediate parties to the litigation but of the general public as well. Even if the
teaching of decided cases both here and in the Philippines is not as clear therefore,
there should be, to say the least, the utmost reluctance on the part of any court to
arrogate for itself such a prerogative, the exercise of which is fraught with
possibilities of such undesirable character.”
_______________
24 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 429; 292 SCRA 402,
416-417 (1998); Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
25 Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January
18, 2005, 449 SCRA 1, 10.
26 See Sec. Guingona, Jr. v. Court of Appeals, supra note 24.
27 33 Phil. 494, 510 (1970).
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The ponencia holds that “we need not await the occurrence of the vacancy by
May 17, 2010 in order to have the principal issue be ripe for judicial
determination.” That may very well be desirable. But still, there must be the
palpable presence of an actual controversy because, again, as discussed above, this
Court does not issue advisory opinions. The Court only adjudicates actual cases
that present definite and concrete controversies touching on the legal relations of
the parties having adverse legal interests.
The ponencia also sought refuge in the American cases of Buckley v.
Valeo28 and Regional Rail Reorganization Act Cases29 to support its position that
“the 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 it to intelligently
adjudicate the issues.” The cited American cases only considered the issue of
ripeness and did not confront the absence of an actual case or controversy. Further,
in Buckley, the members of the Commission were already appointed under the
statute being challenged as unconstitutional, and they were about to exercise
powers under the likewise challenged provisions of the statute. Thus, in those
cases, there was the inevitability of the operation of a challenged statute against
the appellants. No such situation exists in the cases before us.
Here, the factual and legal setting is entirely different. The JBC only started
the screening of the applicants. It has not yet transmitted a list to the President,
as, in fact, it still has to make the list. The President has not yet made an
appointment for there is yet no vacancy and no shortlist has yet been transmitted
to her. The constitutional provisions in question are not yet in operation; they may
not even be called into operation. It is not time for the Court to intervene.
_______________
28 424 US 1 (1976).
29 419 US 102 (1974).
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De Castro vs. Judicial and Bar Council (JBC)
A final note. If petitioners only want guidance from this Court, then, let it be
stated that enough guidance is already provided by the Constitution, the relevant
laws, and the prevailing jurisprudence on the matter. The Court must not be
unduly burdened with petitions raising abstract, hypothetical, or
contingent questions.As fittingly phrased by Chief Justice Puno in Lozano—
“Given the sparseness of our resources, the capacity of courts to render efficient
judicial service to our people is severely limited. For courts to indiscriminately
open their doors to all types of suits and suitors is for them to unduly overburden
their dockets, and ultimately render themselves ineffective dispensers of justice.
To be sure, this is an evil that clearly confronts our judiciary today.”30
With the above disquisition, I find no compelling need to discuss the other
issues raised in the consolidated petitions.
In light of the foregoing, I vote for the dismissal of the consolidated petitions.
SEPARATE OPINION
BRION, J.:
I AGREE with the conclusion that the President can appoint the Chief Justice
and Members of the Supreme Court two months before a presidential election up
to the end of the President’s term, but DISAGREE with the conclusion that the
authority to appoint extends to the whole Judiciary.
I. Prefatory Statement
The debate, in and out of this Court, on the issues these consolidated cases
pose, have been differently described to be at varying levels of severity and
intensity. What we in Court do know is the multiplicity of petitions and
interventions
_______________
 30 Supra note 1.
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filed, generating arguments of varying shades of validity. Sad but true, what we
need in considering all these submissions is simplification and focus on the critical
issues, not the mass of opinions that merely pile on top of one another. Based on
this standard, this Opinion shall endeavor to be brief, succinct but clear, and may
not be the academic treatise lay readers and even lawyers customarily expect from
the Court.
The constitutional provisions whose interpretation and application are
disputed (the disputed provisions) are Section 15, Article VII (the Article on the
Executive Department) and Sections 4(1) and 9 of Article VIII (on the Judicial
Department). Not often mentioned but critical to the consideration of the disputed
provisions is Section 8, Article VIII on the Judicial and Bar Council (JBC)—the
entity whose acts are under scrutiny in the dispute.
Section 15 of Article VII provides:
“Section 15. 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.”
On the other hand, the relevant Judicial Department provisions read:
“Section 4(1). The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. It may sit en banc or in its discretion, in division of
three, five, or seven Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.
xxx
Section 8. (1) A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court composed of the Chief Justice as ex
officio Chairman, the Secretary of Justice, and a representative of the Congress
as ex officio Members, a representative of the Integrated Bar, a professor of law, a
retired Member of the Supreme Court, and a representative of the private
sector.790
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De Castro vs. Judicial and Bar Council (JBC)
(2) The regular members of the Council shall be appointed by the President
for a term of four years with the consent of the Commission on Appointments. Of
the Members first appointed, the representative of the Integrated Bar shall serve
for four years, the professor of law for three years, the retired justice for two years,
and the representative of the private sector for one year.
(3) The Clerk of the Supreme Court shall be the Secretary ex officio of the
Council and shall keep a record of its proceedings.
(4) The regular members of the Council shall receive such emoluments as
may be determined by the Supreme Court. The Supreme Court shall provide in its
annual budget the appropriations of the Council.
(5) The Council shall have the principal functions of recommending
appointees to the Judiciary. It may exercise other functions and duties as the
Supreme Court may assign to it.
Section 9. The Members of the Supreme Court and the judges of the lower
courts shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such appointment
needs no confirmation.
For the lower courts, the President shall issue the appointment within ninety
days from the submission of the list.”
These provisions are quoted together to stress the role the JBC plays in the
appointment process, and that it is effectively an adjunctof the Supreme Court:
the JBC is under the supervision of the Court, but is fully independent in
undertaking its main function; the Chief Justice is the Chair, with the SC Clerk of
the Supreme Court as the Secretary; the emoluments of Council members are
determined by the Supreme Court with the Council budget a part of the Supreme
Court budget; and the Supreme Court may assign functions and duties to the
Council.
II. The Questions of Standing & Justiciability
I completely agree with the ponencia’s ruling on the parties’ standing,
their locus standi, to bring their petitions and interventions in their capacities as
citizens and lawyers who
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stand to be affected by our ruling as lawyers or by the impact of our ruling on the
nation and the all-important electoral exercise we shall hold in May 2010.
Jurisprudence is replete with precedents on the liberal appreciation of the locus
standi rule on issues that are of transcendental concern to the nation, 1 and the
petitioners very well qualify under these rulings. In this sense, locus standi is not
a critical issue in the present case. In fact, the concern voiced out during the
Court’s deliberations, was more on how participation can be limited to those who
have substantial contributions, through their submissions, to the resolution of the
grave issues before the Court.
While the rule on locus standi can be relaxed, the rule on the need for an actual
justiciable case that is ripe for adjudication addresses a different concern and
cannot be similarly treated. I disagree with the ponencia’s ruling on
justiciability as I believe some of the petitions before us do not reach the
required level of justiciability; others, however, qualify as discussed
below so that my disagreement with the lack of justiciability of some of
the petitions need not hinder the Court’s consideration of the main issue
at hand.
_______________
1 Roque v. Commission on Elections, G.R. No. 188456, September 10, 2009, 599
SCRA 69; Garcillano v. House of Representatives, G.R. No. 170388, December 23,
2008, 575 SCRA 170; David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409,
171485, 171483, 171400, 171489, 171424, May 3, 2006, 489 SCRA 160, 224; Agan
Jr. v. Philippine International Air Terminals Co., Inc., 450 Phil. 744; 803-804; 402
SCRA 612 (2003); Bayan v. Executive Secretary Zamora, 396 Phil. 623, 548-650;
342 SCRA 449 (2000); Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375,
May 5, 1994, 232 SCRA 110, 138; Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrariam Reform, G.R. Nos. 78742, 79310, 79744,
79777, July 14, 1989, 175 SCRA 343 365; and Araneta v. Dinglasan, 84 Phil. 368,
373 (1949).
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De Castro vs. Judicial and Bar Council (JBC)
The basic requisite before this Court can rule is the presence of an actual case
calling for the exercise of judicial power. This is a requirement that the
Constitution itself expressly imposes; in granting the Court judicial power and in
defining the grant, the Constitution expressly states that judicial power includes
the duty to settle actual controversies involving rights which are legally
demandable and enforceable.2 Thus, the Court does not issue advisory opinions,
nor do we pass upon hypothetical cases, feigned problems or friendly suits
collusively arranged between parties without real adverse interests. Courts cannot
adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging they may be. As a condition precedent to the exercise of
judicial power, an actual controversy between litigants must first exist.3
An actual case or controversy exists when a case involves a clash of legal rights
or an assertion of opposite legal claims that the courts can resolve through the
application of law and jurisprudence. The case cannot be abstract or hypothetical
as it must be a concrete dispute touching on the legal relations of parties having
adverse legal interests. A justiciable controversy admits of specific relief through
a decree that is conclusive in character, whereas an opinion only advises what the
law would be upon a hypothetical state of facts. An actual case is ripe for
adjudication when the act being challenged has a direct adverse effect on the
individual challenging it.4
In the justiciable cases this Court has passed upon, particularly in cases
involving constitutional issues, we have held that the Court also has the duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or
rules. The Court carries the symbolic function of educating
_______________
2 Section 1, par. 2, Article VIII, CONSTITUTION.
3 See: Guingona, Jr., v. Court of Appeals, 354 Phil. 426; 292 SCRA 402 (1998);
see also: Director of Prisons v. Ang Cho Kio, 33 Phil. 494 (1970).
4 Id.
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De Castro vs. Judicial and Bar Council (JBC)
the bench and the bar on the extent of protection given by constitutional
guarantees.5
Separately from the above concept of claims involving demandable rights and
obligations (but no less real in the strict constitutional sense), is the authority of
the Supreme Court to rule on matters arising in the exercise of its power of
supervision.
Under Section 6 of Article VIII of the Constitution, the Supreme Court is
granted the power of administrative supervision over all courts and the personnel
thereof. Pursuant to this power, the Court issues administrative circulars and
memoranda to promote the efficient and effective administration of justice, and
holds judges and court personnel administratively accountable for lapses they may
commit.6 Through these circulars, memoranda and administrative matters and
cases, the Court likewise interprets laws relevant to its power of supervision. 7 The
Court likewise issues rules concerning, among others, the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, and the Integrated Bar.8
This aspect of the power of the Court—its power of supervision—is particularly
relevant in this case since the JBC was created “under the supervision of the
Supreme Court,” with the “principal function of recommending appointees to the
Judiciary.” In the same manner that the Court cannot dictate on the lower courts
on how they should decide cases except through the appeal and review process
provided by the Rules of Court, so also cannot the Court intervene in the JBC’s
_______________
5 Salonga v. Ernani Cruz Pano, et al., 219 Phil. 402, 429-430; 134 SCRA 438,
463 (1985).
6 See for example, In Re: List of Judges who failed to comply with
Administrative Circular No. 10-94, dated June 29, 1994, 439 Phil. 118; 390 SCRA
319 (2002).
7 CONSTITUTION, Article VIII, Section, 6.
8 Id., Article VIII, Section 5(5).
794
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De Castro vs. Judicial and Bar Council (JBC)
authority to discharge its principal function. In this sense, the JBC is fully
independent as shown by A.M. No. 03-11-16-SC or Resolution Strengthening The
Role and Capacity of the Judicial and Bar Council and Establishing the Offices
Therein. In both cases, however and unless otherwise defined by the Court (as in
A.M. No. 03-11-16-SC), the Court can supervise by ensuring the legality and
correctness of these entities’ exercise of their powers as to means and manner, and
interpreting for them the constitutional provisions, laws and regulations affecting
the means and manner of the exercise of their powers as the Supreme Court is the
final authority on the interpretation of these instruments. A prime example of the
exercise of the Court’s power of supervision is 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 (hereinafter referred to
as Valenzuela) where the Court nullified the oath of office taken by Judge
Valenzuela, while at the same time giving its interpretation of how the election
ban against appointment operates on the Judiciary, thereby setting the guidelines
on how Section 15, Article VII is to be read and interpreted. The Valenzuela case
shall be discussed more fully below.
a. The De Castro Petition
In his petition for certiorari and mandamus, Arturo De Castro (in G.R.
191002) seeks the review of the action of the JBC deferring the sending to the
incumbent President of the list of nominees for the position of Chief Justice, and
seeks as well to compel the JBC to send this list to the incumbent President when
the position of Chief Justice becomes vacant. He posits that the JBC’s decision to
defer action on the list is both a grave abuse of discretion and a refusal to perform
a February 25, 2010 which further states that “the next stage of the process will be
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De Castro vs. Judicial and Bar Council (JBC)
constitutionally-mandated duty that may be compelled by mandamus.9
On its face, this petition fails to present any justiciable controversy that can be
the subject of a ruling from this Court. As a petition for certiorari, it must first
show as a minimum requirement that the JBC is a tribunal, board or officer
exercising judicial or quasi-judicial functions and is acting outside its jurisdiction
or with grave abuse of discretion amounting to lack or excess of jurisdiction. 10 A
petition for mandamus, on the other hand, at the very least must show that a
tribunal, corporation, board or officer unlawfully neglects the performance of an
act which the law specifically enjoins as a duty.”11
The petition facially fails to characterize the JBC as a council exercising
judicial or quasi-judicial functions, and in fact states that the JBC does not have
any judicial function.12 It cannot so characterize the JBC because it really does not
exercise judicial or quasi-judicial functions. It is not involved in the determination
of rights and obligations based on the constitution, laws and regulations; it is an
administrative body under the supervision of the Supreme Court and was created
principally to nominate appointees to the Judiciary. 13 As such, it deals solely with
the screening of applicants who wish to have the privilege of applying for judicial
positions.
From the point of view of substance, the petition admits that the vacancy for
the position of Chief Justice will not occur until May 17, 2010, and alleges that the
JBC has resolved “to defer the decision to whom to send the list of 3 nominees,
whether to the incumbent President or to the next
_______________
9 De Castro petition, p. 5.
10 RULES OF COURT, Rule 65, Section 1.
11 RULES OF COURT, Rule 65, Section 3.
12 De Castro petition, par. 8, page 5.
13 See: Constitutional Provision on the JBC, pp. 4-5 of this opinion.
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De Castro vs. Judicial and Bar Council (JBC)
President following the May 11, 2010 national elections in view of Section 15,
Article VII of the Constitution that bans appointments during the election
period,”14 citing various newspaper clippings and the judicial notice of this Court.15
As suggested, we take judicial notice of the JBC action on the nomination
process for the position of Chief Justice, as circulated in the media and as
evidenced by official JBC records, and we note that the JBC has taken preliminary
steps but not conclusive action on the submission of a list of nominees for the
position of Chief Justice.16So far, the JBC has announced the forthcoming vacancy,
the opening of the position to applicants,17the announcement of nominees, and the
invitation for comments.18 These are confirmed in the JBC’s Comment dated
the public interview of the candidates, and the preparation of the shortlist of
candidates have yet to be undertaken…including the interview of the
constitutional experts as may be needed.”19 Thus, this Court is fully aware,
based on its official knowledge that the petition cites, of the extent of JBC
developments in the nomination process, and the petition cannot invoke our
judicial notice to validly allege that the JBC has deferred action on the matter. For
the petition to insist that a deferment has taken place is to mislead this Court on
a matter that is within its official knowledge.
_______________
14 De Castro petition, p. 3.
15 De Castro petition, p. 4.
16 Judicial notice is taken of the publications cited, as well as the records on
which these publications are based.
17 JBC Announcement dated January 20, 2010, part of the record on file with
the JBC and with the Court, and published in the Phil. Daily Inquirer on January
21, 2010.
18 JBC Announcement dated 11 February, 2010, part of the record on file with
the JBC and with the Court, and published in the Phil. Daily Inquirer on Feb. 13,
2010.
19 JBC Comment, dated Feb. 25, 2010, p. 6.
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Neither the Constitution nor the Rules of Procedure of the
JBC20 categorically states when a list of nominees for a vacant Supreme Court
position shall be submitted to the President, although the Constitution gives the
President 90 days within which to fill the vacancy.21 This presidential deadline
implies that the JBC should submit its list of nominees before, or at the latest, on
the day the vacancy materializes so as not to shorten the 90-day period given to
the President within which to act.
Given these timelines and the May 17, 2010 vacancy date—considered with
the allegations regarding the nature of the JBC’s functions and its actions that we
are asked to judicially notice—the De Castro petition filed on February 9, 2010
clearly does not present a justiciable case for the issuance of a writ of certiorari.
The petition cannot make an incorrect and misleading characterization of the JBC
action, citing our judicial notice as basis, and then proceed to claim that grave
abuse of discretion has been committed. The study of the question of submitting a
list to the President in the JBC’s step-by-step application and nomination process
is not a grave abuse of discretion simply because the petition calls it so for purposes
of securing a justiciable case for our consideration.22
Since the obligation to submit a list will not accrue until immediately before or
at the time the vacancy materializes (as the petition’s prayer in fact admits), no
duty can likewise be said to have as yet been neglected or violated to serve as basis
for the special civil action of mandamus. The JBC’s study of the applicable
constitutional issue, as part of the JBC’s nomination process, cannot be
“tantamount to a refusal to perform its constitutionally-mandated
duty.” Presently, what exists is a purely potential controversy that has not rip-
_______________
20 JBC-009, October 18, 2000.
21 CONSTITUTION, Article VIII, Section 4(1).
22 See: allegation of grave abuse, De Castro petition, p.5.
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ened into a concrete dispute where rights have been violated or can already be
asserted.
In these lights, the Court should dismiss the De Castro petition
outright. Similarly, the oppositions filed by way of intervening in and
anchored on the De Castro petition should similarly be dismissed.
b. The Peralta Petition.
John G. Peralta’s petition (G.R. 191149) is likewise
for certiorariand mandamus. Like De Castro’s, he failed to allege that the JBC
exercises judicial or quasi-judicial functions—a must in any petition
for certiorari. In fact the Peralta petition can be described as an imperfect carbon
copy of De Castro’s petition since it similarly asks for the “review of the JBC action
in deferring to transmit to the incumbent President the list of nominees for
appointment of a new Chief Justice, and to compel the JBC to send the same to the
incumbent President for appointment of a Chief Justice, when the position
becomes vacant upon the mandatory retirement of the Honorable Chief Justice
Reynato S. Puno.”
Peralta only differs from De Castro because it does not allege “deferment” on
the basis of media reports and judicial notice; instead, it attaches the January 18,
2010 resolution of the JBC as Annex “A” and cites this as a basis. An examination
of Annex “A,” however, shows that the JBC did not in fact resolve to defer the
submission of the list of nominees; the JBC merely stated that—“As to the time to
submit this shortlist to the proper appointing authority, in light of the Constitution,
existing laws and jurisprudence, the JBC welcomes and will consider all view on
the matter.” This is not a deferment, nor is it a refusal to perform a duty assigned
by law as the duty to submit a list of nominees will not mature until a vacancy has
or is about to occur.799
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For the same absence of a justiciable case, the Peralta petition
for certiorari and mandamus and all related interventions should be dismissed
outright.
c. The PHILCONSA Petition.
The petition of the Philippine Constitution Association (PHILCONSA, G.R.
191057) is for mandamus under Rule 65 of the Rules of Court.
It seeks to compel the JBC to include the names of Senior Justices Antonio
Carpio and Conchita Carpio-Morales, and Prosecutor Dennis Villa Ignacio, in the
list of nominees for the position of Chief Justice although these nominees have
manifested that they want their names submitted to the incoming, not to the
incumbent, President of the Philippines.
The petition also seeks various declarations by this Court, among them, that
Section 15, Article VIII should apply only to the Executive Department and not to
the Judiciary; and that the Decision of this Court in Valenzuela should be set aside
and overruled.
As basis, the petition alleges that the issues raised in the petition have
spawned “a frenzied inflammatory debate on the constitutional provisions” that
has “divided the bench and the bar and the general public as well.” It likewise
posits that due to the positions the nominees have taken, a “final authoritative
pronouncement” from this Court on the meaning and construction of Sections 4(1),
8(5) and 9, Article VIII . . . in relation with Section 15, Article VII, is necessary.
The petition grounds itself, too, on the needs of public interest and public service.
On the whole, the PHILCONSA petition merely asks for a declaration from
this Court of the meaning and interpretation of the constitutional provisions on
the appointment of the Chief Justice, the Members of the Court, and the Judiciary
in general during the election ban period.800
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De Castro vs. Judicial and Bar Council (JBC)
As we did with the De Castro petition and based on the same standards we
discussed above, we hold that the PHILCONSA petition presents no justiciable
controversy that can be the basis for its consideration as a petition
for mandamus and for its adjudication on the merits. On its face, the petition
defines no specific duty that the JBC should exercise and has neglected to exercise,
and presents no right that has been violated nor any basis to assert any legal
right.23 Like the De Castro petition, it only presents to the Court a potential
controversy that has not ripened.
Consequently, the Court should rule that the PHILCONSA petition should be
dismissed outright together with any intervention supporting or opposing this
petition.
d. The Mendoza Petition.
The Mendoza petition (A.M. 10-2-5-SC) is unique as even its docket case
number will show; it is presented as an administrative matter for the Court’s
consideration pursuant to its power of supervision over judges and over the
JBC,24 following the lead taken in the Valenzuela case (an A.M. case).
 The cited Valenzuela case is rooted in a situation not far different from the
present case; a vacancy in the Court25 had occurred and a difference of opinion
arose between the Executive and the Court on the application of Section 15, Article
VII, in relation with Section 4(1) and 9 of Article VIII, of the Constitution. An
exchange of letters took place between the Palace and the Court on their respective
positions. In the meanwhile, the President appointed two RTC judges (Valenzuela
and Vallarta) within the two-month period prior
_______________
23 Pursuant to Section 3, Rule 65 of the Rules of Court, a petition
for mandamusmust allege the unlawful neglect to perform an act which the law
specifically enjoins as resulting from an office.
24 CONSTITUTION, Article VIII, Section 8(1).
25 Upon the retirement of Associate Justice Ricardo J. Francisco.
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De Castro vs. Judicial and Bar Council (JBC)
to the election. The Palace forwarded the judges’ appointments to the Court, thus
confronting Chief Justice Narvasa with the question of whether—given the
election ban under Section 15, Article VII that prima facie applies—he should
transmit the appointment papers to the appointed judges so they could take their
oaths in accordance with existing practice. At that point, the Court decided to treat
the matter as an “administrative matter” that was ripe for adjudication.
An administrative matter that is entered in the Court’s docket is either an
administrative case (A.C.) or an administrative matter (A.M.) submitted to the
Court for its consideration and action pursuant to its power of supervision. An A.C.
involves disciplinary and other actions over members of the Bar, based on the
Court’s supervision over them arising from the Supreme Court’s authority to
promulgate rules relating to the admission to the practice of law and to the
Integrated Bar. Closely related to A.C. cases are the Bar Matter (B.M.) cases
particularly involving admission to the practice of law.26 An A.M. is a matter based
on the Supreme Court’s power of supervision: under Section 6, Article VIII, this
refers to the Court’s administrative supervision over all courts and the personnel
thereof; under Section 8, it refers to its supervision over the JBC.
In using an administrative matter as its medium, the Mendoza petition cites
as basis the effect of a complete election ban on judicial appointments (in view of
the already high level of vacancies and the backlog of cases) and submits this as
an administrative matter that the Court, in the exercise of its supervision over the
Judiciary, should act upon. At the same time, it cites the “public discourse and
controversy” now taking place because of the application of the election ban on the
appointment of the Chief Justice, citing in this regard the very same reasons
mentioned in Valenzuela about the need to resolve the issue and avoid the
recurrence of conflict between
_______________
26 CONSTITUTION, Article VIII, Section 5(5).
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the Executive and the Judiciary on the matters; and the need to “avoid any possible
polemics concerning the matter.”27 The petition mentions as well that the Court
addressed the election ban issue in Valenzuela as an A.M. case, and apparently
takes the lead from this decided A.M. matter.
An undeniable feature of the Mendoza petition, compared to Valenzuela, is its
lack of any clear and specific point where an actual actionable case arose (the
appointment of two RTC judges during the election ban period) calling for a
determination of how the Chief Justice and the Court should act. The Mendoza
petition, however, does not look up to the Court’s supervisory authority over lower
court personnel pursuant to Section 6 of Article VIII of the Constitution, in the
way the Court did in Valenzuela. Expressly, the Mendoza petition looks to
the Court’s supervisory authority over the JBC, an authority that the Court
in fact asserted in Valenzuela when, in the exercise of “its power of supervision over
the Judicial and Bar Council,” it “INSTRUCTED” the JBC “to defer all actions on
the matter of nominations to fill up the lone vacancy in the Supreme Court or any
other vacancy until further orders.”
From the time of Valenzuela up to the present, the governing law and the
relationships between the Court and the JBC have not changed; the supervisory
relationship still exists full strength. The JBC is now in fact waiting for the Court’s
action on how it regards the Valenzuela ruling—whether the Court will reiterate,
modify or completely abandon it. The JBC expressly admitted its dilemna in its
Comment when it said: “Since the Honorable Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these consolidated Petitions
and Administrative Matter.” Under these plain terms, the JBC recognizes that a
controversy exists on the issue of submitting a shortlist to the President and it will
not act except with guidance from this Court. This is a point
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27 Mendoza petition, pp. 5 and 6.
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no less critical, from the point of view of supervision, than the
appointment of the two judges during the election ban period
in Valenzuela.
That the JBC has taken this stance is not surprising given the two petitions
for prohibition filed by Jaime N. Soriano (G.R. No. 191032) and Atty. Amador Z.
Tolentino, Jr., (G.R. No. 191342) that, on their face, show a cause of action ripe
for adjudication.
d.1 The Soriano and Tolentino Petitions
Soriano seeks to bar the JBC from continuing the selection processes on the
ground that the Supreme Court, not the President, appoints the Chief Justice.
Tolentino, on the other hand, seeks the issuance of a writ of prohibition under Rule
65 of the 1997 Rules of Court, among others, to enjoin and restrain the JBC from
submitting a list of nominees for judiciary positions to the incumbent President,
on the ground that an existing election ban against appointments is in place under
Section 15, Article VII of the Constitution.
In the simplest terms, the JBC—by its own admission in its Comment and by
Soriano’s28 and Tolentino’s29 own admissions in their petitions—is now in the
process of preparing its submission of nominees for the vacancy to be created by
the retirement of the incumbent Chief Justice, and has already completed the
initial phases of this preparation. Soriano and Tolentino want to stop this process
and compel the JBC to immediately discontinue its activities, apparently on the
theory that nomination is part of the appointment process
While their cited grounds and the intrinsic merits of these grounds vary, the
Soriano and Tolentino petitions, on their faces, present actual justiciable
controversies that are ripe for adjudication. Section 15, Article VII of the
Constitution embodies a ban against appointments by the incumbent Presi-
_______________
28 Soriano petition, p. 4.
29 Tolentino petition, p. 2.
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dent two months before the election up to the end of her term. A ruling from this
Court (Valenzuela) is likewise in place confirming the validity of this ban against
the Judiciary, or at least against the appointment of lower court judges. A vacancy
in the position of Chief Justice will occur on May 17, 2010, within the period of the
ban, and the JBC is admittedly preparing the submission of its list of nominees for
the position of Chief Justice to the President. Under the terms of Section 15, Article
VII and the obtaining facts, a prima facie case exists supporting the petition for
violation of the election ban.
d.2. Supervision over the JBC.
That the JBC—now under a different membership—needs guidance on the
course of action it should take on the constitutional issues posed, can best be
understood when the realities behind the constitutional provisions are examined.
A first reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary
and it has no authority to interpret constitutional provisions, even those affecting
its principal function; the authority to undertake constitutional interpretation
belongs to the courts alone.
A second reality is that the disputed constitutional provisions do not stand
alone and cannot be read independently of one another; the Constitution and its
various provisions have to be read and interpreted as one seamless whole, 30 giving
sufficient emphasis to every aspect in accordance with the hierarchy of our
constitutional values. The disputed provisions should be read together and, as
reflections of the will of the people, should be given effect to the extent that they
should be reconciled.
_______________
30 Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 21,
1991, 194 SCRA 317, 330.
805
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The third reality, closely related to the second, is that in resolving the
coverage of the election ban vis-à-vis the appointment of the Chief Justice and the
Members of the Court, provisions of the Constitution other than the disputed
provisions must be taken into account. In considering when and how to act, the
JBC has to consider that:
1. The President has a term of six years which begins at noon of
June 30 following the election, which implies that the outgoing President
remains President up to that time. (Section 4, Article VII). The President
assumes office at the beginning of his or her term, with provision for the
situations where the President fails to qualify or is unavailable at the
beginning of his term (Section 7, Article VII).
2. The Senators and the Congressmen begin their respective terms
also at midday of June 30 (Sections 4 and 7, Article VI). The Congress
convenes on the 4th Monday of July for its regular session, but the
President may call a special session at any time. (Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the
election ban provision applies to the whole Judiciary, only decided the issue
with respect to lower court judges, specifically, those covered by Section 9,
Article VIII of the Constitution. Any reference to the filling up of vacancies
in the Supreme Court pursuant to Section 4(1), Article VIII
constitutes obiter dictum as this issue was not directly in issue and was not
ruled upon.
These provisions and interpretation of the Valenzuela ruling—when read
together with disputed provisions, related with one another, and considered with
the May 17, 2010 retirement of the current Chief Justice—bring into focus certain
unavoidable realities, as follows:
1. If the election ban would apply fully to the Supreme Court, the
incumbent President cannot appoint a
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Member of the Court beginning March 10, 2010, all the way up to June 30,
2010.
2. The retirement of the incumbent Chief Justice—May 17, 2010—
falls within the period of the election ban. (In an extreme example where the
retirement of a Member of the Court falls on or very close to the day the
election ban starts, the Office of the Solicitor General calculates in its
Comment that the whole 90 days given to the President to make appointment
would be covered by the election ban.)
 3. Beginning May 17, 2010, the Chief Justice position would be
vacant, giving rise to the question of whether an Acting Chief Justice can
act in his place. While this is essentially a Supreme Court concern, the
Chief Justice is the ex officio Chair of the JBC; hence it must be concerned
and be properly guided.
4. The appointment of the new Chief Justice has to be made within 90
days from the time the vacancy occurs, which translates to a deadline of
August 15, 2010.
5. The deadline for the appointment is fixed (as it is not reckoned from
the date of submission of the JBC list, as in the lower courts) which means
that the JBC ideally will have to make its list available at the start of the
90-day period so that its process will not eat up the 90-day period granted
the President.
6. After noon of June 30, 2010, the JBC representation from Congress
would be vacant; the current representatives’ mandates to act for their
principals extend only to the end of their present terms; thus, the JBC shall
be operating at that point at less than its full membership.
7. Congress will not convene until the 4th Monday of July, 2010, but
would still need to organize before the two Houses of Congress can send
their representatives to the JBC—a process may extend well into August
2010.807
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8. In July 2010, one regular member of the JBC would vacate his post.
Filling up this vacancy requires a presidential appointment and the
concurrence of the Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is
that “a President or Acting President shall not make appointments.” This
prohibition is expressly addressed to the President and covers the act of
appointment; the prohibition is not against the JBC in the performance of
its function of “recommending appointees to the Judiciary”—an act that is
one step away from the act of making appointments.
d.3. Conclusion on the Mendoza Petition
Given the justiciable Soriano and Tolentino petitions that directly address the
JBC and its activities, the impact of the above-outlined realities on the grant of a
writ of prohibition, and the undeniable supervision that the Supreme Court
exercises over the JBC as well as its role as the interpreter of the Constitution—
sufficiently compelling reason exists to recognize the Mendoza petition
as a properly filed A.M. petition that should fully be heard in these
proceedings to fully ventilate the supervisory aspect of the Court’s
relationship with the JBC and to reflect, once again, how this Court views
the issues first considered in Valenzuela. The Court’s supervision over the
JBC, the latter’s need for guidance, and the existence of an actual controversy that
Soriano and Tolentino cite, save the Mendoza petition from being one for
declaratory relief, which petition is originally cognizable by the Regional Trial
Court, not by this Court.31
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31 Under Section 1, Rule 63 of the Rules of Court, a petition for declaratory
relief is available only before breach or violation of the deed or instrument whose
terms are sought to be clarified.
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To summarize the preliminary considerations of locus standi and
justiciability and the outstanding issues for resolution, the main issue in
these consolidated cases continues to be whether Section 15, Article VII of the
Constitution limiting the authority of the President of the Philippines to exercise
her power of appointment shall prevail over the mandate, provided under Section
4(1) and 9, Article VIII, that appointments to the Supreme Court shall be within
90 days from the occurrence of the vacancy, and within 90 days from the JBC’s
submission of its list of nominees for the lower courts. A sub-issue is the continued
effectiveness and strength of the Valenzuela case as guide and precedent in
resolving the above issue. All these should be read in the context of the
petitions for prohibition and the Mendoza A.M. petition, as the De Castro
and the PHILCONSA petitions suffer from lack of justiciability and
prematurity.
III. The Merits of the Petitions
a. The Soriano Petition.
The Soriano petition presents a very novel interpretation of Section 9, Article
VIII in its position that the authority to appoint the Chief Justice is lodged in the
Court, not in the President.
The correctness of this reading of the law is contradicted by both history and
by the law itself.
History tells us that, without exception, the Chief Justice of the Supreme Court
has always been appointed by the head of the Executive Department. Thus, Chief
Justices Cayetano Arellano, Victorino Mapa, Manuel Araullo, Ramon Avancena,
Jose Abad Santos, Jose Yulo, Manuel Moran and all the Chief Justices after
Philippine independence were appointed by the Chief Executive. The only
difference in their respective appointments is the sovereignty under which they
were appointed.809
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The Chief Justices under the American regime were appointed by the
President of the United States; one Chief Justice each was appointed under the
Commonwealth and under the Japanese Military Administration; and thereafter
all the Chief Justices were appointed by the Philippine President. In every case,
the appointing authority was the Chief Executive.
The use of the generic term “Members of the Supreme Court” under Section 9,
Article VIII in delineating the appointing authority under the 1987 Constitution,
is not new. This was the term used in the present line of Philippine Constitutions,
from 1935 to 1987, and the inclusion of the Chief Justice with the general term
“Member of the Court” has never been in doubt.32 In fact, Section 4(1) of the
present Constitution itself confirms that the Chief Justice is a Member of the Court
when it provides that the Court “may sit en banc or, in its discretion, in divisions
of three, five, or seven Members.” The Chief Justice is a Member of the En Banc and
of the First Division—in fact, he is the Chair of the En Banc and of the First
Division—but even as Chair is counted in the total membership of the En Banc or
the Division for all purposes, particularly of quorum. Thus, at the same time that
Section 4(1) speaks of a “Supreme Court. . . composed of one Chief Justice and
fourteen Associate Justices,” it likewise calls all of them Members in defining how
they will sit in the Court.
Thus, both by law and history, the Chief Justice has always been a Member of
the Court—although, as a primus inter pares—appointed by the President
together with every other Associate Justice. For this reason, we should dismiss the
Soriano petition for lack of merit.
b. The Tolentino and Mendoza Petitions;
the OSG and JBC Comments
This is only a Separate Opinion, not a ponencia, and rather than recite or
tabulate the various positions taken in these
_______________
32 See: Vargas v. Rilloraza, 80 Phil. 297, 342 (1948).
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De Castro vs. Judicial and Bar Council (JBC)
submissions, I shall instead discuss the issues based on topicallyarranged
subdivisions and introduce the various positions as arguments, for or against,
without always naming the source. This is solely for ease of presentation, clarity
and continuity rather than for any devious reason.
b.1. Does a conflict of provisions textually exist?
No need exists to further recite Section 15, Article VII, on the one hand, and
Sections 4(1) and 9, Article VIII, on the other, as they are already quoted at the
start of this Opinion. I do not believe any of the parties, though, will dispute that
a conflict exists even from the text of these provisions alone.
Section 15 on its face disallows any appointment in clear negative terms (shall
not make) without specifying the appointments covered by the prohibition. From
this literal reading springs the argument that no exception is provided (except the
exception found in Section 15 itself) so that even the Judiciary is covered by the
ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its
terms: any vacancy in the Court shall be filledwithin 90 days from its occurrence.
In the way of Section 15, Section 4(1) is also clear and categorical and provides no
exception; the appointment refers solely to the Members of the Supreme Court and
does not mention any period that would interrupt, hold or postpone the 90-day
requirement.
Section 9 may offer more flexibility in its application as the mandate for the
President is to issue appointments within 90 days from submission of the list,
without specifying when the submission should be made. From their wordings,
urgency leaps up from Section 4(1) while no such message emanates from Section
9; in the latter the JBC appears free to determine when a submission is to be made,
obligating the President to issue appointments within 90 days from the submission
of the JBC list. From this view, the appointment period under Section 9 is one that
is flexible and can move.811
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Thus, in terms of conflict, Sections 4(1) and Sections 15 can be said to be
directly in conflict with each other, while a conflict is much less evident from a
comparison of Sections 9 and 15. This conclusion answers the verba legis argument
of the Peralta petition that when the words or terms of a statute or provision is
clear and unambiguous, then no interpretation is necessary as the words or terms
shall be understood in their ordinary meaning. In this case, the individual
provisions, in themselves, are clear; the conflict surfaces when they operate in
tandem or against one another.
b.2. The Valenzuela Ruling.
The Valenzuela decision gives the full flavor of how the election ban issue arose
because of Chief Justice Narvasa’s very candid treatment of the facts and the
issue. Valenzuela openly stated that at the root of the dispute was the then existing
vacancy in the Court and the difference of opinion on the matter between the
Executive and the Court on the application of Section 15, Article VII, in relation
with Section 4(1) and 9 of Article VIII, of the Constitution.
What appears very clear from the decision, however, is that the factual
situation the Court ruled upon, in the exercise of its supervision of court personnel,
was the appointment by the President of two RTC judges during the period of the
ban. It is clear from the decision, too, that no immediate appointment was ever
made to the Court for the replacement of retired Justice Ricardo Francisco as the
JBC failed to meet on the required nominations prior to the onset of the election
ban.
From this perspective, it appears clear to me that Valenzuelashould be read
and appreciated for what it is—a ruling made on the basis of the Court’s
supervision over judicial personnel that upholds the election ban as against the
appointment of lower court judges appointed pursuant to the period provided by
Section 9 of Article VIII. Thus, Valenzuela’s application to the filling up of a
vacancy in the
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Supreme Court is a mere obiter dictum as the Court is largely governed by Section
4(1) with respect to the period of appointment. The Section 4(1) period, of course
and as already mentioned above, has an impact uniquely its own that is different
from that created by the period provided for the lower court under Section 9.
I find it interesting that Peralta largely justifies his position that the JBC
should now be prohibited from proceeding with the nomination process based
on Valenzuela as the prevailing rule that should be followed under the principle
of stare decisis. Peralta apparently misappreciates the reach and real holding
of Valenzuela, as explained and clarified above. A ruling involving the
appointment of lower court judges under Section 9, Article VIII cannot simply be
bodily lifted and applied in toto to the appointment of Members of the Supreme
Court under Section 4(1) of the same Article.
Because of his misappreciation, Peralta is likewise mistaken in his appeal to
the principle of stare decisis. The stability of judgments is indeed a glue that the
Judiciary and the litigating public cannot do without if we are to have a working
and stable justice system. Because of this role, the principle is one that binds all
courts, including this Court, and the litigating public. The principle, however, is
not open-ended and contains its own self-limitations; it applies only to actions in
all future similar cases and to none other. Where ample room for distinction exists,
as in this case, then stare decisis does not apply.
Another aspect of stare decisis that must be appreciated is that Supreme Court
rulings are not written in stone so that they will remain unerased and applicable
for all times. The Supreme Court’s review of rulings and their binding effects is a
continuing one so that a ruling in one era may be declared by the Court at some
future time to be no longer true and should thus be abandoned and changed. The
best and most unforgettable example of this kind of change happened in the United
States when the US Supreme Court overturned the
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De Castro vs. Judicial and Bar Council (JBC)
ruling in Plessy v. Fergusson33 that upheld the constitutionality of racial
segregation under the “separate but equal” doctrine. After half a century, the US
Court completely abandoned this ruling in the now famous Brown v. Board of
Education when it ruled that “separate but equal” doctrine is inherently unequal
in the context of public education.34 I mention this, if only as a reminder to one and
all, that the terms of the Valenzuela ruling, if truly applicable even to
appointments to this Court, is not written in stone and remains open for review by
this Court.
Valenzuela rests on the reasoning that the evil that Section 15 seeks to
remedy—vote buying, midnight appointments and partisan reasons to influence
the results of the election—is so pervasive so that the Section 15 ban should prevail
over everything else. The Court, however, forgot in some statements in this case
that hand in hand with Section 15 is Section 4(1) where the framers also
recognized, in clear and absolute terms, that a vacancy in the Court should be filled
up because of the importance of having a Supreme Court with its full and complete
membership. Completeness has a heightened meaning when the missing Member
is the head of the Judiciary and the Court in the person of the Chief Justice.
The separate realities that Section 15, Article VII and Section 4(1) bring to the
fore now confront us with the question of prioritizing our constitutional values in
terms of two provisions that effectively operate in their separate spheres, but
which conflict when they directly confront one another. The direct question is:
should we really implement Section 15 above everything else, even at the expense
of having an incomplete Supreme Court, or should we recognize that both
provisions should be allowed to operate within their own separate spheres with
one provision being an exception to the
_______________
33 163 U.S. 537 (1896).
34 347 U.S. 483 (1954).
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other, instead of saying that one provision should absolutely prevail over the other?
What Valenzuela failed to consider, because it was looking at the disputed
provisions from the prism of two RTC judges, is that the reasons for the application
of Section 15, Article VII may not at all exist in appointments to the Supreme
Court.
In the first place, Section 4(1) covers only the appointment of 15 Members, not
in their totality, but singly and individually as Members disappear from the Court
and are replaced. Thus, the evil that the Aytona case35 sought to remove—mass
midnight appointments—will not be present.
Secondly, partisanship is hardly a reason that would apply to the Supreme
Court except when the Members of the Court individually act in violation of their
oaths or directly transgress our graft and corruption laws. Let it be remembered
that the Constitution itself has entrusted to the Court the final and definitive
recourse in election contest involving the President, the Vice President and
Members of Congress. Because of this reposed trust on the Supreme Court as a
body, reasons of partisanship can hardly be a reason to systemically place the
whole Supreme Court under a ban on appointments during the election period.
Of course, partisanship is an objection that can apply to individual Members
of the Court and even to the applicants for the position of Chief Justice. But this is
a different question that should not result in placing the system of appointments
to the Court within the coverage of the election ban; objections personal to
individual Members and to individual applicants are matters addressed to the
JBC and to the final appointing authority—the President. It is for reasons of these
possible individual objections that the JBC and even the Office of the President
are open to comments and objections.
_______________
35 Aytona v. Castillo, No. L-19313, January 19, 1962, 4 SCRA 1.
815
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Incidentally, the incumbent President is not up for re-election by operation of
the Constitution so that a partisanship objection in the President’s favor has no
basis. If any, an objection personal to the Supreme Court applicant may be raised
because of perceived bias or partisanship in favor of the President’s choice in the
elections. This would be a meaningless objection, however, if it is considered that
the same objection can be raised against a Supreme Court nominee appointed by
the incoming President; this new appointee will sit in judgment in the electoral
dispute that follows the presidential elections and can be chosen for bias towards
the new President and his party. In this sense, an objection on the basis of personal
bias is not at all an appropriate consideration when the issue is systemic in its
application—the application of the election ban on appointments to Supreme Court
appointments.
In any case, the comments made on this point in the petitions are conjectural
and speculative and can hardly be the bases for adjudication on the merits. If
records of the Court will matter, the duly proven facts on record about the
immediately past Chief Justices speak for themselves with respect to partisanship
in favor of the sitting President. It is a matter of public record that Chief Justices
Davide, Panganiban and Puno did not try to please their respective incumbent
Presidents, and instead ruled in the way that the law, jurisprudence and the
requirements of public interests dictated.
The Mendoza petition presents some very compelling reasons why the
Supreme Court, if not the whole Judiciary, should be exempt from the coverage of
the election ban that Section 15, Article VII imposes.
The Chief Justice is the head of the Judiciary in the same manner that the
President is the Chief Executive and the Senate President and the Speaker of the
House head the two Houses of Congress. The Constitution ensures, through clear
and precise provisions, that continuity will prevail in every branch by defining how
replacement and turnover of power
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shall take place. Thus, after every election to be held in May, a turn over of power
is mandated on the following 30th of June for all elective officials.
For the Supreme Court where continuity is by the appointment of a
replacement, the Constitution requires that the replacement Member of the Court,
including the Chief Justice, should be appointed within 90 days from the
occurrence of the vacancy. This is the sense of urgency that the Constitution
imparts and is far different from the appointment of the justices and judges of the
lower courts where the requirement is 90 days from the JBC’s submission of its
list. This constitutional arrangement is what the application of Section 15, Article
VII to the appointment of Members of the Supreme Court will displace.
The Peralta petition argues that the appointment of a Chief Justice is not all
that important because the law anyway provides for an Acting Chief Justice. While
this is arguably true, Peralta misunderstands the true worth of a duly appointed
Chief Justice. He forgets, too, that a Supreme Court without a Chief Justice in
place is not a whole Supreme Court; it will be a Court with only 14 members who
would act and vote on all critical matters before it.
The importance of the presence of one Member of the Court can and should
never be underestimated, particularly on issues that may gravely affect the nation.
Many a case has been won or lost on the basis of one vote. On an issue of the
constitutionality of a law, treaty or statute, a tie vote—which is possible in a 14
member court—means that the constitutionality is upheld. This was our lesson
in Isagani Cruz v. DENR Secretary.36
More than the vote, Court deliberation is the core of the decision-making
process and one voice less is not only a vote less but a contributed opinion, an
observation, or a cautionary
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36 400 Phil. 940; 347 SCRA 128 (2000).
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word less for the Court. One voice can be a big difference if the missing voice is
that of the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice, the
ascendancy in the Court of a permanent sitting Chief Justice cannot be equaled.
He is the first among equals—a primus inter pares—who sets the tone for the
Court and the Judiciary, and who is looked up to on all matters, whether
administrative or judicial. To the world outside the Judiciary, he is the
personification of the Court and the whole Judiciary. And this is not surprising
since, as Chief Justice, he not only chairs the Court en banc, but chairs as well the
Presidential Electoral Tribunal that sits in judgment over election disputes
affecting the President and the Vice-President. Outside of his immediate Court
duties, he sits as Chair of the Judicial and Bar Council, the Philippine Judicial
Academy and, by constitutional command, presides over the impeachment of the
President.37 To be sure, the Acting Chief Justice may be the ablest, but he is not
the Chief Justice without the mantle and permanent title of the Office, and even
his presence as Acting Chief Justice leaves the Court with one member less. Sadly,
this member is the Chief Justice; even with an Acting Chief Justice, the Judiciary
and the Court remain headless.
The intent of the framers of the Constitution to extend to the Court a fixed
period that will assure the nation that the Court’s membership shall immediately
be filled, is evidenced no less than by the Constitutional Commission’s own
deliberations where the following exchange took place:
Mr. De Castro: I understand that our justices now in the Supreme Court,
together with the Chief Justice, are only 11.
Mr. Concepcion: Yes.
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37 Constitution, Article XI, Section 2(6).
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Mr. De Castro: And the second sentence of this subsection reads: Any
vacancy shall be filled within ninety days from the occurrence
thereof.”
Mr. Concepcion: That is right.
Mr. De Castro: Is this a now a mandate to the executive to fill the
vacancy.
Mr. Concepcion: That is right. That is borne out of the fact that in the past
30 years, seldom has the Court had a complete complement.
This exchange, to my mind, removes any remaining doubt about the framers’
recognition of the need to always have a full Court.
b.3. Construction of the Disputed Provisions
 A notable aspect of the Valenzuela ruling in the context of constitutional
interpretation, is its conclusion that in a conflict between two provisions—one in
the Article on the Executive Department and the other an Article in the Judicial
Department—one of them should completely give way and the other should
prevail. This is a very unusual approach in interpretation, particularly if the
apparently conflicting provisions are from the Constitution—an instrument that
has painstakingly been deliberated upon by the best and the brightest minds in
the country. For, the rule in constitutional interpretation is that the constitution
must be appreciated and interpreted as one single instrument, with apparently
conflicting provisions reconciled and harmonized in a manner that will give all of
them full force and effect.38
Where, as in Valenzuela, the Chief Justice of the Supreme Court, no less,
appeared to have given up the benefit of an immediate appointment of Members
of the Supreme Court, then extremely compelling reasons must have driven the
_______________
38 See: Marcelino v. Cruz, No. L-42428, March 14, 1983, 121 SCRA 51.
819
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Court to its conclusion. I fully understood though the former Chief Justice’s
conclusion in this case when I realized that he was not effectively ruling on Section
4(1) of Article VIII, and was in fact ruling on a case involving lower court judges.
For indeed, the reasons the former Chief Justice cited in Valenzuela justify the
application of the Section 15, Article VII as against the rule on appointment of
lower court judges under Section 9, Article VIII. As I have shown above, Section 9
does not impose a hard and fast rule on the period to be observed, apparently
because the urgency of the appointment may not be as great as in the appointment
of Members of the Supreme Court. The period for appointment can move at the
discretion of the JBC, although the exercise of this discretion also carries its own
butt-in and implicit limits.
The former Chief Justice’s weightier reason arose from the Aytona decision
where mass appointments were recognized as an evil that could affect the integrity
of our elections. Because of the number of appointments that may currently be
involved if appointments to lower courts are allowed before the May 2010 election
(around 537 vacancies at a 24.5% vacancy rate at the first and second level courts
according to the figures of the Mendoza petition)39 and the power and influence
judges may exert over their local communities, an exemption from the election ban
may indeed bring about (or at least give the appearance of bringing about) the evils
that the framers of the Constitution and this Court itself sought to remedy under
Section 15, Article VII and the Aytona decision, respectively.
For this reason, I do not disagree with Valenzuela for its ruling on lower court
judges; Section 15, Article VII may indeed prevail over Section 9, Article VIII.
In contrast with this conclusion, an interpretation that Section 15, Article VII
will similarly prevail over Section 4(1), Article VIII is clearly misplaced. The
structure, arrangement
_______________
39 Mendoza petition, p. 3.
820
820 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
and intent of the Constitution and the public policy reasons behind them simply
speak against the interpretation that appointments of Members of the Court
should be subject to the election ban. These are all discussed above and need not
be repeated here.
Principles of constitutional interpretation, too, militate against an
interpretation that would give primacy to one branch of government over another
in the absence of very compelling reasons. Each branch of government is in place
for a particular reason and each one should be given every opportunity to operate
to its fullest capacity and potential, again unless very compelling reasons exist for
the primacy of one over the other. No such compelling reason so far exists or has
been cited.
Based on the values that the disputed provisions embody, what we need to
balance are the integrity of our electoral process and the protection needed to
achieve this goal, as against the Judiciary’s need for independence and strength
enforced through a Supreme Court that is at its full strength. To be sure, the nation
and our democracy need one as well as the other, for ultimately both contribute to
our overall national strength, resiliency, and stability. Thus, we must, to the extent
possible, give force and effect to both and avoid sacrificing one for the other.
To do this and to achieve the policy of insulating our constitutional process
from the evils of vote-buying, influence peddling and other practices that affect the
integrity of our elections, while at the same time recognizing the Judiciary’s and
the nation’s need to have a full Supreme Court immediately after a vacancy occurs,
Section 4(1) of Article VIII should be recognized as a narrow exception granted to
the Judiciary in recognition of its proven needs. This is a narrow exception as the
election ban of Section 15, Article VII, shall apply with full force and effect on the
appointment of lower court justices and judges.821
VOL. 615, March 17, 2010 821
De Castro vs. Judicial and Bar Council (JBC)
c. Guidelines for the Judicial and Bar Council
The resolution of the present dispute can only be complete if clear guidelines
are given to the JBC on how it shall conduct itself under the present circumstances
pursuant to this Court’s ruling. The Court should therefore direct the JBC to:
A. forthwith proceed with its normal processes for the submission of
the list of nominees for the vacancy to be created by the retirement of Chief
Justice Reynato S. Puno, to be submitted to the President on or before the
day before the retirement of the Chief Justice;
B. in the course of preparing its list of nominees, determine with
certainty the nominees’ readiness to accept the nomination as well as the
appointment they may receive from the President, deleting from the list the
nominees who will refuse to confirm their full readiness to accept without
 conditions either their nomination or their appointment, if they will be
appointed;
C. proceed with its normal processes for the preparation of the lists
for the vacancies for the lower courts, to be submitted to the Office of the
President as soon as the election ban on appointments is lifted; and
D. in all other matters not otherwise falling under the above, conduct
itself in accordance with this Decision.
In light of all the foregoing, I vote to:
1. Dismiss the De Castro and Peralta petitions and for not being
justiciability and for prematurity.
2. Dismiss the Soriano and the Tolentino petitions for lack of merit.
3. Dismiss all petitions and motions for interventions supporting or opposing
the above petitions.822
822 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
4. Grant the Mendoza petition and declare for the JBC’s guidance that:
a. Section 4(1), Article VIII is an exception to the coverage of Section
15, Article VII; appointments to the Supreme Court are not subject to the
election ban under Section 15, Article VII so that the JBC can submit its
list of nominees for the expected vacancy for the retirement of Chief Justice
Reynato S. Puno, on or before the vacancy occurs, for the President’s
consideration and action pursuant to Section 4(1), Article VIII;
b. Reiterate our ruling in In re: Valenzuela and Vallartathat no other
appointments of judges of the lower courts can be made within the election
ban period, pursuant to Section 15, Article VII.
CONCURRING OPINION
ABAD, J.:
Chief Justice Reynato S. Puno will retire on May 17, 2010. Article VIII, Section
91of the 1987 Constitution requires the President to choose his successor from at
least three nominees of the Judicial and Bar Council (JBC). On January 18, 2010
the JBC passed a unanimous resolution2 to start the process of filling up the
anticipated vacancy. Indeed, it invited applications and nominations for the
position through newspapers, later announced the names of candidates to it, and
finally received endorsements in favor of and oppositions against such candidates.
_______________
1 Article VIII, Sec. 9. The members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy. Such appointments
need no confirmation. For the lower courts, the President shall issue the
appointments within ninety days from the submission of the list.
2 http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf.
823
VOL. 615, March 17, 2010 823
De Castro vs. Judicial and Bar Council (JBC)
Ordinarily, the JBC would already be holding public interviews of
candidates to the office to be followed by a deliberation and the eventual
submission of a shortlist of nominees to the President. The Constitution provides
that any vacancy in the Supreme Court “shall be filled within ninety days” from
its occurrence.3 Since the position of Chief Justice will be vacant on May 17, 2010
when Chief Justice Puno shall have retired, the President has to fill up the vacancy
during the period May 17 to August 15, 2010.
But by some unforeseen happenstance, that vacancy (May 18) will occur during
the period of the midnight appointments ban (March 10 to June 30), a ban intended
to prevent an outgoing president from buying votes using such appointments or
robbing the incoming president of the opportunity to fill up important positions
with people he will be working with. Article VII, Section 15, of the Constitution
prohibits the outgoing President from making appointments “two months
immediately before the next presidential elections and up to the end of his term,”
except temporary appointments in the interest of public service or public
safety.4 The midnight appointments ban this year is in force from March 10 (two
months before the elections) to June 30 (the end of the incumbent President’s
term), a period of 112 days.
_______________
3 Article VIII, Section 4(1). 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.
4 Article VII, Sec. 15. 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.
824
824 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Issues to be addressed
Quite ably, the majority opinion already addressed the several issues raised by
the petitions and the oppositions to them. I join that opinion and would add a few
thoughts on what I believe to be the key issues in this case, namely:
1. Whether or not the case presents an actual controversy that is ripe for this
Court’s adjudication; and
2. Whether or not the Constitutional ban on midnight appointments applies
to the judiciary.
Discussion
One. Invoking the fundamental rule that judicial power is the duty of the
courts of justice to settle “actual controversies involving rights which are legally
demandable and enforceable,” the National Union of People’s Lawyers (NUPL)
claims that no actual controversy exists in this case as to warrant judicial
determination of the issue of whether or not the Constitutional ban on midnight
appointment applies to the judiciary since the JBC has not as yet prepared a final
list of its nominees to current vacancies in the courts. BAYAN, COURAGE,
KADAMAY, LFS, NUSTP, CEGP, SCMP, and BAYAN claim that what the
petitioners seek is a mere advisory opinion from the Court, something that it has
no power to give.
The Constitution provides that judicial power is the duty of the courts of justice
to settle actual controversies involving rights which are legally demandable and
enforceable.5 The court will not act on an action for damages for a slap on the
plaintiff’s face if the defendant is still to deliver that slap. The law must have
established a right which has in fact been violated.
Here, the Constitution imposes on the JBC the duty to recommend to the
President those whom he can appoint to the
_______________
5 Article VIII, Section 1, 1987 Constitution of the Philippines.
825
VOL. 615, March 17, 2010 825
De Castro vs. Judicial and Bar Council (JBC)
judiciary when a vacancy occurs.6 In the case of a vacancy in the Supreme Court,
it is implicit that the JBC must submit a list of at least three nominees to the
President on time to enable him to fulfill his duty to fill up the vacancy within 90
days after it occurs.7 Those who have an interest in the fulfillment of this duty has
the right to insist that it be done.
But the JBC appears reluctant or unwilling to perform its above duty in the
case of the forthcoming May 17, 2010 vacancy in the office of the Chief Justice. It
expressed a desire to determine, initially, from views submitted to it by others and,
later, from what the Court might provide it by way of guidance, whether it can
submit its list of nominees to the incumbent President during the ban on midnight
appointments that sets in on March 10. Indeed, the JBC said in its resolution of
January 18, 2010 that, while it would start the selection process, it was yet to
determine when and to whom to submit its shortlist of nominees. It saw an
apparent conflict between the provisions of Section 4(1) of Article VIII (the ban on
midnight appointments) and Section 15 of Article VII (the need to fill up the
vacancy within 90 days of its occurrence) of the 1987 Constitution.
Eventually, after taking some steps in the selection process, the JBC held the
process in abeyance, unable to decide as yet when and to whom it will submit its
list of nominees for the position that Chief Justice Puno will vacate on May 17,
2010. Under the circumstances, the controversy is already ripe for adjudication for,
assuming that the ban on midnight appointment does not apply to the judiciary as
the petitioners would have it, then the JBC’s suspension of its selection process
would constitute a violation of its duty under the Constitution to carry on with
such process until it is able to submit the desired list to the incumbent President.
If my subdivision neighbor begins constructing a shed in his yard and tells me
_______________
6 Id., Section 5.
7 Id., Section 9 in relation to Section 4(1).
826
826 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
that he has ordered 20 pigs to raise there, I will not wait till the pigs arrive and
defecate before I bring an action to abate a nuisance.
As mandated by the Constitution, the incumbent President should be able to
fill up the vacancy within 90 days of its occurrence. This presupposes that the
incumbent President should have the list on or before May 17, the day the vacancy
occurs, so she can comply with her duty under the Constitution to make the
appointment within the 90-day period provided by it. Of course, the circumstances
is such that the period for appointing the Chief Justice’s replacement will span the
tenure of the incumbent President (for 44 days) and her successor (for 46 days),
but it is the incumbent’s call whether to exercise the power or pass it on.
Again, assuming as correct petitioners’ view that the ban on midnight
appointments does not apply to the judiciary, the JBC’s suspension of its selection
process places it in default, given its above duty in regard to the submission of its
list of nominees to the President within a time constraint. Under the same
assumption, moreover, the petitioner citizens and members of the bar would have
a demandable right or interest in having the JBC proceed with its selection process
and submit its list of nominees in time for the incumbent President or her
successor to fill up the vacancy within the period required by the Constitution.
Alternatively, assuming that an actual controversy has not yet developed as to
warrant action on the petitions filed in this case, the Court has the authority, as
an incident of its power of supervision over the JBC,8 to see to it that the JBC
faithfully executes its duties as the Constitution requires of it.
In its Resolution of January 18, 2010, the JBC confesses uncertainty regarding
when and to whom to submit its list of nominees for the May 17, 2010 vacancy in
the office of Chief
_______________
8 Id., Section 8(1).
827
VOL. 615, March 17, 2010 827
De Castro vs. Judicial and Bar Council (JBC)
Justice in view of the apparently conflicting provisions of the Constitution.
Further, in its comment in this case, the JBC declared that it “will be guided by
[the Court’s] decision in these consolidated Petitions and Administrative Matter.”
Consequently, as an incident of its Constitutional duty to supervise the JBC, the
Court can, to insure JBC’s faithful compliance with the Constitution, resolve the
issue of whether or not the ban on midnight appointments applies to the judiciary.
Two. Citing “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,”9 the oppositors claim
that the ban on midnight appointments applies to the judiciary. After examining
the reasons for the two apparently conflicting provisions, the Court said that the
need to fill up vacancies in the judiciary within the period the Constitution
provides must yield to the ban on Presidential midnight appointments. The Court
explained this ruling:
Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President’s power of
appointment, it is this Court’s view that, as a general proposition, in case
of conflict, the former should yield to the latter. Surely, 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. But prohibited appointments are long-lasting and
permanent in their effects. They may, as earlier pointed out, in fact
influence the results of elections and, for that reason, their making is
considered an election offense.10
_______________
9 358 Phil. 896; 298 SCRA 408 (1998).
10 Id., at pp. 915-916; p. 426.
828
828 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
But the above assumes that the outgoing incumbent President can make
appointments in the judiciary during the period of the ban “to buy votes” and
commit “similar evils” like denying the incoming President the opportunity to
consider other appointees in the light of his new policies, a point former President
Diosdado Macapagal made in Aytona v. Castillo.11
The fact, however, is that while the President can freely choose to appoint any
person who meets the basic qualifications for a position in the Executive
Department, he does not have such freedom of choice when it comes to
appointments in the judiciary. In the latter case, the Constitution provides in
Section 9 of Article VIII that the President can choose his appointee only from a
JBC short list of its nominees.
Sec. 9. The Members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy. x
xx
This restriction on the President’s appointing power is not a small matter.
First. The JBC from whose list of nominees the President will make his
appointment is under the supervision of the Supreme Court itself. Indeed, it is
headed by the Chief Justice as its presiding officer. The JBC is not a subordinate
agency of the Executive Department; the President has neither control nor
supervision over it.
Second. The JBC makes its own vetting rules and procedures. The Constitution
of course provides for the qualifications of members of the judiciary 12 but this has
not prevented the JBC from establishing grounds for disqualifying candi-
_______________
11 4 SCRA 1, 8 (1962).
12 Section 7(1) and (3), Article VIII, 1987 Constitution of the Philippines.
829
VOL. 615, March 17, 2010 829
De Castro vs. Judicial and Bar Council (JBC)
dates, such as the pendency of administrative or criminal cases against them.
Third. The JBC announces any vacancy in the judiciary in newspapers of large
circulations. Secret recruitment and trading for votes in the coming elections is
out.
Fourth. Anyone who has the basic qualifications can apply for a vacancy or be
nominated to it. Thus, the opportunity to be recommended by the JBC for
appointment is open or otherwise unrestricted. Political connection is not a
consideration that the JBC entertains in short listing its nominees.
Fifth. The JBC invites the public to comment on or submit opposition to the
nomination of candidates to a vacancy. And it holds public hearings in which each
candidate is queried about his qualifications, affiliations, and other personal
circumstances.
Sixth. The names in the list submitted by the JBC to the President are not
negotiable. On July 24, 2009 the Executive Secretary returned to JBC its list of six
nominees for two vacancies in the Court, requesting additional names that the
incumbent President can choose from. Obviously, the President was unhappy with
the names on the list. But the JBC declined the request, the pertinent portion of
which reads:
“We wish to inform you that the six (6) nominees of the JBC were
chosen after a long and thorough selection process. Among others, their
public and private track record, experience and possession of the
required qualities of competence, integrity, probity and independence
were carefully studies and considered by the JBC. They are all highly
qualified for the two (2) vacancies in the Supreme Court and indeed, your
letter of July 26, 2009 does not assail and hence, concedes the
qualification of the six (6) nominees.
With due respect, the JBC cannot acquiesce to your request to expand
the short list of nominees submitted to your office. The decision whether
to include three or more than three name in the short list of the nominees
exclusively belongs to the JBC. It is one of the important innovations in
the
830
830 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
1987 Constitution designed to depoliticize appointments in the Judiciary
and promote its independence. This discretion given to the JBC is the
lynchpin of its autonomy and it cannot be compromised in the tiniest
degree without impairing the delicate check and balance in the
appointment of members of the Judiciary installed in our Constitution.
The JBC, voting unanimously, cannot therefore accede to your request in
light of the imperatives of the Constitution.”
 Thus, the incumbent President was forced to choose from the few names on the
list that she had.
In reality, a President’s choice of Chief Justice is in fact first a choice of the
JBC before it is that of the President. Easily there should at least be 20,000
lawyers who are 40 years of age and have 15 years of law practice of some kind
who could qualify for Chief Justice. Yet, the President can choose only from a list
of three, four, or five lawyers that the JBC draws up for him. Consequently, the
idea that the outgoing incumbent President can take advantage of her
appointment of a Chief Justice to buy votes in the coming elections is utterly
ridiculous. She has no control over the JBC’s actions.
Further, the idea that the incoming President should have the opportunity to
choose a Chief Justice who will support his policies does not also make sense. The
Supreme Court that the Chief Justice heads is not a support agency under the
President. One of the functions of the Supreme Court is to provide a Constitutional
check on abuses of the Executive Department.
The proposition that a Chief Justice will always be beholden to the President
who appoints him is a myth. Former President Estrada appointed Chief Justice
Hilario G. Davide, Jr. who presided over his impeachment and administered the
oath to the incumbent President at the heels of EDSA II while President Estrada
still sat in Malacañang. Chief Justices Artemio V. Panganiban and Reynato S.
Puno voted against positions taken by the administration of the incumbent
President who appointed them both to their position. These Chief
831
VOL. 615, March 17, 2010 831
De Castro vs. Judicial and Bar Council (JBC)
Justices like those before them were first choices of the JBC before they were those
of the Presidents concerned.
I thus reiterate my concurrence with the main decision.
Petitions for certiorari, prohibition and mandamus dismissed, while petition in
AM No. 10-2-5-SC granted.
Notes.—Not all “midnight” appointments are invalid—each appointment
must be judged on the basis of the nature, character, and merits of the individual
appointment and the circumstances surrounding the same. It is only when the
appointments were made en masse by the outgoing administration and shown to
have been made through hurried maneuvers and under circumstances departing
from good faith, morality, and propriety that the Supreme Court has struck down
“midnight” appointments. (Sales vs. Carreon, 515 SCRA 597 [2007])
The constitutional prohibition on so-called midnight appointments,
specifically, those made within two (2) months immediately prior to the next
presidential elections, applies only to the President or Acting President. (Quirog
vs. Aumentado, 570 SCRA 582 [2008])
Appointments are banned prior to the elections to ensure that partisan
loyalties will not be a factor in the appointment process, and to prevent incumbents
from gaining any undue advantage during the elections. (Nazareno vs. City of
Dumaguete, 602 SCRA 578 [2009])
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
G.R. No. 191002. April 20, 2010.*
ARTURO M. DE CASTRO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC)
and PRESIDENT GLORIA MACAPAGAL-ARROYO, respondents.
G.R. No. 191032. April 20, 2010.*
JAIME N. SORIANO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC),
respondent.
G.R. No. 191057. April 20, 2010.*
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, vs.
JUDICIAL AND BAR COUNCIL (JBC), respondent.
A.M. No. 10-2-5-SC. April 20, 2010.*
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P.
MENDOZA, petitioner,
G.R. No. 191149. April 20, 2010.*
JOHN G. PERALTA, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC),
respondent.
PETER IRVING CORVERA;
CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLE’S LAWYERS;
MARLOU B. UBANO;
_______________
* EN BANC.
640
640 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON,
and the latter in his own personal capacity as a MEMBER of the PHILIPPINE
BAR;
MITCHELL JOHN L. BOISER;
BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN
NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY
LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE
EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES
(SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL
LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA
QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA
GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN
STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO
Q. PIMENTEL, JR.; Intervenors.
641
VOL. 618, APRIL 20, 2010 641
De Castro vs. Judicial and Bar Council (JBC)
G.R. No. 191342. April 20, 2010.*
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and
ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas), petitioners, vs.
JUDICIAL AND BAR COUNCIL (JBC), respondent.
G.R. No. 191420. April 20, 2010.*
PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. JUDICIAL AND BAR
COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO,
respondents.
Civil Procedure; Judgments; Stare Decisis; Words and Phrases; Stare decisis
means that a principle underlying the decision in one case is deemed of imperative
authority, controlling the decisions of like cases in the same court and in lower
courts within the same jurisdiction, unless and until the decision in question is
reversed or overruled by a court of competent authority.—Stare decisis derives its
name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to
precedent and not to unsettle things that are settled. It simply means that a
principle underlying the decision in one case is deemed of imperative authority,
controlling the decisions of like cases in the same court and in lower courts within
the same jurisdiction, unless and until the decision in question is reversed or
overruled by a court of competent authority. The decisions relied upon as
precedents are commonly those of appellate courts, because the decisions of the
trial courts may be appealed to higher courts and for that reason are probably not
the best evidence of the rules of law laid down.
Same; Same; Same; The Court, as the highest court of the land, may be guided
but is not controlled by precedent; The adherence to precedents is strict and rigid in
a common-law setting like the United Kingdom, where judges make law as binding
as an Act of Parliament—but ours is not a common-law system; hence, judicial
precedents are not always strictly and rigidly followed.—The Court, as the highest
court of the land, may be guided but is not controlled by precedent. Thus, the Court,
especially with a new membership, is not obliged to follow blindly a particular
decision that it determines, after re-examination, to call for a rectification. The
adherence to
642
642 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
precedents is strict and rigid in a common-law setting like the United
Kingdom, where judges make law as binding as an Act of Parliament. But ours is
not a common-law system; hence, judicial precedents are not always strictly and
rigidly followed. A judicial pronouncement in an earlier decision may be followed
as a precedent in a subsequent case only when its reasoning and justification are
relevant, and the court in the latter case accepts such reasoning and justification
to be applicable to the case. The application of the precedent is for the sake of
convenience and stability.
CARPIO-MORALES, J., Dissenting Opinion:
Civil Procedure; Judgments; Stare Decisis; View that in reversing Valenzuela,
the Decision held that the Valenzuela dictum did not firmly rest on Concom
deliberation, yet it did not offer to cite a material Concom deliberation—it instead
opted to rely on the memory of Justice Florenz Regalado which incidentally
mentioned only the “Court of Appeals.”—In reversing Valenzuela, the Decision held
that the Valenzuela dictum did not firmly rest on ConCom deliberations, yet it did
not offer to cite a material ConCom deliberation. It instead opted to rely on
the memory of Justice Florenz Regalado which incidentally mentioned only the
“Court of Appeals.” The Decision’s conclusion must rest on the strength of its own
favorable Concom deliberation, none of which to date has been cited.
Constitutional Law; Presidency; Power to Appoint; Appointments; View that
because of the temporary nature of the circumstance causing the impossibility of
performance, the outgoing President is released from non-fulfillment of the
obligation to appoint, and the duty devolved upon the new President.—In view of
the temporary nature of the circumstance causing the impossibility of
performance, the outgoing President is released from non-fulfillment of the
obligation to appoint, and the duty devolves upon the new President. The delay in
the fulfillment of the obligation becomes excusable, since the law cannot exact
compliance with what is impossible. The 90-day period within which to appoint a
member of the Court is thus suspended and the period could only start or resume
to run when the temporary obstacle disappears (i.e., after the period of the
appointments ban; when there is already a quorum in the JBC; or when there is
already at least three applicants).643
VOL. 618, APRIL 20, 2010 643
De Castro vs. Judicial and Bar Council (JBC)
Same; Same; Same; View that to require the Judicial and Bar Council (JBC)
to submit to the President a shortlist of nominees on or before the occurrence of
vacancy in the Supreme Court leads to preposterous results.—To require the JBC
to submit to the President a shortlist of nominees on or before the occurrence of
vacancy in the Court leads to preposterous results. It bears reiterating that the
requirement is absurd when, inter alia, the vacancy is occasioned by the death of
a member of the Court, in which case the JBC could never anticipate the death of
a Justice, and could never submit a list to the President on or before the occurrence
of vacancy.
BRION, J., Concurring and Dissenting Opinion:
Constitutional Law; Presidency; Power to Appoint; Appointments; View that
the election appointment ban under Article VII, Section 15 of the Constitution
should not apply to the appointment of Members of the Supreme Court whose period
for appointment is separately provided for under Article VIII, Section 4(1).—The
election appointment ban under Article VII, Section 15 of the Constitution should
not apply to the appointment of Members of the Supreme Court whose period for
appointment is separately provided for under Article VIII, Section 4(1).
 Same; Same; Same; Same; View that Valenzuela ruling is still good law; no
reason exists to touch the ruling as its main focus—the application of the election
ban on the appointment of lower court judges under Article VIII, Section 9 of the
Constitution—is not even an issue in the present case and was discussed only
because the petitions incorrectly cited the ruling as authority on the issue of the
Chief Justice’s appointment.—I diverged fully from the Decision on the question of
whether we should maintain or reverse our ruling in Valenzuela. I maintained that
it is still good law; no reason exists to touch the ruling as its main focus—the
application of the election ban on the appointment of lower court judges under
Article VIII, Section 9 of the Constitution—is not even an issue in the present case
and was discussed only because the petitions incorrectly cited the ruling as
authority on the issue of the Chief Justice’s appointment. The Decision proposed
to reverse Valenzuela but only secured the support of five (5) votes, while my
Separate Opinion in support of Valenzuela had four (4) votes. Thus, on the whole,
the Decision did not prevail in reversing Valenzuela, as it only had five (5) votes in
a field of 12
644
644 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
participating Members of the Court. Valenzuela should therefore remain, as
of the filing of this Opinion, as a valid precedent.
Same; Same; Same; Same; Judicial and Bar Council; View that the Supreme
Court cannot dictate on the Judicial and Bar Council (JBC) the results of its
assigned task, i.e., who to recommend or what standards to use to determine who
to recommend—it cannot even direct the JBC on how and when to do its duty, but
it can, under its power of supervision, direct the JBC to “take such action or step as
prescribed by law to make them perform their duties.”—The Court cannot dictate
on the JBC the results of its assigned task, i.e., who to recommend or what
standards to use to determine who to recommend. It cannot even direct the JBC
on how and when to do its duty, but it can, under its power of supervision, direct
the JBC to “take such action or step as prescribed by law to make them perform
their duties,” if the duties are not being performed because of JBC’s fault or
inaction, or because of extraneous factors affecting performance. Note in this
regard that, constitutionally, the Court can also assign the JBC other functions
and duties—a power that suggests authority beyond what is purely supervisory.
Same; Same; Same; Same; Same; View that the process of preparing and
submitting a list of nominees is an arduous and time-consuming task that cannot
be done overnight.—I hasten to add that the JBC’s constitutional task is not as
simple as some people think it to be. The process of preparing and submitting a
list of nominees is an arduous and time-consuming task that cannot be done
overnight. It is a six-step process lined with standards requiring the JBC to attract
the best available candidates, to examine and investigate them, to exhibit
transparency in all its actions while ensuring that these actions conform to
constitutional and statutory standards (such as the election ban on appointments),
to submit the required list of nominees on time, and to ensure as well that all these
acts are politically neutral.
Same; Same; Same; Same; Same; View that the Judicial and Bar Council
(JBC) list for the Supreme Court has to be submitted on or before the vacancy occurs
given the 90-day deadline that the appointing President is given in making the
appointment.—On the time element, the JBC list for the Supreme Court has to be
submitted on or before the vacancy occurs given the 90-day deadline that the
appointing President is given in making the appointment. The list
645
VOL. 618, APRIL 20, 2010 645
De Castro vs. Judicial and Bar Council (JBC)
will be submitted, not to the President as an outgoing President, nor
to the election winner as an incoming President, but to the President of the
Philippines whoever he or she may be. If the incumbent President does not act
on the JBC list within the time left in her term, the same list shall be available to
the new President for him to act upon. In all these, the Supreme Court bears the
burden of overseeing that the JBC’s duty is done, unerringly and with utmost
dispatch; the Court cannot undertake this supervision in a manner consistent with
the Constitution’s expectation from the JBC unless it adopts a pro-active stance
within the limits of its supervisory authority.
Same; Same; Same; Same; Same; View that the ponencia’s ruling is out of
place in the present case, since at issue here is the appointment of the Chief Justice
during the period of the election ban, not the appointment of lower court judges that
Valenzuela resolved.—The ponencia’s ruling reversing Valenzuela, in my view, is
out of place in the present case, since at issue here is the appointment of the Chief
Justice during the period of the election ban, not the appointment of lower court
judges that Valenzuelaresolved. To be perfectly clear, the conflict in the
constitutional provisions is not confined to Article VII, Section 15 and Article VIII,
Section 4(1) with respect to the appointment of Members of the Supreme Court;
even before the Valenzuela ruling, the conflict already existed between Article VII,
Section 15 and Article VIII, Section 9—the provision on the appointment of the
justices and judges of courts lower than the Supreme Court. After this Court’s
ruling in Valenzuela, no amount of hairsplitting can result in the conclusion that
Article VII, Section 15 applied the election ban over the whole Judiciary, including
the Supreme Court, as the facts and the fallo of Valenzuela plainly spoke of the
objectionable appointment of two Regional Trial Court judges. To
reiterate, Valenzuela only resolved the conflict between Article VII, Section 15 and
appointments to the Judiciary under Article VIII, Section 9.
MOTIONS FOR RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
Saklolo A. Leaño, Rita Linda V. Jimeno and Rico A. Limpengco for petitioner
in G.R. No. 191420.646
646 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Estelito P. Mendoza for petitioner in A.M. No. 10-2-5-SC.
Amador Z. Tolentino, Jr. and Roland B. Inting for petitioner in G.R. No.
191342.
Arturo M. De Castro for and on his own behalf in G.R. No. 191002.
Jaime N. Soriano for himself in G.R. No. 191032.
Manuel M. Lazaro, et al. for petitioner in G.R. No. 191057.
Benjamin P. Lozada III, et al. for movant-intervenor Atty. Marlon B. Urbano.
Pitero M. Reig for oppositor-in-intervention Board of the Integrated Bar of the
Philippines-Pasay, Parañaque, Las Piñas and Muntinlupa Chapters.
 Edre U. Olalia, et al. for oppositor-intervenor.
Al A. Parreño for movant oppositors-in-intervention.
Ibarra M. Gutierrez for oppositor-intervenors Walden F. Bello and Loreta Ann
P. Rosales.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
“WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002
and G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being
premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the
Judicial and Bar Council:647
VOL. 618, APRIL 20, 2010 647
De Castro vs. Judicial and Bar Council (JBC)
(a) To resume its proceedings for the nomination of candidates to fill
the vacancy to be created by the compulsory retirement of Chief Justice
Reynato S. Puno by May 17, 2010;
(b) To prepare the short list of nominees for the position of Chief
Justice;
(c) To submit to the incumbent President the short list of nominees
for the position of Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to
fill other vacancies in the Judiciary and submit to the President the short
list of nominees corresponding thereto in accordance with this decision.
SO ORDERED.”
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and
Roland B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No.
191420), as well as intervenors Integrated Bar of the Philippines-Davao del Sur
(IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong
Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial
Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell
John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello, et al.), filed
their respective motions for reconsideration. Also filing a motion for
reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention
was allowed.
We summarize the arguments and submissions of the various motions for
reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the issue of whether
or not the power to designate the Chief Justice belonged to the Supreme
Court en banc.648
648 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
2. The Mendoza petition should have been dismissed, because it sought a
mere declaratory judgment and did not involve a justiciable controversy.
3. All Justices of the Court should participate in the next deliberations. The
mere fact that the Chief Justice sits as ex officio head of the JBC should not
prevail over the more compelling state interest for him to participate as a
Member of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an interpretation
that exempts judicial appointments from the express ban on midnight
appointments.
2. In excluding the Judiciary from the ban, the Court has made distinctions
and has created exemptions when none exists.
3. The ban on midnight appointments is placed in Article VII, not in Article
VIII, because it limits an executive, not a judicial, power.
4. Resort to the deliberations of the Constitutional Commission is
superfluous, and is powerless to vary the terms of the clear prohibition.
5. The Court has given too much credit to the position taken by Justice
Regalado. Thereby, the Court has raised the Constitution to the level of a
venerated text whose intent can only be divined by its framers as to be
outside the realm of understanding by the sovereign people that ratified it.
6. Valenzuela should not be reversed.
7. The petitioners, as taxpayers and lawyers, have the clear legal standing to
question the illegal composition of the JBC.
Philippine Bar Association
1. The Court’s strained interpretation of the Constitution violates the basic
principle that the Court should not formulate a rule of constitutional law
broader than what is required by the precise facts of the case.649
VOL. 618, APRIL 20, 2010 649
De Castro vs. Judicial and Bar Council (JBC)
2. Considering that Section 15, Article VII is clear and straightforward, the
only duty of the Court is to apply it. The provision expressly and clearly
provides a general limitation on the appointing power of the President in
prohibiting the appointment of any person to any position in the
Government without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the constitutional
safeguard against midnight appointments.
4. The Constitution has installed two constitutional safeguards:- the
prohibition against midnight appointments, and the creation of the JBC. It
is not within the authority of the Court to prefer one over the other, for the
Court’s duty is to apply the safeguards as they are, not as the Court likes
them to be.
5. The Court has erred in failing to apply the basic principles of statutory
construction in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter or section
headings, despite precedents on statutory construction holding that such
headings carried very little weight.
7. The Constitution has provided a general rule on midnight appointments,
and the only exception is that on temporary appointments to executive
positions.
 8. The Court has erred in directing the JBC to resume the proceedings for the
nomination of the candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Puno with a view to submitting the
list of nominees for Chief Justice to President Arroyo on or before May 17,
2010. The Constitution grants the Court only the power of supervision over
the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or
when to do it, especially in the absence of a real and justiciable case
assailing any specific action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion and has indulged
in speculations.650
650 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
10. The constitutional ban on appointments being already in effect, the
Court’s directing the JBC to comply with the decision constitutes a culpable
violation of the Constitution and the commission of an election offense.
11. The Court cannot reverse on the basis of a secondary authority a doctrine
unanimously formulated by the Court en banc.
12. The practice has been for the most senior Justice to act as Chief Justice
whenever the incumbent is indisposed. Thus, the appointment of the
652
successor Chief Justice is not urgently necessary.
13. The principal purpose for the ban on midnight appointments is to arrest
any attempt to prolong the outgoing President’s powers by means of
proxies. The attempt of the incumbent President to appoint the next Chief
Justice is undeniably intended to perpetuate her power beyond her term of
office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of the Constitution
applies to appointments to the Judiciary. Hence, no cogent reason exists to
warrant the reversal of the Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for presidential
appointments to the Constitutional Commissions and the JBC with the
consent of the Commission on Appointments. Its phrase “other officers
whose appointments are vested in him in this Constitution” is enough proof
that the limitation on the appointing power of the President extends to
appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16
of Article VII apply to all presidential appointments in the Executive and
Judicial Branches of the Government.
3. There is no evidence that the framers of the Constitution abhorred the idea
of an Acting Chief Justice in all cases.651
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De Castro vs. Judicial and Bar Council (JBC)
Lim
1. There is no justiciable controversy that warrants the Court’s exercise of
judicial review.
2. The election ban under Section 15, Article VII applies to appointments to
fill a vacancy in the Court and to other appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the safeguard under
Section 15 of Article VII against midnight appointments in the Judiciary.
Corvera
1. The Court’s exclusion of appointments to the Judiciary from the
Constitutional ban on midnight appointments is based on an interpretation
beyond the plain and unequivocal language of the Constitution.
2. The intent of the ban on midnight appointments is to cover appointments
in both the Executive and Judicial Departments. The application of the
principle of verba legis (ordinary meaning) would have obviated dwelling
on the organization and arrangement of the provisions of the Constitution.
If there is any ambiguity in Section 15, Article VII, the intent behind the
provision, which is to prevent political partisanship in all branches of the
Government, should have controlled.
3. A plain reading is preferred to a contorted and strained interpretation
based on compartmentalization and physical arrangement, especially
considering that the Constitution must be interpreted as a whole.
4. Resort to the deliberations or to the personal interpretation of the framers
of the Constitution should yield to the plain and unequivocal language of
the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a ruling that is
reasonable and in accord with the Constitution.652
SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because
the petition did not present a justiciable controversy. The issues it raised
were not yet ripe for adjudication, considering that the office of the Chief
Justice was not yet vacant and that the JBC itself has yet to decide whether
or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more important and
compelling than the opinion of Justice Regalado.
3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article
VIII, the Court has violated the principle of ut magis valeat quam
pereat(which mandates that the Constitution should be interpreted as a
whole, such that any conflicting provisions are to be harmonized as to fully
give effect to all). There is no conflict between the provisions; they
complement each other.
4. The form and structure of the Constitution’s titles, chapters, sections, and
draftsmanship carry little weight in statutory construction. The clear and
plain language of Section 15, Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or controversy. The
clash of legal rights and interests in the present case are merely
anticipated. Even if it is anticipated with certainty, no actual vacancy in
the position of the Chief Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a vacancy in the
Court and the Judiciary runs in conflict with long standing principles and
doctrines of statutory construction. The provision admits only one
exception, temporary appointments in the Executive Department. Thus,
the Court should not distinguish, because the law itself makes no
distinction.
 3. Valenzuela was erroneously reversed. The framers of the Constitution
clearly intended the ban on midnight appointments to cover the members
of the Judiciary. Hence,
653
VOL. 618, APRIL 20, 2010 653
De Castro vs. Judicial and Bar Council (JBC)
giving more weight to the opinion of Justice Regalado to reverse
the en banc decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII.
The 90-day mandate to fill any vacancy lasts until August 15, 2010, or a
month and a half after the end of the ban. The next President has roughly
the same time of 45 days as the incumbent President (i.e., 44 days) within
which to scrutinize and study the qualifications of the next Chief Justice.
Thus, the JBC has more than enough opportunity to examine the nominees
without haste and political uncertainty.
5. When the constitutional ban is in place, the 90-day period under Section
4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of nominees on or
before May 17, 2010. The directive to the JBC sanctions a culpable violation
of the Constitution and constitutes an election offense.
7. There is no pressing necessity for the appointment of a Chief Justice,
because the Court sits en banc, even when it acts as the sole judge of all
contests relative to the election, returns and qualifications of the President
and Vice-President. Fourteen other Members of the Court can validly
comprise the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list
of nominees for Chief Justice to the President on or before May 17, 2010,
and to continue its proceedings for the nomination of the candidates,
because it granted a relief not prayed for; imposed on the JBC a deadline
not provided by law or the Constitution; exercised control instead of mere
supervision over the JBC; and lacked sufficient votes to reverse Valenzuela.
2. In interpreting Section 15, Article VII, the Court has ignored the basic
principle of statutory construction to the effect that the literal meaning of
the law must be applied when it is clear and unambiguous; and that we
should not distinguish where the law does not distinguish.654
654 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
3. There is no urgency to appoint the next Chief Justice, considering that the
Judiciary Act of 1948 already provides that the power and duties of the
office devolve on the most senior Associate Justice in case of a vacancy in
the office of the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and unequivocal, needs
no interpretation
2. The Constitution must be construed in its entirety, not by resort to the
organization and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because Section 15, Article
VII and the pertinent records of the Constitutional Commission are clear
and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of nominees to
the President by May 17, 2010 at the latest, because no specific law requires
the JBC to submit the list of nominees even before the vacancy has
occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the ban on midnight
appointments is the temporary appointment to an executive position. The
limitation is in keeping with the clear intent of the framers of the
Constitution to place a restriction on the power of the outgoing Chief
Executive to make appointments.
2. To exempt the appointment of the next Chief Justice from the ban on
midnight appointments makes the appointee beholden to the outgoing
Chief Executive, and compromises the independence of the Chief Justice by
having the outgoing President be continually influential.
3. The Court’s reversal of Valenzuela without stating the sufficient reason
violates the principle of stare decisis.655
VOL. 618, APRIL 20, 2010 655
De Castro vs. Judicial and Bar Council (JBC)
Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of appointments
an outgoing President is prohibited from making within the prescribed
period. Plain textual reading and the records of the Constitutional
Commission support the view that the ban on midnight appointments
extends to judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The subordinate
subject to oversight must first act not in accord with prescribed rules before
the act can be redone to conform to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because
the petition did not present a justiciable controversy.
Pimentel
1. Any constitutional interpretative changes must be reasonable, rational,
and conformable to the general intent of the Constitution as a limitation to
the powers of Government and as a bastion for the protection of the rights
of the people. Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that protects the
citizenry from an ever expanding grant of authority to its representatives.
2. The decision expands the constitutional powers of the President in a
manner totally repugnant to republican constitutional democracy, and is
tantamount to a judicial amendment of the Constitution without proper
authority.
COMMENTS
The Office of the Solicitor General (OSG) and the JBC separately represent in
their respective comments, thus:
OSG
1. The JBC may be compelled to submit to the President a short list of its
nominees for the position of Chief Justice.656
656 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
2. The incumbent President has the power to appoint the next Chief Justice.
3. Section 15, Article V11 does no apply to the Judiciary.
4. The principles of constitutional construction favor the exemption of the
Judiciary from the ban on midnight appointments.
5. The Court has the duty to consider and resolve all issues raised by the
parties as well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for prematurity,
because the JBC has not yet decided at the time the petitions were filed
whether the incumbent President has the power to appoint the new Chief
Justice, and becausse the JBC, having yet to interview the candidates, has
not submitted a short list to the President.
2. The statement in the decision that there is a doubt on whether a JBC short
list is necessary for the President to appoint a Chief Justice should be
struck down as bereft of constitutional and legal basis. The statement
undermines the independence of the JB.
3. The JBC will abide by the final decision of the Court, but in accord with its
constitutional mandate and its implementing rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his
comment even if the OSG and the JBC were the only ones the Court has required
to do so. He states that the motions for reconsideration were directed at the
administrative matter he initiated and which the Court resolved. His comment
asserts:
1. The grounds of the motions for reconsideration were already resolved by
the decision and the separate opinion.
2. The administrative matter he brought invoked the Court’s power of
supervision over the JBC as provided by Section 8(1), Article VIII of the
Constitution, as distin-
657
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De Castro vs. Judicial and Bar Council (JBC)
guished from the Court’s adjudicatory power under Section 1, Article VIII. In the
former, the requisites for judicial review are not required, which was
why Valenzuela was docketed as an administrative matter. Considering that the
JBC itself has yet to take a position on when to submit the short list to the proper
appointing authority, it has effectively solicited the exercise by the Court of its
power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII
is to amend the Constitution.
4. The portions of the deliberations of the Constitutional Commission quoted
in the dissent of Justice Carpio Morales, as well as in some of the motions
for reconsideration do not refer to either Section 15, Article VII or Section
4(1), Article VIII, but to Section 13, Article VII (on nepotism).
RULING
We deny the motions for reconsideration for lack of merit, for all the matters
being thereby raised and argued, not being new, have all been resolved by the
decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the purpose of
clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis is
controlling, and accordingly insist that the Court has erred in disobeying or
abandoning Valenzuela.1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et non quieta
movere, i.e., to adhere to precedent and not to unsettle things that are settled. It
simply means that a
_______________
1 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, 298 SCRA 408.
658
658 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
principle underlying the decision in one case is deemed of imperative authority,
controlling the decisions of like cases in the same court and in lower courts within
the same jurisdiction, unless and until the decision in question is reversed or
overruled by a court of competent authority. The decisions relied upon as
precedents are commonly those of appellate courts, because the decisions of the
trial courts may be appealed to higher courts and for that reason are probably not
the best evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and, until
authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria that must control the actuations, not only of those called
upon to abide by them, but also of those duty-bound to enforce obedience to
them.3 In a hierarchical judicial system like ours, the decisions of the higher courts
bind the lower courts, but the courts of co-ordinate authority do not bind each
other. The one highest court does not bind itself, being invested with the innate
authority to rule according to its best lights.4
The Court, as the highest court of the land, may be guided but is not controlled
by precedent. Thus, the Court, especially with a new membership, is not obliged to
follow blindly a particular decision that it determines, after re-examination, to call
for a rectification.5The adherence to precedents is strict and rigid in a common-law
setting like the United Kingdom, where judges make law as binding as an Act of
_______________
2 Price & Bitner, Effective Legal Research, Little, Brown & Co., New York
(1962), § 9.7.
 3 Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29, 1966, 18 SCRA
247
4 E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth Edition, p. 127.
5 Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No. 118509, September
5, 1996, 261 SCRA 464.
659
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De Castro vs. Judicial and Bar Council (JBC)
Parliament.6 But ours is not a common-law system; hence, judicial precedents are
not always strictly and rigidly followed. A judicial pronouncement in an earlier
decision may be followed as a precedent in a subsequent case only when its
reasoning and justification are relevant, and the court in the latter case accepts
such reasoning and justification to be applicable to the case. The application of the
precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be disobeyed, or
abandoned, or reversed, and that its wisdom should guide, if not control, the Court
in this case is, therefore, devoid of rationality and foundation. They seem to
conveniently forget that the Constitution itself recognizes the innate authority of
the Court en banc to modify or reverse a
_______________
6 See Calabresi, A Common Law for the Age of Statutes, Harvard University
Press, p. 4 (1982) and endnote 12 of the page, which essentially recounts that the
strict application of the doctrine of stare decisis is true only in a common-law
jurisdiction like England (citing Wise, The Doctrine of Stare Decisis, 21 Wayne Law
Review, 1043, 1046-1047 (1975). Calabresi recalls that the English House of Lords
decided in 1898 (London Tramways Co. v. London County Council, A.C. 375) that
they could not alter precedents laid down by the House of Lords acting as the
supreme court in previous cases, but that such precedents could only be altered by
an Act of Parliament, for to do otherwise would mean that the courts would usurp
legislative function; he mentions that in 1966, Lord Chancellor Gardiner
announced in a Practice Statement a kind of general memorandum from the court
that while: “Their Lordships regard the use of precedent as an indispensable
foundation upon which to decide what is the law,” they “nevertheless recognize
that too rigid adherence to precedent may lead to injustice in a particular case and
also unduly restrict the proper development of the law. They propose, therefore, to
modify their present practice and, while treating former decisions of this House as
normally binding, to depart from a previous decision when it appears right to do
so.” (Calabresi cites Leach, Revisionism in the House of Lords: The Bastion of Rigid
Stare Decisis Falls, 80 Harvard Law Review, 797 (1967).
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660 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
doctrine or principle of law laid down in any decision rendered en banc or in
division.7
Second: Some intervenors are grossly misleading the public by their insistence
that the Constitutional Commission extended to the Judiciary the ban on
presidential appointments during the period stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted from the
records of the Constitutional Commission did not concern either Section 15, Article
VII or Section 4(1), Article VIII, but only Section 13, Article VII, a provision on
nepotism. The records of the Constitutional Commission show that Commissioner
Hilario G. Davide, Jr. had proposed to include judges and justices related to the
President within the fourth civil degree of consanguinity or affinity among the
persons whom the President might not appoint during his or her tenure. In the
end, however, Commissioner Davide, Jr. withdrew the proposal to include the
Judiciary in Section 13, Article VII “(t)o avoid any further complication,”8 such that
the final version of the second paragraph of Section 13, Article VII even completely
omits any reference to the Judiciary, to wit:
_______________
7 Section 4 (2), Article VIII, provides:
xxx
(3) Cases or matters heard by a division shall be decided or resolved with the
concurrence of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case, without
the concurrence of at least three of such Members. When the required number is
not obtained, the case shall be decided en banc; Provided, that no doctrine or
principle of law laid down by the court in a decision rendered en banc or
in division may be modified or reversed except by the court sitting en
banc.
8 Record of the 1986 Constitutional Commission, Vol. 2, July 31, 1986, RCC
No. 44. pp. 542-543.
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De Castro vs. Judicial and Bar Council (JBC)
“Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth civil
degree of the President shall not during his tenure be appointed as Members of the
Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries.”
Last: The movants take the majority to task for holding that Section 15, Article
VII does not apply to appointments in the Judiciary. They aver that the Court
either ignored or refused to apply many principles of statutory construction.
The movants gravely err in their posture, and are themselves apparently
contravening their avowed reliance on the principles of statutory construction.
For one, the movants, disregarding the absence from Section 15, Article VII of
the express extension of the ban on appointments to the Judiciary, insist that the
ban applied to the Judiciary under the principle of verba legis. That is self-
contradiction at its worst.
 Another instance is the movants’ unhesitating willingness to read into Section 10 State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.
4(1) and Section 9, both of Article VIII, the express applicability of the ban under 663
Section 15, Article VII during the period provided therein, despite the silence of VOL. 618, APRIL 20, 2010 663
said provisions thereon. Yet, construction cannot supply the omission, for doing so
would generally constitute an encroachment upon the field of the Constitutional De Castro vs. Judicial and Bar Council (JBC)
Commission. Rather, Section 4(1) and Section 9 should be left as they are, given outgoing President nor the present Members of the Court had arranged the current
that their meaning is clear and explicit, and no words can be interpolated in situation to happen and to evolve as it has. None of the Members of the Court could
them.9 Interpolation of words is unnecessary, because the law is more than likely have prevented the Members composing the Court when she assumed the
to fail to express the legislative intent with the interpolation. In other words, the Presidency about a decade ago from retiring during her prolonged term and tenure,
addition of new words may alter the thought intended to be conveyed. And, even for their retirements were mandatory. Yet, she is now left with an imperative duty
where the meaning of the law is clear under the Constitution to fill up the vacancies created by such inexorable
retirements within 90 days from their occurrence. Her official duty she must
_______________ comply with. So must we ours who are tasked by the Constitution to settle the
controversy.
9 Smith v. State, 66 Md. 215, 7 Atl. 49. ACCORDINGLY, the motions for reconsideration are denied with finality.
SO ORDERED.
662
De Castro, Abad, Villarama, Jr. and Perez, JJ., concur.
662 SUPREME COURT REPORTS ANNOTATED Puno (C.J.), No Part. Chairman of JBC.
De Castro vs. Judicial and Bar Council (JBC) Carpio, J., No Part, prior inhibition.
and sensible, either with or without the omitted word or words, interpolation is Corona, J., No Part.
improper, because the primary source of the legislative intent is in the language of Carpio-Morales, J., Please see my Dissenting Opinion.
the law itself.10 Velasco, Jr., J., I join the dissent of J. Nachura.
Thus, the decision of March 17, 2010 has fittingly observed: Nachura, J., I maintain my position that there is no justiciable controversy.
“Had the framers intended to extend the prohibition contained in Section 15, Brion, J., See: Concurring & Dissenting Opinion.
Article VII to the appointment of Members of the Supreme Court, they could have Peralta, J., I join Justice Brion’s Opinion.
explicitly done so. They could not have ignored the meticulous ordering of the Del Castillo, J., I join Justice Brion in his concurring and dissenting opinion.
provisions. They would have easily and surely written the prohibition Mendoza, J., I join Justice Brion in his Concurring & Dissenting Opinion.
made explicit in Section 15, Article VII as being equally applicable to the 664
appointment of Members of the Supreme Court in Article VIII itself, most 664 SUPREME COURT REPORTS ANNOTATED
likely in Section 4 (1), Article VIII. That such specification was not done
De Castro vs. Judicial and Bar Council (JBC)
only reveals that the prohibition against the President or Acting
President making appointments within two months before the next DISSENTING OPINION
presidential elections and up to the end of the President’s or Acting CARPIO-MORALES, J.:
President’s term does not refer to the Members of the Supreme Court.” No compelling reason exists for the Court to deny a reconsideration of the
We cannot permit the meaning of the Constitution to be stretched to any assailed Decision. The various motions for reconsideration raise hollering
unintended point in order to suit the purposes of any quarter. substantial arguments and legitimately nagging questions which the Court must
meet head on.
If this Court is to deserve or preserve its revered place not just in the hierarchy
FINAL WORD
but also in history, passion for reason demands the issuance of an extended and
extensive resolution that confronts the ramifications and repercussions of its
It has been insinuated as part of the polemics attendant to the controversy we assailed Decision. Only then can it offer an illumination that any self-respecting
are resolving that because all the Members of the present Court were appointed student of the law clamors and any adherent of the law deserves. Otherwise, it
by the incumbent President, a majority of them are now granting to her the takes the risk of reeking of an objectionable air of supreme judicial arrogance.
authority to appoint the successor of the retiring Chief Justice. It is thus imperative to settle the following issues and concerns:
The insinuation is misguided and utterly unfair. Whether the incumbent President is constitutionally proscribed from
The Members of the Court vote on the sole basis of their conscience and the appointing the successor of Chief
merits of the issues. Any claim to the contrary proceeds from malice and Justice Reynato S. Puno upon his
condescension. Neither the retirement on May 17, 2010 until the
ban ends at 12:00 noon of June 30,
_______________ 2010
 1. In interpreting the subject constitutional provisions, the reiterating that the requirement is absurd when, inter alia, the vacancy is
Decision disregarded established canons of statutory construction. Without occasioned by the death of a member of the Court, in which case the JBC could
explaining the inapplicability of each of the relevant rules, the Decision never anticipate the death of a Justice, and could never submit a list to the
immediately placed premium on the arrangement and ordering of provisions, one President on or before the occurrence of vacancy.
of the weakest tools of construction, to arrive at its conclusion. 3. The express allowance in the Constitution of a 90-day period of vacancy in
2. In reversing Valenzuela, the Decision held that the Valenzuela dictum did the membership of the Court rebuts any public policy argument on avoiding a
not firmly rest on ConCom deliberations, yet it did not offer to cite a material vacuum of even a single day without a duly appointed Chief Justice. Moreover, as
ConCom delibera- pointed out in my Dissenting Opinion, the practice of having an acting Chief
665 Justice in the interregnum is provided for by law, confirmed by tradition, and
VOL. 618, APRIL 20, 2010 665 settled by jurisprudence to be an internal matter.
The Resolution of the majority, in denying the present Motions for
De Castro vs. Judicial and Bar Council (JBC) Reconsideration, failed to rebut the foregoing crucial matters.
tion. It instead opted to rely on the memory of Justice Florenz Regalado which I, therefore, maintain my dissent and vote to GRANT the Motions for
incidentally mentioned only the “Court of Appeals.” The Decision’s conclusion must Reconsideration of the Decision of March 17, 2010 insofar as it holds that the
rest on the strength of its own favorable Concom deliberation, none of which to incumbent President is not constitutionally proscribed from appointing the
date has been cited. successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010
3. Instead of choosing which constitutional provision carves out an exception until the ban ends at 12:00 noon of June 30, 2010 and that the Judicial and Bar
from the other provision, the most legally feasible interpretation (in the limited Council is obliged to submit to the President the shortlist of nominees for the
cases of temporary physical or legal impossibility of compliance, as expounded in position of Chief Justice on or before May 17, 2010.667
my Dissenting Opinion) is to consider the appointments ban or other substantial
VOL. 618, APRIL 20, 2010 667
obstacle as a temporary impossibility which excuses or releases the constitutional
obligation of the Office of the President for the duration of the ban or obstacle. De Castro vs. Judicial and Bar Council (JBC)
In view of the temporary nature of the circumstance causing the impossibility CONCURRING AND DISSENTING OPINION
of performance, the outgoing President is released from non-fulfillment of the BRION, J.:
obligation to appoint, and the duty devolves upon the new President. The delay in The Motions for Reconsideration
the fulfillment of the obligation becomes excusable, since the law cannot exact After sifting through the motions for reconsideration, I found that the
compliance with what is impossible. The 90-day period within which to appoint a arguments are largely the same arguments that we have passed upon, in one form
member of the Court is thus suspended and the period could only start or resume or another, in the various petitions. Essentially, the issues boil down
to run when the temporary obstacle disappears (i.e., after the period of the to justiciability; the conflict of constitutional provisions; the merits of the
appointments ban; when there is already a quorum in the JBC; or when there is cited constitutional deliberations; and the status and effect of
already at least three applicants). the Valenzuela1 ruling. Even the motion for reconsideration of the Philippine
Whether the Judicial and Bar Coun- Bar Association (G.R. No. 191420), whose petition I did not expressly touch upon
cil is obliged to submit to the Presi- in my Separate Opinion, basically dwells on these issues.
dent the shortlist of nominees for I have addressed most, if not all, of these issues and I submit my Separate
the position of Chief Justice (or Jus- Opinion2 as my basic response to the motions for reconsideration, supplemented
tice of this Court) on or before the by the discussions below.
occurrence of the vacancy. As I reflected in my Separate Opinion (which three other Justices joined),3 the
1. The ruling in the Decision that obligates the JBC to submit the shortlist to election appointment ban under Article VII, Section 15 of the
the President on or before the occurrence of the vacancy in the Court runs counter Constitution should not apply to the appointment of Members of the
to the Concom deliberations which explain that the 90-day period is allotted Supreme Court whose period for appointment is separately pro-
666
666 SUPREME COURT REPORTS ANNOTATED _______________
De Castro vs. Judicial and Bar Council (JBC)
1 A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This A.M. involves
for both the nomination by the JBC and the appointment by the President. In the
the constitutional validity of the appointment of two (2) RTC Judges on March 30,
move to increase the period to 90 days, Commissioner Romulo stated that “[t]he 1998—a date that falls within the supposed ban under Section 15, Article VII of
sense of the Committee is that 60 days is awfully short and that the [Judicial and the Constitution. We nullified the appointments.
Bar] Council, as well as the President, may have difficulties with that.” 2 G.R. No. 191002 and companion cases, promulgated on March 17, 2010.
2. To require the JBC to submit to the President a shortlist of nominees on or
before the occurrence of vacancy in the Court leads to preposterous results. It bears
 3 Justices Diosdado M. Peralta, Mariano C. Del Castillo and Jose Catral
Mendoza.
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668 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
vided for under Article VIII, Section 4(1). I shared this conclusion with the
Court’s Decision although our reasons differed on some points.
I diverged fully from the Decision on the question of whether we should
maintain or reverse our ruling in Valenzuela. I maintained that it is still good law;
no reason exists to touch the ruling as its main focus—the application of the
election ban on the appointment of lower court judges under Article VIII, Section 9
of the Constitution—is not even an issue in the present case and was discussed
only because the petitions incorrectly cited the ruling as authority on the issue of
the Chief Justice’s appointment. The Decision proposed to reverse Valenzuela but
only secured the support of five (5) votes, while my Separate Opinion in support of
Valenzuela had four (4) votes. Thus, on the whole, the Decision did not prevail in
reversing Valenzuela, as it only had five (5) votes in a field of 12 participating
Members of the Court. Valenzuela should therefore remain, as of the filing of this
Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority in
denying the motions with respect to the Chief Justice issue, although we differ in
some respects on the reasons supporting the denial. I dissent from the conclusion
that the Valenzuela ruling should be reversed. My divergence from the majority’s
reasons and conclusions compels me to write this Concurring and Dissenting
Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate Opinion is our
approach on the basic requisites/justiciability issues. The Decision apparently
glossed over this aspect of the case, while I fully explained why the De Castro4 and
Peralta5 petitions should be dismissed outright. In my
_______________
4 G.R. No. 191002, Petition for Certiorari and Mandamus.
5 G.R. No. 191149, Petition for Certiorari and Mandamus.
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VOL. 618, APRIL 20, 2010 669
De Castro vs. Judicial and Bar Council (JBC)
view, these petitions violated the most basic requirements of their chosen medium
for review—a petition for certiorari and mandamus under Rule 65 of the Rules of
Court.
The petitions commonly failed to allege that the Judicial and Bar Council
(JBC) performs judicial or quasi-judicial functions, an allegation that the petitions
could not really make, since the JBC does not really undertake these functions
and, for this reason, cannot be the subject of a petition for certiorari; hence, the
petitions should be dismissed outright. They likewise failed to facially show any
failure or refusal by the JBC to undertake a constitutional duty to justify the
issuance of a writ of mandamus; they invoked judicial notice that we could not give
because there was, and is, no JBC refusal to act.6 Thus, the mandamus aspects of
these petitions should have also been dismissed outright. The ponencia,
unfortunately, failed to fully discuss these legal infirmities.
The motions for reconsideration lay major emphasis on the alleged lack of an
actual case or controversy that made the Chief Justice’s appointment a justiciable
issue. They claim that the Court cannot exercise the power of judicial review where
there is no clash of legal rights and interests or where this clash is merely
anticipated, although the anticipated event shall come with certainty.7
What the movants apparently forgot, focused as they were on their respective
petitions, is that the present case is not a single-petition case that rises or falls on
the strength of that single petition. The present case involves various petitions
_______________
6 The JBC reiterates its position in its Comment (dated April 12, 2010) on the
motions for reconsideration that it is still acting on the preparation of the list of
nominees and is set to interview the nominees.
7 See, for instance, the motion for reconsideration of intervenor Alfonso Tan,
Jr.
670
670 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
and interventions,8 not necessarily pulling towards the same direction, although
each one is focused on the issue of whether the election appointment ban under
Article VII, Section 15 of the Constitution should apply to the appointment of the
next Chief Justice of the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No.
191342), Soriano (G.R. No. 191032) and Mendoza (A.M. No. 10-2-5-SC). The first
two are petitions for prohibition under Section 2 of Rule 65 of the Rules of
Court.9 While they commonly share this medium of review, they differ in their
supporting reasons. The Mendoza petition, on the other hand, is totally different—
it is a petition presented as an administrative matter (A.M.) in the manner that
the Valenzuela case was an A.M. case. As I pointed out in the Separate Opinion,
the Court uses the A.M. docket designation on matters relating to its exercise of
supervision over all courts and their personnel.10 I failed to note then, but I make
of record now, that court rules and regulations—the outputs in the Court’s
rulemaking function—are also docketed as A.M. cases.
That an actual case or controversy involving a clash of rights and interests
exists is immediately and patently obvious in the Tolentino and Soriano petitions.
At the time the petitions were filed, the JBC had started its six-phase nomination
process that would culminate in the submission of a list of nominees to the
President of the Philippines for appointive action. Tolentino and Soriano—lawyers
and citizens with interest in the strict observance of the election ban—sought to
prohibit the JBC from continuing with this process.
_______________
8 The docketed petitions were seven; the petitions-in-intervention were ten.
 9 A prohibition petition seeks to stop the proceedings of a tribunal,
corporation, board, officer or person exercising judicial, quasi-judicial or
ministerial functions if any of its act is without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction.
10 Separate Opinion, p. 16.
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De Castro vs. Judicial and Bar Council (JBC)
The JBC had started to act, without any prodding from the Court, because of its
duty to start the nomination process but was hampered by the petitions filed and
the legal questions raised that only the Supreme Court can settle with
finality.11 Thus, a clash of interests based on law existed between the petitioners
and the JBC. To state the obvious, a decision in favor of Tolentino or
Soriano would result in a writ of prohibition that would direct the JBC
not to proceed with the nomination process.
The Mendoza petition cited the effect of a complete election ban on judicial
appointments (in view of the already high level of vacancies and the backlog of
cases) as basis, and submitted the question as an administrative matter that the
Court, in the exercise of its supervisory authority over the Judiciary and the JBC
itself, should act upon. At the same time, it cited the “public discourse and
controversy” now taking place because of the application of the election ban on the
appointment of the Chief Justice, pointing in this regard to the very same reasons
mentioned in Valenzuela about the
_______________
11 The JBC position states:
xxxx
Likewise, the JBC has yet to take a position on when to submit the
shortlist to the proper appointing authority, in light of Section 4(1),
Article VIII of the Constitution, which provides that vacancy in the
Supreme Court shall be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution concerning the ban on
Presidential appointments “two (2) months immediately before the next
presidential elections and up to the end of his term” and Section 261(g),
Article XXIII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these consolidated
Petitions and Administrative Matter. [Emphasis supplied.]
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De Castro vs. Judicial and Bar Council (JBC)
need to resolve the issue and avoid the recurrence of conflict between the Executive
and the Judiciary, and the need to “avoid polemics concerning the matter.”12
I recognized in the Separate Opinion that, unlike in Valenzuelawhere an
outright defiance of the election ban took place, no such obvious triggering event
transpired in the Mendoza petition.13Rather, the Mendoza petition looked to the
supervisory power of the Court over judicial personnel and over the JBC as basis
to secure a resolution of the election ban issue. The JBC, at that time, had
indicated its intent to look up to the Court’s supervisory power and role as the final
interpreter of the Constitution to guide it in responding to the challenges it
confronts.14 To me, this was “a point no less critical, from the point of view of
supervision, than the appointment of the two judges during the election ban period
in Valenzuela.”15
In making this conclusion, I pointed out in my Separate Opinion the
unavoidable surrounding realities evident from the confluence of events,
namely: (1) an election to be held on May 10, 2010; (2) the retirement of the Chief
Justice on May 17, 2010; (3) the lapse of the terms of the elective officials from the
President to the congressmen on June 30, 2010; (4) the delay before the Congress
can organize and send its JBC representatives; and (5) the expiration of the term
of a non-elective JBC member in July 2010.16 All these—juxtaposed
_______________
12 Mendoza Petition, pp. 5-6.
13 Separate Opinion, pp. 16-17.
14 Supra note 11.
15 Id., at p. 17.
16 Separate Opinion, pp. 19-22:
A first reality is that the JBC cannot, on its own due to lack of the proper
authority, determine the appropriate course of action to take under the
Constitution. Its principal function is to recommend appointees to the Judiciary
and it has no authority to interpret constitutional provisions, even those affecting
its principal function;
673
VOL. 618, APRIL 20, 2010 673
De Castro vs. Judicial and Bar Council (JBC)
with the Court’s supervision over the JBC, the latter’s need for guidance, and the
existence of an actual controversy on
_______________
the authority to undertake constitutional interpretation belongs to the courts
alone.
A second reality is that the disputed constitutional provisions do not stand
alone and cannot be read independently of one another; the Constitution and its
various provisions have to be read and interpreted as one seamless whole, giving
sufficient emphasis to every aspect in accordance with the hierarchy of our
constitutional values. The disputed provisions should be read together and, as
reflections of the will of the people, should be given effect to the extent that they
should be reconciled.
The third reality, closely related to the second, is that in resolving the
coverage of the election ban vis-à-vis the appointment of the Chief Justice and the
Members of the Court, provisions of the Constitution other than the disputed
provisions must be taken into account. In considering when and how to act, the
JBC has to consider that:
 1. The President has a term of six years which begins at noon of
June 30 following the election, which implies that the outgoing President
remains President up to that time. (Section 4, Article VII). The President
assumes office at the beginning of his or her term, with provision for the
situations where the President fails to qualify or is unavailable at the
beginning of his term (Section 7, Article VII).
2. The Senators and the Congressmen begin their respective terms
also at midday of June 30 (Sections 4 and 7, Article VI). The Congress
convenes on the 4th Monday of July for its regular session, but the
President may call a special session at any time. (Section 15, Article VI)
3. The Valenzuela case cited as authority for the position that the
election ban provision applies to the whole Judiciary, only decided the issue
with respect to lower court judges, specifically, those covered by Section 9,
Article VIII of the Constitution. Any reference to the filling up of vacancies
in the Supreme Court pursuant to Section 4(1), Article VIII constitutes
obiter dictum as this issue was not directly in issue and was not ruled upon.
674
674 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
the same issues bedeviling the JBC—in my view, were sufficient to save the
Mendoza petition from being a mere request for opinion or a petition for
declaratory relief that falls under
_______________
These provisions and interpretation of the Valenzuela ruling—when read
together with disputed provisions, related with one another, and considered with
the May 17, 2010 retirement of the current Chief Justice—bring into focus certain
unavoidable realities, as follows:
1. If the election ban would apply fully to the Supreme Court, the
incumbent President cannot appoint a Member of the Court beginning
March 10, 2010, all the way up to June 30, 2010.
2. The retirement of the incumbent Chief Justice—May 17, 2010—
falls within the period of the election ban. (In an extreme example where the
retirement of a Member of the Court falls on or very close to the day the
election ban starts, the Office of the Solicitor General calculates in its
Comment that the whole 90 days given to the President to make appointment
would be covered by the election ban.)
3. Beginning May 17, 2010, the Chief Justice position would be
vacant, giving rise to the question of whether an Acting Chief Justice can
act in his place. While this is essentially a Supreme Court concern, the
Chief Justice is the ex officio Chair of the JBC; hence it must be concerned
and be properly guided.
4. The appointment of the new Chief Justice has to be made within
90 days from the time the vacancy occurs, which translates to a deadline of
August 15, 2010.
5. The deadline for the appointment is fixed (as it is not reckoned
from the date of submission of the JBC list, as in the lower courts) which
means that the JBC ideally will have to make its list available at the start
of the 90-day period so that its process will not eat up the 90-day period
granted the President.
6. After noon of June 30, 2010, the JBC representation from Congress
would be vacant; the current representatives’ mandates to act for their
principals extend only to the end of their present terms; thus, the JBC shall
be operating at that point at less than its full membership.
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De Castro vs. Judicial and Bar Council (JBC)
the jurisdiction of the lower court. This recognition is beyond the level of what this
Court can do in handling a moot and academic case—usually, one that no longer
presents a judiciable controversy but one that can still be ruled upon at the
discretion of the court when the constitutional issue is of paramount public interest
and controlling principles are needed to guide the bench, the bar and the public. 17
To be sure, this approach in recognizing when a petition is actionable is novel.
An overriding reason for this approach can be traced to the nature of the petition,
as it rests on the Court’s supervisory authority and relates to the exercise of the
Court’s administrative rather than its judicial functions (other than these two
functions, the Court also has its rulemaking function under Article VIII, Section
5(5) of the Constitution). Strictly speaking, the Mendoza petition calls for
directions from the Court in the exercise of its power of supervision over
_______________
7. Congress will not convene until the 4th Monday of July, 2010, but
would still need to organize before the two Houses of Congress can send
their representatives to the JBC—a process may extend well into August,
2010.
8. By July 5, 2010, one regular member of the JBC would vacate his
post. Filling up this vacancy requires a presidential appointment and the
concurrence of the Commission on Appointments.
9. Last but not the least, the prohibition in Section 15, Article VII is
that “a President or Acting President shall not make appointments.” This
prohibition is expressly addressed to the President and covers the act of
appointment; the prohibition is not against the JBC in the performance of
its function of “recommending appointees to the Judiciary”—an act that is
one step away from the act of making appointments.
17 The Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel Ancestral Domain, G.R. Nos. 183591, 183791, 183752,
183893, 183951 and 183962, October 14, 2008, 568 SCRA 402.
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De Castro vs. Judicial and Bar Council (JBC)
the JBC,18 not on the basis of the power of judicial review.19 In this sense, it does
not need the actual clash of interests of the type that a judicial adjudication
requires. All that must be shown is the active need for supervision to justify the
Court’s intervention as supervising authority.
 Under these circumstances, the Court’s recognition of the Mendoza petition
was not an undue stretch of its constitutional powers. If the recognition is unusual
at all, it is so only because of its novelty; to my knowledge, this is the first time
ever in Philippine jurisprudence that the supervisory authority of the
Court over an attached agency has been highlighted in this
manner. Novelty, per se, however, is not a ground for objection nor a mark of
infirmity for as long as the novel move is founded in law. In this case, as in the
case of the writ of amparo and habeas data that were then novel and avowedly
activist in character, sufficient legal basis exists to actively invoke the Court’s
supervisory authority—granted under the Constitution, no less—as basis for
action.
To partly quote the wording of the Constitution, Article VIII, Section 8(1) and
(5) provide that “A Judicial and Bar Council is hereby created under the
supervision of the Supreme Court… It may exercise such other functions and
duties as the Supreme Court may assign to it.” Supervision, as a legal concept,
more often than not, is defined in relation with
_______________
18 By virtue of its power of administrative supervision, the Supreme Court
oversees the judges’ and court personnel’s compliance with the laws, rules and
regulations. It may take the proper administrative action against them if they
commit any violation. See Ampong v. CSC, G.R. No. 107910, August 26, 2008, 563
SCRA 293. The Constitution separately provides for the Supreme Court’s
supervision over the JBC. See Article VIII, Section 8 of the Constitution.
19 Judicial Review is the power of the courts to test the validity of executive
and legislative acts for their conformity with the Constitution, Garcia v. Executive
Secretary, G.R. No. 157584, April 2, 2009.
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the concept of control.20 In Social Justice Society v. Atienza,21 we defined
“supervision” as follows:
“[Supervision] means overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter fail or neglect to fulfill
them, the former may take such action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate officer ha[s] done in the
performance of his duties and to substitute the judgment of the former for that of
the latter.”
Under this definition, the Court cannot dictate on the JBC the results of its
assigned task, i.e., who to recommend or what standards to use to determine who
to recommend. It cannot even direct the JBC on how and when to do its duty, but
it can, under its power of supervision, direct the JBC to “take such action or step
as prescribed by law to make them perform their duties,” if the duties are not being
performed because of JBC’s fault or inaction, or because of extraneous factors
affecting performance. Note in this regard that, constitutionally, the Court can also
assign the JBC other functions and duties—a power that suggests authority
beyond what is purely supervisory.
Where the JBC itself is at a loss on how to proceed in light of disputed
constitutional provisions that require interpretation,22 the Court is not legally out
of line—as the final author-
_______________
20 Control is the power of an officer to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter. It is distinguished from
supervision in that the latter means overseeing, or the power or authority of an
officer to see that subordinate officers perform their duties, and if the latter fail or
neglect to fulfill them, then the former may take such action or steps as prescribed
by law to make them perform these duties. Nachura, J., Outline Reviewer in
Political Law, 2006 ed., p. 276.
21 G.R. No. 156052, February 13, 2008, 545 SCRA 92.
22 Supra notes 11 and 14.
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678 SUPREME COURT REPORTS ANNOTATED
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ity on the interpretation of the Constitution and as the entity constitutionally-
tasked to supervise the JBC—in exercising its oversight function by clarifying the
interpretation of the disputed constitutional provision to guide the JBC. In doing
this, the Court is not simply rendering a general legal advisory; it is providing
concrete and specific legal guidance to the JBC in the exercise of its supervisory
authority, after the latter has asked for assistance in this regard. That the Court
does this while concretely resolving actual controversies (the Tolentino and
Soriano petitions) on the same issue immeasurably strengthens the intrinsic
correctness of the Court’s action.
It may be asked: why does the Court have to recognize the Mendoza petition
when it can resolve the conflict between Article VII, Section 15 and Article VIII,
Section 4(1) through the Tolentino and Soriano petitions?
The answer is fairly simple and can be read between the lines of the above
explanation on the relationship between the Court and the JBC. First,
administrative is different from judicial function and providing guidance to the
JBC can only be appropriate in the discharge of the Court’s administrative
function. Second, the resolution of the Tolentino and Soriano petitions will lead to
rulings directly related to the underlying facts of these petitions, without clear
guidelines to the JBC on the proper parameters to observe vis-à-vis the
constitutional dispute along the lines the JBC needs. In fact, concrete guidelines
addressed to the JBC in the resolution of the Tolentino/Soriano petitions may even
lead to accusations that the Court’s resolution is broader than is required by the
facts of the petitions. The Mendoza petition, because it pertains directly to the
performance of the JBC’s duty and the Court’s supervisory authority, allows the
issuance of precise guidelines that will enable the JBC to fully and seasonably
comply with its constitutional mandate.
 I hasten to add that the JBC’s constitutional task is not as simple as some
people think it to be. The process of preparing
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and submitting a list of nominees is an arduous and time-consuming task that
cannot be done overnight. It is a six-step process lined with standards requiring
the JBC to attract the best available candidates, to examine and investigate them,
to exhibit transparency in all its actions while ensuring that these actions conform
to constitutional and statutory standards (such as the election ban on
appointments), to submit the required list of nominees on time, and to ensure as
well that all these acts are politically neutral. On the time element, the JBC list
for the Supreme Court has to be submitted on or before the vacancy occurs given
the 90-day deadline that the appointing President is given in making the
appointment. The list will be submitted, not to the President as an outgoing
President, nor to the election winner as an incoming President, but to the
President of the Philippines whoever he or she may be. If the incumbent
President does not act on the JBC list within the time left in her term, the same
list shall be available to the new President for him to act upon. In all these, the
Supreme Court bears the burden of overseeing that the JBC’s duty is done,
unerringly and with utmost dispatch; the Court cannot undertake this supervision
in a manner consistent with the Constitution’s expectation from the JBC unless it
adopts a pro-active stance within the limits of its supervisory authority.
The Disputed Provisions
The movants present their arguments on the main issue at several
levels. Some argue that the disputed constitutional provisions—Article VII,
Section 15 and Article VIII, Section 4(1)—are clear and speak for themselves on
what the Constitution covers in banning appointments during the election
period.23 One even posits that there is no conflict because both
_______________
23 Philippine Bar Association (PBA), Women Trial Lawyers Organization of
the Philippines (WTLOP), Atty. Amador Z. Tolentino, Atty. Roland B. Inting, Peter
Irving Corvera and Alfonso V. Tan, Jr.
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680 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
provisions can be given effect without one detracting against the full effectiveness
of the other,24 although the effect is to deny the sitting President the option to
appoint in favor of a deferment for the incoming President’s action. Still others,
repeating their original arguments, appeal to the principles of interpretation and
latin maxims to prove their point.25
In my discussions in the Separate Opinion, I stated upfront my views on how
the disputed provisions interact with each other. Read singly and in isolation, they
appear clear (this reading applies the “plain meaning rule” that Tolentino
advocates in his motion for reconsideration, as explained below). Arrayed side by
side with each other and considered in relation with the other provisions of the
Constitution, particularly its structure and underlying intents, the conflict
however becomes obvious and unavoidable.
Section 15 on its face disallows any appointment in clear negative terms (“shall
not make”) without specifying the appointments covered by the prohibition.26 From
this literal and isolated reading springs the argument that no exception is provided
(except that found in Section 15 itself) so that even the Judiciary is covered by the
ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical in its
terms: any vacancy in the Court shall be filledwithin 90 days from its
occurrence.27 In the way of Sec-
_______________
24 See PBA’s Motion for Reconsideration.
25 See the Motions for Reconsideration for PBA, WTLOP, Atty. Amador Z.
Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and Alfonso V. Tan, Jr.
26 CONSTITUTION, Article VII, Section 15:
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.
27 CONSTITUTION, Article VIII, Section 4(1):
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tion 15, Section 4(1) is also clear and categorical and provides no exception; the
appointment refers solely to the Members of the Supreme Court and does not
mention any period that would interrupt, hold or postpone the 90-day requirement.
From this perspective, the view that no conflict exists cannot be seriously
made, unless with the mindset that one provision controls and the other should
yield. Many of the petitions in fact advocate this kind of reading, some of them
openly stating that the power of appointment should be reserved for the incoming
President.28 The question, however, is whether—from the viewpoint of strict law
and devoid of the emotionalism and political partisanship that permeate the
present Philippine political environment—this kind of mindset can really be
adopted in reading and applying the Constitution.
In my view, this kind of mindset and the conclusion it inevitably leads to cannot
be adopted; the provisions of the Constitution cannot be read in isolation from what
the whole contains. To be exact, the Constitution must be read and understood as
a whole, reconciling and harmonizing apparently conflicting provisions so that all
of them can be given full force and effect,29 unless the Constitution itself expressly
states otherwise.30
_______________
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.
xxxx
28 See Petition on Intervention of WTLOP, as cited in the decision in the above-
captioned cases; see also: PBA’s motion for reconsideration.
29 Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003,
415 SCRA 44, citing Civil Liberties Union v. Executive Secretary, 194 SCRA 317
(1994); Peralta v. Commission on Elections, G.R. No. 47771, March 11, 1978, 82
SCRA 30 (1978); Ang-
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Not to be forgotten in reading and understanding the Constitution are the
many established underlying constitutional principles that we have to observe and
respect if we are to be true to the Constitution. These principles—among them the
principles of checks and balances and separation of powers—are not always
expressly stated in the Constitution, but no one who believes in and who has
studied the Constitution can deny that they are there and deserve utmost
attention, respect, and even priority consideration.
In establishing the structures of government, the ideal that the Constitution
seeks to achieve is one of balance among the three great departments of
government—the Executive, the Legislative and the Judiciary, with each
department undertaking its constitutionally-assigned task as a check against the
exercise of power by the others, while all three departments move forward in
working for the progress of the nation. Thus, the Legislature makes the laws and
is supreme in this regard, in the way that the Executive is supreme in enforcing
and administering the law, while the Judiciary interprets both the Constitution
and the law. Any provision in each of the Articles on these three
departments31 that intrudes into the other must be closely examined if the
provision affects and upsets the desired balance.
Under the division of powers, the President as Chief Executive is given the
prerogative of making appointments, subject only to the legal qualification
standards, to the checks provided by the Legislature’s Commission on
Appointments (when applicable) and by the JBC for appointments in the Judiciary,
and to the Constitution’s own limitations. Conflict
_______________
Angco v. Castillo, G.R. No. 17169, November 30, 1963, 9 SCRA 619 (1963).
30 Macalintal v. Commission on Elections, G.R. No. 157013, July 10, 2003, 310
SCRA 614, citing Chiongbian v. De Leon, 82 Phil 771 (1949).
31 Article VI for the Legislature, Article VII for the Executive, and Article VIII
for the Judiciary.
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comes in when the Constitution laid down Article VII, Section 15 limiting the
President’s appointing power during the election period. This limitation of power
would have been all-encompassing and would, thus, have extended to all
government positions the President can fill, had the Constitution not inserted a
provision, also on appointments, in the Article on the Judiciary with respect to
appointments to the Supreme Court. This conflict gives rise to the
questions: which provision should prevail, or should both be given effect?
Or should both provisions yield to a higher concern—the need to
maintain the integrity of our elections?
A holistic reading of the Constitution—a must in constitutional
interpretation—dictates as a general rule that the tasks assigned to each
department and their limitations should be given full effect to fulfill the
constitutional purposes under the check and balance principle, unless the
Constitution itself expressly indicates its preference for one task, concern or
standard over the others,32 or unless this Court, in its role as interpreter of the
Constitution, has spoken on the appropriate interpretation that should be made.33
In considering the interests of the Executive and the Judiciary, a holistic
approach starts from the premise that the constitutional scheme is to grant the
President the power of appointment, subject to the limitation provided under
Article VII, Section 15. At the same time, the Judiciary is assured, without
qualifications under Article VIII, Section 4(1), of the immediate appointment of
Members of the Supreme Court, i.e., within 90 days from the occurrence of the
vacancy. If both provisions would be allowed to take effect, as I believe they
should, the limitation on the appointment power of the Presi-
_______________
32 See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002, 380 SCRA 49;
where the court resolved the clash between the power of the President to extend ad
interim appointments and the power of the Commission on Appointments to
confirm presidential appointments.
33 Ibid.
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684 SUPREME COURT REPORTS ANNOTATED
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dent under Article VII, Section 15 should itself be limited by the appointment of
Members of the Court pursuant to Article VIII, Section 4(1), so that the provision
applicable to the Judiciary can be given full effect without detriment to the
President’s appointing authority. This harmonization will result in restoring to the
President the full authority to appoint Members of the Supreme Court pursuant
to the combined operation of Article VII, Section 15 and Article VIII, Section 4(1).
Viewed in this light, there is essentially no conflict, in terms of the authority
to appoint, between the Executive and Judiciary; the President would effectively
be allowed to exercise the Executive’s traditional presidential power of
appointment while respecting the Judiciary’s own prerogative. In other words, the
President retains full powers to appoint Members of the Court during the election
period, and the Judiciary is assured of a full membership within the time frame
given.
Interestingly, the objection to the full application of Article VIII, Section 4(1)
comes, not from the current President, but mainly from petitioners echoing the
present presidential candidates, one of whom shall soon be the incoming
President. They do not, of course, cite reasons of power and the loss of the
opportunity to appoint the Chief Justice; many of the petitioners/intervenors
oppose the full application of Article VIII, Section 4(1) based on the need to
maintain the integrity of the elections through the avoidance of a “midnight
appointment.”
This “integrity” reason is a given in a democracy and can hardly be opposed on
the theoretical plane, as the integrity of the elections must indeed prevail in a true
democracy. The statement, however, begs a lot of questions, among them the
question of whether the appointment of a full Court under the terms of Article
VIII, Section 4(1) will adversely affect or enhance the integrity of the elections.
In my Separate Opinion, I concluded that the appointment of a Member of the
Court even during the election period per
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se implies no adverse effect on the integrity of the election; a full Court is ideal
during this period in light of the Court’s unique role during elections. I maintain
this view and fully concur in this regard with the majority.
During the election period, the court is not only the interpreter of the
Constitution and the election laws; other than the Commission on Elections and
the lower courts to a limited extent, the Court is likewise the highest impartial
recourse available to decisively address any problem or dispute arising from the
election. It is the leader and the highest court in the Judiciary, the only one of the
three departments of government directly unaffected by the election. The Court is
likewise the entity entrusted by the Constitution, no less, with the gravest election-
related responsibilities. In particular, it is the sole judge of all contests in the
election of the President and the Vice-President, with leadership and participation
as well in the election tribunals that directly address Senate and House of
Representatives electoral disputes. With this grant of responsibilities, the
Constitution itself has spoken on the trust it reposes on the Court on election
matters. This reposed trust, to my mind, renders academic any question of whether
an appointment during the election period will adversely affect the integrity of the
elections—it will not, as the maintenance of a full Court in fact contributes to the
enforcement of the constitutional scheme to foster a free and orderly election.
In reading the motions for reconsideration against the backdrop of the partisan
political noise of the coming elections, one cannot avoid hearing echoes from some
of the arguments that the objection is related, more than anything else, to their
lack of trust in an appointment to be made by the incumbent President who will
soon be bowing out of office. They label the incumbent President’s act as a
“midnight appointment”—a term that has acquired a pejorative meaning in
contemporary society.686
686 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
As I intimated in my Separate Opinion, the imputation of distrust can be made
against any appointing authority, whether outgoing or incoming. The incoming
President himself will be before this Court if an election contest arises; any
President, past or future, would also naturally wish favorable outcomes in legal
problems that the Court would resolve. These possibilities and the potential for
continuing influence in the Court, however, cannot be active considerations in
resolving the election ban issue as they are, in their present form and presentation,
all speculative. If past record is to be the measure, the record of past Chief Justices
and of this Court speaks for itself with respect to the Justices’ relationship with,
and deferral to, the appointing authority in their decisions.
What should not be forgotten in examining the records of the Court, from the
prism of problems an electoral exercise may bring, is the Court’s unique and proven
capacity to intervene and diffuse situations that are potentially explosive for the
nation. EDSA II particularly comes to mind in this regard (although it was an
event that was not rooted in election problems) as it is a perfect example of the
potential for damage to the nation that the Court can address and has addressed.
When acting in this role, a vacancy in the Court is not only a vote less, but a
significant contribution less in the Court’s deliberations and capacity for action,
especially if the missing voice is the voice of the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the coming
elections, it will be compounded by the lack of leaders because of the lapse of the
President’s term by June 30, 2010; by a possible failure of succession if for some
reason the election of the new leadership becomes problematic; and by the similar
absence of congressional leadership because Congress has not yet convened to
organize itself.34 In this scenario, only the Judiciary of the three great departments
of
_______________
34 Supra note 13.
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government stands unaffected by the election and should at least therefore be
complete to enable it to discharge its constitutional role to its fullest potential and
capacity. To state the obvious, leaving the Judiciary without any permanent leader
in this scenario may immeasurably complicate the problem, as all three
departments of government will then be leaderless.
To stress what I mentioned on this point in my Separate Opinion, the absence
of a Chief Justice will make a lot of difference in the effectiveness of the Court as
he or she heads the Judiciary, sits as Chair of the JBC and of the Presidential
Electoral Tribunal, presides over impeachment proceedings, and provides the
moral suasion and leadership that only the permanent mantle of the Chief Justice
can bestow. EDSA II is just one of the many lessons from the past when the
weightiest of issues were tackled and promptly resolved by the Court. Unseen by
the general public in all these was the leadership that was there to ensure that the
Court would act as one, in the spirit of harmony and stability although divergent
in their individual views, as the Justices individually make their contributions to
the collegial result. To some, this leadership may only be symbolic, as the Court
has fully functioned in the past even with an incomplete membership or under an
Acting Chief Justice. But as I said before, an incomplete Court “is not a whole
Supreme Court; it will only be a Court with 14 members who would act and vote
on all matters before it.” To fully recall what I have said on this matter:
“The importance of the presence of one Member of the Court can and should
never be underestimated, particularly on issues that may gravely affect the nation.
Many a case has been won or lost on the basis of one vote. On an issue of the
constitutionality of a law, treaty or statute, a tie vote—which is possible in a 14
member court—means that the constitutionality is upheld. This was our lesson
in Isagani Cruz v. DENR Secretary.
More than the vote, Court deliberation is the core of the decision-making
process and one voice is less is not only a vote less but a contributed opinion, an
observation, or a cautionary word less for the
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688 SUPREME COURT REPORTS ANNOTATED
De Castro vs. Judicial and Bar Council (JBC)
Court. One voice can be a big difference if the missing voice is that of the Chief
Justice.
Without meaning to demean the capability of an Acting Chief Justice, the
ascendancy in the Court of a permanent sitting Chief Justice cannot be equaled.
He is the first among equals—a primus inter pares—who sets the tone for the
Court and the Judiciary, and who is looked up to on all matters, whether
administrative or judicial. To the world outside the Judiciary, he is the
personification of the Court and the whole Judiciary. And this is not surprising
since, as Chief Justice, he not only chairs the Court en banc, but chairs as well the
Presidential Electoral Tribunal that sits in judgment over election disputes
affecting the President and the Vice-President. Outside of his immediate Court
duties, he sits as Chair of the Judicial and Bar Council, the Philippine Judicial
Academy and, by constitutional command, presides over the impeachment of the
President. To be sure, the Acting Chief Justice may be the ablest, but he is not the
Chief Justice without the mantle and permanent title of the Office, and even his
presence as Acting Chief Justice leaves the Court with one member less. Sadly,
this member is the Chief Justice; even with an Acting Chief Justice, the Judiciary
and the Court remains headless.”35
Given these views, I see no point in re-discussing the finer points of technical
interpretation and their supporting latin maxims that I have addressed in my
Separate Opinion and now feel need no further elaboration; maxims can be found
to serve a pleader’s every need and in any case are the last interpretative tools in
constitutional interpretation. Nor do I see any point in discussing arguments based
on the intent of the framers of the Constitution now cited by the parties in the
contexts that would serve their own ends. As may be evident in these discussions,
other than the texts of the disputed provisions, I prefer to examine their purposes
and the consequences of their application, understood within the context of
democratic values. Past precedents are equally invaluable for the lead, order, and
stability they contribute, but only if they are in point, certain, and still alive to
current realities, while
_______________
35 Separate Opinion, p. 32.
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the history of provisions, including the intents behind them, are primarily
important to ascertain the purposes the provisions serve.
From these perspectives and without denigrating the framers’ historical
contributions, I say that it is the Constitution that now primarily speaks to us in
this case and what we hear are its direct words, not merely the recorded isolated
debates reflecting the personal intents of the constitutional commissioners as cited
by the parties to fit their respective theories. The voice speaking the words of the
Constitution is our best guide, as these words will unalterably be there for us to
read in the context of their purposes and the nation’s needs and
circumstances. This Concurring and Dissenting Opinion hears and listens to that
voice.
The Valenzuela Decision
The ponencia’s ruling reversing Valenzuela, in my view, is out of place in the
present case, since at issue here is the appointment of the Chief Justice during the
period of the election ban, not the appointment of lower court judges
that Valenzuela resolved. To be perfectly clear, the conflict in the constitutional
provisions is not confined to Article VII, Section 15 and Article VIII, Section 4(1)
with respect to the appointment of Members of the Supreme Court; even before
the Valenzuela ruling, the conflict already existed between Article VII, Section 15
and Article VIII, Section 9—the provision on the appointment of the justices and
judges of courts lower than the Supreme Court. After this Court’s ruling in Valen-
zuela, no amount of hairsplitting can result in the conclusion that Article VII,
Section 15 applied the election ban over the whole Judiciary, including the
Supreme Court, as the facts and the fallo of Valenzuela plainly spoke of the
objectionable appointment of two Regional Trial Court judges. To
reiterate, Valenzuela only resolved the conflict between Article VII, Section 15 and
appointments to the Judiciary under Article VIII, Section 9.690
690 SUPREME COURT REPORTS ANNOTATED
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If Valenzuela did prominently figure at all in the present case, the prominence
can be attributed to the petitioners’ mistaken reading that this case is primary
authority for the dictum that Article VII, Section 15 completely bans all
appointments to the Judiciary, including appointments to the Supreme Court,
during the election period up to the end of the incumbent President’s term.
In reality, this mistaken reading is an obiter dictum in Valenzuela, and hence,
cannot be cited for its primary precedential value. This legal situation still holds
true as Valenzuela was not doctrinally reversed as its proposed reversal was
supported only by five (5) out of the 12 participating Members of the Court. In
other words, this ruling on how Article VII, Section 15 is to be interpreted in
relation with Article VIII, Section 9, should continue to stand unless otherwise
expressly reversed by this Court.
But separately from the mistaken use of an obiter ruling as primary authority,
I believe that I should sound the alarm bell about the Valenzuela ruling in light of
a recent vacancy in the position of Presiding Justice of the Sandiganbayan
resulting from Presiding Justice Norberto Geraldez’s death soon after we issued
the decision in the present case. Reversing the Valenzuela ruling now, in the De Castro vs. Judicial and Bar Council (JBC)
absence of a properly filed case addressing an appointment at this time to the tion, under the Constitution, of recommending nominees for the position of Chief
Sandiganbayan or to any other vacancy in the lower courts, will be an irregular Justice. Thus, I vote to deny with finality the Tolentino and Soriano motions for
ruling of the first magnitude by this Court, as it will effectively be a shortcut reconsideration.
that lifts the election ban on appointments to the lower courts without the benefit The other motions for reconsideration in so far as they challenge the conclusion
of a case whose facts and arguments would directly confront the continued validity that the President can appoint the Chief Justice even during the election period
of the Valenzuela ruling. This is especially so after we have placed the Court on are likewise denied with finality for lack of merit, but are granted in so far as they
notice that a reversal of Valenzuela is uncalled for because its ruling is not the support the continued validity of the ruling of this Court in In Re: Valenzuela and
litigated issue in this case. Vallarta, A.M. No. 98-5-01-SC, November 9, 1998.
In any case, let me repeat what I stressed in my Separate Opinion My opinion on the Mendoza petition stands.
about Valenzuela which rests on the reasoning that the evils Section 15 seeks to Motions for Reconsideration denied.
remedy—vote buying, midnight Notes.—Stare decisis simply means that for the sake of certainty, a conclusion
691 reached in one case should be applied to those that follow if the facts are
VOL. 618, APRIL 20, 2010 691 substantially the same, even though the parties may be different. Where the same
De Castro vs. Judicial and Bar Council (JBC) questions relating to the same event have been put forward by parties similarly
appointments and partisan reasons to influence the elections—exist, thus situated as in a previous case litigated and decided by a competent court, a rule
justifying an election appointment ban. In particular, the “midnight appointment” of stare decisis is a bar to any attempt to relitigate the same issue. (Grand
justification, while fully applicable to the more numerous vacancies at the lower Placement and General Services Corporation vs. Court of Appeals, 481 SCRA
echelons of the Judiciary (with an alleged current lower court vacancy level of 537 189; United Planters Sugar Milling Co., Inc. (UPSUMCO) vs. Court of
Appeals, 508 SCRA 310 [2006])
or a 24.5% vacancy rate), should not apply to the Supreme Court which has only a
total of 15 positions that are not even vacated at the same time. The most number The doctrine of adherence to precedents or stare decisis was applied by the
of vacancies for any one year occurred only last year (2009) when seven (7) English courts and was later adopted by the United States. (Ting vs. Velez-
positions were vacated by retirement, but this vacancy rate is not expected to be Ting, 582 SCRA 694 [2009])
replicated at any time within the next decade. Thus “midnight appointments” to ——o0o——
the extent that they were understood in Aytona36 will not occur in the vacancies of
this Court as nominations to its vacancies are all processed through the JBC under
the public’s close scrutiny. As already discussed above, the institutional integrity
of the Court is hardly an issue. If at all, only objections personal to the individual
Members of the Court or against the individual applicants can be made, but these
are matters addressed in the first place by the JBC before nominees are submitted.
There, too, are specific reasons, likewise discussed above, explaining why the G.R. No. 203372 June 16, 2015
election ban should not apply to the Supreme Court. These exempting reasons, of
course, have yet to be shown to apply to the lower courts. Thus, on the whole, the ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner,
reasons justifying the election ban in Valenzuela still obtain in so far as the lower vs.
courts are concerned, and have yet to be proven otherwise in a properly filed case. OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL JOSE ANSELMO
Until then, Valenzuela, except to the extent that it mentioned Section 4(1), I. CADIZ, Respondents.
should remain an authoritative ruling of this Court.
x-----------------------x
CONCLUSION
G.R. No. 206290
In light of these considerations, a writ of prohibition cannot issue to prevent
the JBC from performing its principal func- ATTY. DINDO G. VENTURANZA, Petitioner,
vs.
_______________ OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity as the Secretary
of the Department of Justice, CLARO A. ARELLANO, in his capacity as the
36 Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4 SCRA 1. Prosecutor General, and RICHARD ANTHONY D. FADULLON, in his capacity as
692 the Officer-in-Charge of the Office of the City Prosecutor of Quezon
City,Respondents.
692 SUPREME COURT REPORTS ANNOTATED
x-----------------------x
G.R. No. 209138
IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners,
vs.
COURT OF APPEALS and THE OFFICE OF THE PRESIDENT, Respondents.
x-----------------------x
G.R. No. 212030
EDDIE U. TAMONDONG, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent.
DECISION
CARPIO, J.:
The present consolidated cases involve four petitions: G.R. No. 203372 with Atty.
Cheloy E. Velicaria-Garafil (Atty. Velicaria-Garafil), who was appointed State Solicitor
II at the Office of the Solicitor General (OSG), as petitioner; G.R. No. 206290 with Atty.
Dindo G. Venturanza (Atty. Venturanza), who was appointed Prosecutor IV (City
Prosecutor) of Quezon City, as petitioner; G.R. No. 209138 with Irma A. Villanueva
(Villanueva), who was appointed Administrator for Visayas of the Board of
Administrators of the Cooperative Development Authority (CDA), and Francisca B.
Rosquita (Rosquita), who was appointed Commissioner of the National Commission
of Indigenous Peoples (NCIP), as petitioners; and G.R. No. 212030 with Atty. Eddie U.
Tamondong (Atty. Tamondong), who was appointed member of the Board of Directors
of the Subic Bay Metropolitan Authority (SBMA), as petitioner. All petitions question
the constitutionality of Executive Order No. 2 (EO 2) for being inconsistent with Section
15, Article VII of the 1987 Constitution.
Petitioners seek the :reversal of the separate Decisions of the Court of Appeals (CA)
that dismissed their petitions and upheld the constitutionality of EO 2. G.R. No. 203372
filed by Atty. Velicaria-Garafil is a Petition for Review on Certiorari,1 assailing the
Decision2 dated 31 August 2012 of the CA in CA-G.R. SP No. 123662. G.R. No.
206290 filed by Atty. Venturanza is a Petition for Review on Certiorari, 3 assailing the
Decision4 dated 31 August 2012 and Resolution5 dated 12 March 2013 of the CA in
CA-G.R. SP No. 123659. G.R. No. 209138 filed by Villanueva and Rosquita is a
Petition for Certiorari,6 seeking to nullify the Decision7 dated 28 August 2013 of the CA
in CA-G.R. SP Nos. 123662, 123663, and 123664.8 Villanueva and Rosquita filed a
Petition-in-Intervention in the consolidated cases before the CA. G.R. No. 212030 is a
Petition for Review on Certiorari,9 assailing the Decision10 dated 31 August 2012 of the
CA in CAG.R. SP No. 123664 and Resolution11 dated 7 April 2014 of the CA in CAG.R.
SP Nos. 123662, 123663, and 123664.12
Facts of the Cases
Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-
Arroyo (President Macapagal-Arroyo) issued more than 800 appointments to various
positions in several government offices.
The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution
reads:
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.
Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for valid
appointments and the next day, 11 March 2010, was the start of the ban on midnight
appointments. Section 15, Article VII of the 1987 Constitution recognizes as an
exception to the ban on midnight appointments only "temporary appointments to
executive positions when continued vacancies therein will prejudice public service or
endanger public safety." None of the petitioners claim that their appointments fall under
this exception.
Appointments
G.R. No. 203372
The paper evidencing Atty. Velicaria-Garafil's appointment as State Solicitor II at the
OSG was dated 5 March 2010.13 There was a transmittal letter dated 8 March 2010 of
the appointment paper from the Office of the President (OP), but this transmittal letter
was received by the Malacañang Records Office (MRO) only on 13 May 2010. There
was no indication as to the OSG's date of receipt of the appointment paper. On 19
March 2010, the OSG's Human Resources Department called up Atty. Velicaria-Garafil
to schedule her oath-taking. Atty. Velicaria-Garafil took her oath of office as State
Solicitor II on 22 March 2010 and assumed her position on 6 April 2010.
G.R. No. 206290
The paper evidencing Atty. Venturanza's appointment as Prosecutor IV (City
Prosecutor) of Quezon City was dated 23 February 2010.14 It is apparent, however,
that it was only on 12 March 2010 that the OP, in a letter dated 9 March 2010,
transmitted Atty. Venturanza's appointment paper to then Department of Justice (DOJ)
Secretary Alberto C. Agra.15 During the period between 23 February and 12 March
2010, Atty. Venturanza, upon verbal advice from Malacañang of his promotion but
without an official copy of his appointment paper, secured clearances from the Civil
Service Commission (CSC),16 Sandiganbayan,17 and the DOJ.18 Atty. Venturanza
took his oath of office on 15 March 2010, and assumed office on the same day.
G.R. No. 209138
 The paper evidencing Villanueva's appointment as Administrator for Visayas of the EXECUTIVE ORDER NO. 2
Board of Administrators of the CDA was dated 3 March 2010.19 There was no
transmittal letter of the appointment paper from the OP. Villanueva took her oath of RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY
office on 13 April 2010. THE PREVIOUS ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL
BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER PURPOSES.
The paper evidencing Rosquita's appointment as Commissioner, representing Region
I and the Cordilleras, of the NCIP was dated 5 March 2010.20 Like Villanueva, there WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that "Two months
was no transmittal letter of the appointment paper from the OP. Rosquita took her oath immediately before the next presidential elections and up to the end of his term, a
of office on 18 March 2010. G.R. No. 212030 President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice
The paper evidencing Atty. Tamondong's appointment as member, representing the public service or endanger public safety."; WHEREAS, in the case of "In re:
private sector, of the SBMA Board of Directors was dated 1 March 2010. 21 Atty. Appointments dated March 30, 1998 of Hon. Mateo Valenzuela and Hon. Vallarta as
Tamondong admitted that the appointment paper was received by the Office of the Judges of the Regional Trial Court of Branch 62 of Bago City and Branch 24 of
SBMA Chair on 25 March 201022 and that he took his oath of office on the same Cabanatuan City, respectively" (A.M. No. 98-5-01-SC Nov. 9, 1998), the Supreme
day.23 He took another oath of office on 6 July 2010 as "an act of extra caution because Court interpreted this provision to mean that the President is neither required to make
of the rising crescendo of noise from the new political mandarins against the so-called appointments nor allowed to do so during the two months immediately before the next
'midnight appointments."'24 presidential elections and up to the end of her term. The only known exceptions to this
prohibition are (1) temporary appointments in the executive positions when continued
To summarize, the pertinent dates for each petitioner are as follows: vacancies will prejudice public service or endanger public safety and in the light of the
recent Supreme Court decision in the case of De Castro, et al. vs. JBC and PGMA,
G.R. No. 191002, 17 March 2010, (2) appointments to the Judiciary;
Date of Appointment Date of Transmittal Date of Receipt by Date of Oath of Assumption of
Letter Letter MRO Office Office
WHEREAS, Section 261 of the Omnibus Election Code provides that:

"Section 261. Prohibited Acts.-The following shall be guilty of an election offense:

- 5 March 2010 8 March 2010 13 May 2010 22 March 2010 6 April 2010

(g) Appointments of new employees, creation of new position, promotion, or

giving salary increases. - During the period of forty-five days before a regular
23 February 2010 9 March 2010 12 March 2010 15 March 2010 15 March 2010 and thirty days before a special election.
election

3 March 2010 4 May 2010 13 April 2010 (1) Any head, official or appointing officer of a government office, agency or
instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether
5 March 2010 13 May 2010 18 March 2010 provisional, temporary or casual, or creates and fills any new position, except
upon prior authority to the Commission. The Commission shall not grant the
authority sought unless it is satisfied that the position to be filled is essential
25 March 2010 and to the proper functioning of the office or agency concerned, and that the
1 March 2010
6 July 2010 position shall not be filled in a manner that may influence the election.

Issuance of EO 2 As an exception to the foregoing provisions, a new employee may be

On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of
office as President of the Republic of the Philippines. On 30 July 2010, President
Aquino issued EO 2 recalling, withdrawing, and revoking appointments issued by
President Macapagal-Arroyo which violated the constitutional ban on midnight
appointments.
The entirety of EO 2 reads:
appointed in the case of urgent need:
Provided, however, that notice of the appointment shall be given to the
Commission within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null and void.
(2) Any government official who promotes or gives any increase of salary or
remuneration or privilege to any government official or employee, including
those in government-owned or controlled corporations.";
WHEREAS, it appears on record that a number of appointments were made on or
about 10 March 2010 in complete disregard of the intent and spirit of the constitutional
ban on midnight appointment and which deprives the new administration of the power
to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed complete
only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is necessary to uphold
the principle that appointments to the civil service must be made on the basis of merit
and fitness, it is imperative to recall, withdraw, and revoke all appointments made in
violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me
by the Constitution as President of the Philippines, do hereby order and direct that:
SECTION 1. Midnight Appointments Defined. - The following appointments made by
the former President and other appointing authorities in departments, agencies,
offices, and instrumentalities, including government-owned or controlled corporations,
shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010, including all appointments
bearing dates prior to March 11, 2010 where the appointee has accepted, or
taken his oath, or assumed public office on or after March 11, 2010, except
temporary appointments in the executive positions when continued vacancies
will prejudice public service or endanger public safety as may be determined
by the appointing authority.
(b) Those made prior to March 11, 2010, but to take effect after said date or
appointments to office that would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the period of 45 days prior to
the May 10, 2010 elections in violation of Section 261 of the Omnibus Election
Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight
appointments, as defined under Section 1, are hereby recalled, withdrawn, and
revoked. The positions covered or otherwise affected are hereby declared vacant.
SECTION 3. Temporary designations. - When necessary to maintain efficiency in
public service and ensure the continuity of government operations, the Executive
Secretary may designate an officer-in-charge (OIC) to perform the duties and
discharge the responsibilities of any of those whose appointment has been recalled,
until the replacement of the OIC has been appointed and qualified.
SECTION 4. Repealing Clause. - All executive issuances, orders, rules and regulations
or part thereof inconsistent with the provisions of this Executive Order are hereby
repealed or modified accordingly.
SECTION 5. Separability Clause. - If any section or provision of this executive order
shall be declared unconstitutional or invalid, the other sections or provision not affected
thereby shall remain in full force and effect.
SECTION 6. Effectivity. - This Executive order shall take effect immediately.
DONE in the City of Manila, this 30th day of July, in the year Two Thousand and Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General (Sol. Gen.
Cadiz). On 6 August 2010, Sol. Gen. Cadiz instructed a Senior Assistant Solicitor
General to inform the officers and employees affected by EO 2 that they were
terminated from service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010 without any knowledge of
her termination. She was made to return the office-issued laptop and cellphone, and
was told that her salary ceased as of 7 August 2010. On 12 August 2010, Atty.
Velicaria-Garafil was informed that her former secretary at the OSG received a copy
of a memorandum on her behalf. The memorandum, dated 9 August 2010, bore the
subject "Implementation of Executive Order No. 2 dated 30 July 2010" and was
addressed to the OSG's Director of Finance and Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before this Court
on 1 September 2010. The petition prayed for the nullification of EO 2, and for her
reinstatement as State Solicitor II without loss of seniority, rights and privileges, and
with full backwages from the time that her salary was withheld. 26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile transmission an
undated copy of DOJ Order No. 556. DOJ Order No. 556, issued by DOJ Secretary
Leila M. De Lima (Sec. De Lima), designated Senior Deputy State Prosecutor Richard
Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge of the Office of the City
Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15 September 2010, Atty.
Venturanza asked for clarification of his status, duties, and functions since DOJ Order
No. 556 did not address the same. Atty. Venturanza also asked for a status quo ante
order to prevent Pros. Fadullon ·from usurping the position and functions of the City
Prosecutor of Quezon City. Atty. Venturanza also wrote a letter to President Aquino
on the same day, and sought reaffirmation of his promotion as City Prosecutor of
Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010 from Sec.
De Lima which directed him to relinquish the office to which he was appointed, and to
cease from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with Urgent
Prayer for Status Quo Ante Order, Temporary Restraining Order and/or Preliminary
Mandatory Injunction (G.R. No. 193 867) before this Court on 14 October 2010. 27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3
August 2010, Villanueva and Rosquita sought to intervene in G.R. No. 192991. 28 On 1
October 2010, Executive Secretary Paquito N. Ochoa, Jr. revoked Rosquita's
appointment as NCIP Commissioner.29 On 13 October 2010, Villanueva and Rosquita
notified this Court that they wanted to intervene in Atty. Tamondong's petition (G.R.
No. 192987) instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010.
He filed a petition for prohibition, declaratory relief and preliminary injunction with
prayer for temporary restraining order (G.R. No. 192987) before this Court on 9 August
2010. The petition prayed for the prohibition of the implementation of EO 2, the
declaration of his appointment as legal, and the declaration of EO 2 as
unconstitutional.30
Referral to CA
There were several petitions31 and motions for intervention32 that challenged the
constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the petitions, motions for
intervention, as well as various letters, to the CA for further proceedings, including the
reception and assessment of the evidence from all parties. We defined the issues as
follows:
1. Whether the appointments of the petitioners and intervenors were midnight
appointments within the coverage of EO 2;
2. Whether all midnight appointments, including those of petitioners and
intervenors, were invalid;
3 . Whether the appointments of the petitioners and intervenors were made
with undue haste, hurried maneuvers, for partisan reasons, and not in
accordance with good faith; and
4. Whether EO 2 violated the Civil Service Rules on Appointment.33
This Court gave the CA the authority to resolve all pending matters and applications,
and to decide the issues as if these cases were originally filed with the CA.
Rulings of the CA
Even though the same issues were raised in the different petitions, the CA promulgated
separate Decisions for the petitions. The CA consistently ruled that EO 2 is
constitutional. The CA, however, issued different rulings as to the evaluation of the
circumstances of petitioners' appointments. In the cases of Attys. Velicaria-Garafil and
Venturanza, the CA stated that the OP should consider the circumstances of their
appointments. In the cases of Villanueva, Rosquita, and Atty. Tamondong, the CA
explicitly stated that · the revocation of their appointments was proper because they
were midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August 2012. The
CA ruled that EO 2 is not unconstitutional. However, the CA relied on Sales v.
Carreon34 in ruling that the OP should evaluate whether Atty. Velicaria-Garafil's
appointment had extenuating circumstances that might make it fall outside the ambit
of EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as State Solicitor II at
the OSG is hereby referred to the Office of the President which has the sole authority
and discretion to pass upon the same.
SO ORDERED.35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No. 123664. The
dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED.
Executive Order No. 2 is hereby declared NOT UNCONSTITUTIONAL. Accordingly,
the revocation of Atty. Eddie Tamondong's appointment as Director of Subic Bay
Metropolitan Authority is VALID for being a midnight appointment.
SO ORDERED.39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether petitioners'
appointments violate Section 15, Article VII of the 1987 Constitution, and (2) whether
EO 2 is constitutional. Ruling of the Court
The petitions have no merit. All of petitioners' appointments are midnight appointments
and are void for violation of Section 15, Article VII of the 1987 Constitution. EO 2 is
constitutional. Villanueva and Rosquita, petitioners in G.R. No. 209138, did not appeal
the CA's ruling under Rule 45, but instead filed a petition for certiorari under Rule 65.
This procedural error alone warrants an outright dismissal of G.R. No. 209138. Even if
it were correctly filed under Rule 45, the petition should still be dismissed for being filed
out of time.40 There was also no explanation as to why they did not file a motion for
reconsideration of the CA's Decision. Midnight Appointments
This ponencia and the dissent both agree that the facts in all these cases show that
"none of the petitioners have shown that their appointment papers (and transmittal
letters) have been issued (and released) before the ban." 41The dates of receipt by the
MRO, which in these cases are the only reliable evidence of actual transmittal of the
appointment papers by President Macapagal-Arroyo, are dates clearly falling during
the appointment ban. Thus, this ponencia and the dissent both agree that all the
appointments in these cases are midnight appointments in violation of Section 15,
Article VII of the 1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post is a process that
takes several steps to complete. Any valid appointment, including one made under the
exception provided in Section 15, Article VII of the 1987 Constitution, must consist of
the President signing an appointee's appointment paper to a vacant office, the official
transmittal of the appointment paper (preferably through the MRO), receipt of the
appointment paper by the appointee, and acceptance of the appointment by the
appointee evidenced by his or her oath of office or his or her assumption to office.
Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of the 1987
Constitution. Aytona defined "midnight or last minute" appointments for Philippine
jurisprudence.1âwphi1 President Carlos P. Garcia submitted on 29 December 1961,
his last day in office, 350 appointments, including that of Dominador R. Aytona for
Central Bank Governor. President Diosdado P. Macapagal assumed office on 30
December 1961, and issued on 31 December 1961 Administrative Order No. 2
recalling, withdrawing, and cancelling all appointments made by President Garcia after
13 December 1961 (President Macapagal's proclamation date). President Macapagal
appointed Andres V. Castillo as Central Bank Governor on 1 January 1962. This Court
dismissed Aytona's quo warranto proceeding against Castillo, and upheld
Administrative Order No. 2's cancellation of the "midnight or last minute" appointments.
We wrote:
x x x But the issuance of 350 appointments in one night and the planned induction of
almost all of them 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.
x x x Now it is hard to believe that in signing 350 appointments in one night, President
Garcia exercised such "double care" which was required and expected of him; and
therefore, there seems to be force to the contention that these appointments fall
beyond the intent and spirit of the constitutional provision granting to the Executive
authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of powers, this
Court resolves that it must decline to disregard the Presidential .Administrative Order
No. 2, cancelling such "midnight" or "last-minute" appointments.
Of course the Court is . aware of many precedents to the effect that once an
appointment has been issued, it cannot be reconsidered, specially where the
appointee has qualified. But none of them refer to mass ad interim appointments (three
hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a setting
similar to that outlined herein. On the other hand, the authorities admit of exceptional
circumstances justifying revocation and if any circumstances justify revocation, those
described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for denying the power to
revoke after the appointee has qualified is the latter's equitable rights. Yet it is doubtful
if such equity might be successfully set up in the present situation, considering the rush
conditional appointments, hurried maneuvers and other happenings detracting from
that degree of good faith, morality and propriety which form the basic foundation of
claims to equitable relief. The appointees, it might be argued, wittingly or unwittingly
cooperated with the stratagem to beat the deadline, whatever the resultant
consequences to the dignity and efficiency of the public service. Needless to say, there
are instances wherein not only strict legality, but also fairness, justice and
righteousness should be taken into account.43
During the deliberations for the 1987 Constitution, then Constitutional Commissioner
(now retired Supreme Court Chief Justice) Hilario G. Davide, Jr. referred to this Court's
ruling in Aytona and stated that his proposal seeks to prevent a President, whose term
is about to end, from preempting his successor by appointing his own people to
sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the term of the
President, he may prolong his rule indirectly by appointing people to these sensitive
positions, like the commissions, the Ombudsman, the judiciary, so he could perpetuate
himself in power even beyond his term of office; therefore foreclosing the right of his
successor to make appointments to these positions. We should realize that the term
of the President is six years and under what we had voted on, there is no reelection
for him. Yet he can continue to rule the country through appointments made about the
end of his term to these sensitive positions.44
The 1986 Constitutional Commission put a definite period, or an empirical value, on
Aytona's intangible "stratagem to beat the deadline," and also on the act of "preempting
the President's successor," which shows a lack of "good faith, morality and propriety."
Subject to only one exception, appointments made during this period are thus
automatically prohibited under the Constitution, regardless of the appointee's
qualifications or even of the President's motives. The period for prohibited
appointments covers two months before the elections until the end of the President's
term. The Constitution, with a specific exception, ended the President's power to
appoint "two months immediately before the next presidential elections." For an
appointment to be valid, it must be made outside of the prohibited period or, failing
that, fall under the specified exception.
The dissent insists that, during the prohibited period, an appointment should be viewed
in its "narrow sense." In its narrow sense, an appointment is not a process, but is only
an "executive act that the President unequivocally exercises pursuant to his
discretion."45 The dissent makes acceptance of the appointment inconsequential. The
dissent holds that an appointment is void if the appointment is made before the ban
but the transmittal and acceptance are made after the ban. However, the dissent holds
that an appointment is valid, or "efficacious," if the appointment and transmittal are
made before the ban even if the acceptance is made after the ban. In short, the dissent
allows an appointment to take effect during the ban, as long as the President signed
and transmitted the appointment before the ban, even if the appointee never received
the appointment paper before the ban and accepted the appointment only during the
ban.
The dissent's view will lead to glaring absurdities. Allowing the dissent's proposal that
an appointment is complete merely upon the signing of an appointment paper and its
transmittal, excluding the appointee's acceptance from the appointment process, will
lead to the absurdity that, in case of non-acceptance, the position is considered
occupied and nobody else may be appointed to it. Moreover, an incumbent public
official, appointed to another public office by the President, will automatically be
deemed to occupy the new public office and to have automatically resigned from his
first office upon transmittal of his appointment paper, even if he refuses to accept the
new appointment. This will result in chaos in public service.
Even worse, a President who is unhappy with an incumbent public official can simply
appoint him to another public office, effectively removing him from his first office without
due process. The mere transmittal of his appointment paper will remove the public
official from office without due process and even without cause, in violation of the
Constitution.
The dissent's proferred excuse (that the appointee is not alluded to in Section 15,
Article VII) for its rejection of "acceptance by the appointee" as an integral part of the
appointment process ignores the reason for the limitation of the President's power to
appoint, which is .to prevent the outgoing President from continuing to rule the country
indirectly after the end of his term. The 1986 Constitutional Commission installed a
definite cut-off date as an objective and unbiased marker against which this once-in-
every-six-years prohibition should be measured.
The dissent's assertion that appointment should be viewed in its narrow sense (and is
not a process) only during the prohibited period is selective and time-based, and
ignores well-settled jurisprudence. For purposes of complying with the time limit
imposed by the appointment ban, the dissent' s position cuts short the appointment
process to the signing of the appointment paper and its transmittal, excluding the
receipt of the appointment paper and acceptance of the appointment by the appointee.
The President exercises only one kind of appointing power. There is no need to
differentiate the exercise of the President's appointing power outside, just before, or
during the appointment ban. The Constitution allows the President to exercise the
power of appointment during the period not covered by the appointment ban, and
disallows (subject to an exception) the President from exercising the power of
appointment during the period covered by the appointment ban. The concurrence of
all steps in the appointment process is admittedly required for appointments outside
the appointment ban. There is no justification whatsoever to remove acceptance as a
requirement in the appointment process for appointments just before the start of the
appointment ban, or during the appointment ban in appointments falling within the
exception. The existence of the appointment ban makes no difference in the power of
the President to appoint; it is still the same power to appoint. In fact, considering the
purpose of the appointment ban, the concurrence of all steps in the appointment
process must be strictly applied on appointments made just before or during the
appointment ban.
In attempting to extricate itself from the obvious consequences of its selective
application, the dissent glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee to validly assume his
post and discharge the functions of his new office, and thus make the appointment
effective. There can never be an instance where the appointment of an incumbent will
automatically result in his resignation from his present post and his subsequent
assumption of his new position; or where the President can simply remove an
incumbent from his current office by appointing him to another one. I stress that
acceptance through oath or any positive act is still indispensable before any
assumption of office may occur.46 (Emphasis added)
The dissent proposes that this Court ignore well-settled jurisprudence during the
appointment ban, but apply the same jurisprudence outside of the appointment ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a process that
begins with the selection by the appointing power and ends with acceptance of the
appointment by the appointee, stands. As early as the 1949 case of Lacson v. Romero,
this Court laid down the rule that acceptance by the appointee is the last act needed
to make an appointment complete. The Court reiterated this rule in the 1989 case of
Javier v. Reyes. In the 1996 case of Garces v. Court of Appeals, this Court emphasized
that acceptance by the appointee is indispensable to complete an appointment. The
1999 case of Bermudez v. Executive Secretary, cited in the ponencia, affirms this
standing rule in our jurisdiction, to wit:
"The appointment is deemed complete once the last act required of the appointing
authority has been complied with and its acceptance thereafter by the appointee in
order to render it effective."47
The dissent's assertion creates a singular exception to the well-settled doctrine that
appointment is a process that begins with the signing of the appointment paper,
followed by the transmittal and receipt of the appointment paper, and becomes
complete with the acceptance of the appointment. The dissent makes the singular
exception that during the constitutionally mandated ban on appointments, acceptance
is not necessary to complete the appointment. The dissent gives no reason why this
Court should make such singular exception, which is contrary to the express provision
of the Constitution prohibiting the President from making appointments during the ban.
The dissent's singular exception will allow the President, during the ban on
appointments, to remove from office incumbents without cause by simply appointing
them to another office and transmitting the appointment papers the day before the ban
begins, appointments that the incumbents cannot refuse because their acceptance is
not required during the ban. Adoption by this Court of the dissent's singular exception
will certainly wreak havoc on the civil service.
The following elements should always concur in the making of a valid (which should
be understood as both complete and effective) appointment: (1) authority to appoint
and evidence of the exercise of the authority; (2) transmittal of the appointment paper
and evidence of the transmittal; (3) a vacant position at the time of appointment; and
(4) receipt of the appointment paper and acceptance of the appointment by the
appointee who possesses all the qualifications and none of the disqualifications. The
concurrence of all these elements should always apply, regardless of when the
appointment is made, whether outside, just before, or during the appointment ban.
These steps in the appointment process should always concur and operate as a single
process. There is no valid appointment if the process lacks even one step. And, unlike
the dissent's proposal, there is no need to further distinguish between an effective and
an ineffective appointment when an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint officials is provided for in the
Constitution and laws.48 Discretion is an integral part in the exercise of the power of
appointment.49 Considering that appointment calls for a selection, the appointing
power necessarily exercises a discretion. According to Woodbury, J., "the choice of a
person to fill an office constitutes the essence of his appointment," and Mr. Justice
Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving
the exercise of discretion." In Pamantasan ng Lungsod ng Maynila v. Intermediate
Appellate Court we held:
The power to appoint is, in essence, discretionary. The appointing power has the right
of choice which he may exercise freely according to his judgment, deciding for himself
who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint. Appointment involves
an exercise of discretion of whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the choice of the appointee is a
fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an officer, it
(Congress) cannot at the same time limit the choice of the President to only one
candidate. Once the power of appointment is conferred on the President, such
conferment necessarily carries the discretion of whom to appoint. Even on the pretext
of prescribing the qualifications of the officer, Congress may not abuse such power as
to divest the appointing authority, directly or indirectly, of his discretion to pick his own
choice. Consequently, when the qualifications prescribed by Congress can only be met
by one individual, such enactment effectively eliminates the discretion of the appointing
power to choose and constitutes an irregular restriction on the power of appointment. 50
Transmittal
It is not enough that the President signs the appointment paper. There should be
evidence that the President intended the appointment paper to be issued. It could
happen that an appointment paper may be dated and signed by the President months
before the appointment ban, but never left his locked drawer for the entirety of his term.
Release of the appointment paper through the MRO is an unequivocal act that signifies
the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958, Governing the
Organization and Functions of the Executive Office and General Matters of Procedure
Therein. Initially called the Records Division, the MRO functioned as an administrative
unit of the Executive Office. Memorandum Order No. 1 assigned the following
functions:
a. Receive, record and screen all incoming correspondence, telegrams,
documents and papers, and
(1) Forward those of a personal and unofficial nature to the
President's Private Office; and
(2) Distribute those requiring action within the Office or requiring
staff work prior to presentation to the President to the appropriate
units within the Office.
b. Follow up on correspondence forwarded to entities outside the Office to
assure that prompt replies are made and copies thereof furnished the Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal papers of the
President, and keep them in such condition as to meet the documentary and
reference requirements of the Office.
e. Keep and maintain a filing and records system for acts, memoranda,
orders, circulars, correspondence and other documents affecting the Office
for ready reference and use.
f. Issue certified true copies of documents on file in the Division m accordance
with prevailing standard operating procedure.
g. Keep a separate record of communications or documents of confidential
nature.
h. Have custody of the Great Seal of the Republic of the Philippines.
i. Prepare and submit to the approving authority, periodic disposition
schedules of non-current records which have no historical, legal and/or claim
value.
j. With the approval of the Executive Secretary, assist other offices in the
installation or improvement of their records management system; and
k. Give instructions or deliver lectures and conduct practical training to in-
service trainees from other offices and to students from educational
institutions on records management.51
The Records Division was elevated to an Office in 1975, with the addition of
the following functions:
1. Maintain and control vital documents and essential records to
support the functions of the OP in its day to day activities;
2. Monitor the flow of communications' from their time of receipt up
to their dispatch;
3. Service the documentary, information and reference
requirements of top management and action officers of the OP, and
the reference and research needs of other government agencies
and the general public;
4. Ensure the proper storage, maintenance, protection and
preservation of vital and presidential documents, and the prompt
disposal of obsolete and valueless records;
5. Effect the prompt publication/dissemination of laws, presidential
issuances and classified documents;
6. Provide computerized integrated records management support
services for easy reference and retrieval of data and information;
and
7. To be able to represent the OP and OP officials in response to
Subpoena Duces Tecum and Testificandum served by courts and
other investigating bodies.52
For purposes of verification of the appointment paper's existence and authenticity, the
appointment paper must bear the security marks (i.e., handwritten signature of the
President, bar code, etc.) and must be accompanied by a transmittal letter from the
MRO.
The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO, underscores the
purpose of the release of papers through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1)
receive, record, and screen all incoming correspondence, telegrams, documents, and
papers; (2) follow up on correspondence forwarded to entities outside the Office of the
President ("OP") to assure that prompt replies are made and copies thereof furnished
the OP; (3) timely dispatch all outgoing documents and correspondence; (4) have
custody of records of the OP, except personal papers of the President, and keep them
in such condition as to meet the documentary and reference requirements of the Office;
(5) keep and maintain a filing and records system for Acts, Memoranda, Orders,
Circulars, correspondence, and other pertinent documents for ready reference and
use; ( 6) issue certified copies of documents on file as requested and in accordance
with prevailing standard operating procedures; (7) maintain and control vital
documents and essential records to support the OP in its day-to-day activities; (8)
monitor the flow of communications from the time of receipt up to their dispatch; and
(9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of all documents emanating
from Malacañang pursuant to its mandate under Memorandum Order No. 1, Series of
1958. Is the MRO required to follow a specific procedure in dispatching outgoing
documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment paper signed by the
President? A: Yes. It is observed for the release of the original copy of the appointment
paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of the original copy of the
appointment paper signed by the President?
A: After an appointment paper is signed by the President, the Office of the Executive
Secretary (OES) forwards the appointment paper bearing the stamp mark, barcode,
and hologram of the Office of the President, together with a transmittal letter, to the
MRO for official release. Within the same day, the MRO sends the original copy of the
appointment paper together with the transmittal letter and a delivery receipt which
contains appropriate spaces for the name of the addressee, the date released, and the
date received by the addressee. Only a photocopy of the appointment is retained for
the MRO's official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?
A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35,
Series of 2003 and Memorandum Circular No. 133, Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents forwarded to the MRO
for transmittal to various offices?
A: No. We are mandated to immediately release all documents and correspondence
forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is it officially
released by the MRO to the department or agency concerned?
A: The document is released within the day by the MRO if the addressee is within
Metro Manila. For example, in the case of the appointment paper of Dindo Venturanza,
the OES forwarded to the MRO on March 12, 2010 his original appointment paper
dated February 23, 2010 and the transmittal letter dated March 9, 2010 prepared by
the OES. The MRO released his appointment paper on the same day or on March 12,
2010, and was also received by the DOJ on March 12, 2010 as shown by the delivery
receipt.
Q: What is the effect if a document is released by an office or department within
Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to established procedure,
the MRO cannot issue a certified true copy of the same because as far as the MRO is
concerned, it does not exist in our official records, hence, not an official document from
the Malacañang. There is no way of verifying the document's existence and
authenticity unless the document is on file with the MRO even if the person who claims
to have in his possession a genuine document furnished to him personally by the
President. As a matter of fact, it is only the MRO which is authorized to issue certified
true copies of documents emanating from Malacañan being the official custodian and
central repository of said documents. Not even the OES can issue a certified true copy
of documents prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the Malacañang Palace. All
incoming and outgoing documents and correspondence must pass through the MRO.
As the official custodian, the MRO is in charge of the official release of documents.
Q: What if an appointment paper was faxed by the Office of the Executive Secretary
to the appointee, is that considered an official release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the appointment paper
to the appointee. That appointment paper is, at best, only an "advanced copy."
Q: Assuming the MRO has already received the original appointment paper signed by
the President together with the transmittal letter prepared by the OES, you said that
the MRO is bound to transmit these documents immediately, that is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original appointment paper has
already been forwarded to the MRO, recalls the appointment and directs the MRO not
to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO, was there any
instance when it was directed to recall the appointment and retrieve the documents
already transmitted? A: Yes, but only in a few instances. Sometimes, when the MRO
messenger is already in transit or while he is already in the agency or office concerned,
we get a call to hold the delivery. Q: You previously outlined the procedure governing
the transmittal of original copies of appointment papers to the agency or office
concerned. Would you know if this procedure was followed by previous
administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure has been followed.
However, it was unusually disregarded when the appointments numbering more than
800 were made by then President Arroyo in March 2010. The MRO did not even know
about some of these appointments and we were surprised when we learned about
them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than 800 persons in the
month of March alone. How were you able to determine this number?
A: My staff counted all the appointments made by then President An-oyo within the
period starting January 2009 until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by then President
Arroyo in the month of March 2010 compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the graphical
representation thereof.
Q: If those documents will be shown to you, will you be able to recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of presidential appointees
per month since January 2009 until June 2010, and a graphical representation thereof.
Can you go over these documents and tell us the relation of these documents to the
ones you previously mentioned?
A: These are [sic] the Certification with the table of statistics I prepared after we
counted the appointments, as well as the graph thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010, how many appointment
papers and transmittal letters were released through the MRO?
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which were not
released through the MRO but apparently through the OES, there were portions on the
stamp of the OES which supposedly indicated the date and time it was actually
received by the agency or office concerned but were curiously left blank, is this regular
or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt attached to the
transmittal letter is filled out completely because the dates when the original
appointment papers were actually received are very material. It is a standard operating
procedure for the MRO personnel to ask the person receiving the documents to write
his/her name, his signature, and the date and time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers apparently released
by the OES are concerned, what is the actual date when the agency or the appointee
concerned received it?
A: I cannot answer. There is no way of knowing when they were actually received
because the date and time were deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal letters or the
appointment papers is the actual date when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the person who
received these documents did not indicate the date and time when it was received
because these details are very important.53
The MRO's exercise of its mandate does not prohibit the President or the Executive
Secretary from giving the appointment paper directly to the appointee. However, a
problem may arise if an appointment paper is not coursed through the MRO and the
appointment paper is lost or the appointment is questioned. The appointee would then
have to prove that the appointment paper was directly given to him.
Dimaandal's counsel made this manifestation about petitioners' appointment papers
and their transmittal:
Your Honors, we respectfully request for the following markings to be made:
1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO
VENTURANZA dated March 9, 2010 as Exhibit "2-F" for the respondents;
B) The delivery receipt attached in front of the letter bearing the date
March 12, 2010 as Exhibit "2-F-l";
C) The Appointment Paper of DINDO VENTURANZA dated
February 23, 2010 as Exhibit "2-G" for the respondents;
2. A) The Transmittal Letter pertinent to the appointment of CHELOY E.
VELICARIA-GARAFIL turned over to the MRO on May 13, 2010 consisting of
seven (7) pages as Exhibits "2-H," "2-H-l," "2-H-2," "2-H-3," "2-H-4," "2-H-5,"
and "2-H-6" respectively for the respondents;
i. The portion with the name "CHELOY E.
VELICARIAGARAFIL" as "State Solicitor II, Office of the
Solicitor General" located on the first page of the letter as
Exhibit "2-H-7;"
ii. The portion rubber stamped by the Office of the
Executive Secretary located at the back of the last page of
the -letter showing receipt by the DOJ with blank spaces
 for the date and time when it was actually received as
Exhibit "2-H-8;"
B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL
dated March 5, 2010 as Exhibit "2-I" for the respondents;
xxxx
4. A) The Transmittal Letter pertinent to the appointment of EDDIE U.
TAMONDONG dated 8 March 2010 but turned over to the MRO only on May
6, 2010 consisting of two (2) pages as Exhibits "2-L" and "2-L-l" respectively
for the respondents;
(a) The portion with the name "EDDIE U. TAMONDONG" as
"Member, representing the Private Sector, Board of Directors" as
Exhibit "2-L-2";
(b) The portion rubber stamped by the Office of the Executive
Secretary located at the back of the last page of the letter showing
receipt by Ma. Carissa O. Coscuella with blank spaces for the date
and time when it was actually received as Exhibit "2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the appointments of x x x
FRANCISCA BESTOYONG-ROSQUITA dated March 8, 2010 but
turned over to the MRO on May 13, 2010 as Exhibit "2-T" for the
respondents;
xxxx
(c) The portion with the name "FRANCISCA
BESTOYONGROSQUIT A" as "Commissioner, Representing
Region I and the Cordilleras" as Exhibit "2-T-3·"
(d) The portion rubber stamped by the Office of the Executive
Secretary at the back thereof showing receipt by Masli A. Quilaman
of NCIP-QC on March 15, 2010 as Exhibit "2-T-4;"
xxxx
D) The Appointment Paper of FRANCISCA BESTOYONGROSQUIT A dated
March 5, 2010 as Exhibit "2-W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of IRMA A.
VILLANUEVA as Administrator for Visayas, Board of Administrators,
Cooperative Development Authority, Department of Finance dated March 8,
2010 as Exhibit "2-X" for the respondents;
(a) The portion rubber stamped by the Office of the Executive
Secretary at the back thereof showing receipt by DOF with blank
spaces for the date and time when it was actually received as Exhibit
"2-X-1 ;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010 as
Exhibit "2-Y" for the respondents.54
The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and
Retrieval Division of the MRO, supports Dimaandal's counsel's manifestation that the
transmittal of petitioners' appointment papers is questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State Solicitor II
of the Office of the Solicitor General, was her appointment paper released through the
MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal
letter, was merely turned over to the MRO on May 13, 2010. The transmittal letter that
was turned over to the MRO was already stamped "released" by the Office of the
Executive Secretary, but the date and time as to when it was actually received were
unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as member of the Board
of Directors of Subic Bay Metropolitan Authority, was her [sic] appointment paper
released through the MRO?
A: No. His appointment paper dated March 1, 2010, with its corresponding transmittal
letter, was merely turned over to the MRO on May 6, 2010. The transmittal letter that
was turned over to the MRO was already stamped "released" by the Office of the
Executive Secretary, but the date and time as to when it was actually received were
unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed as Commissioner
of the National Commission on Indigenous Peoples, representing Region 1 and the
Cordilleras, was her appointment paper released thru the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal
letter, was merely turned over to the MRO on May 13, 2010. The transmittal letter that
was turned over to the MRO was already stamped "released" by the Office of the
Executive Secretary and received on March 15, 2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as Administrator for Visayas
of the Cooperative Development Authority, was her appointment paper released thru
the MRO?
A: No. Her appointment paper dated March 3, 2010, with its corresponding transmittal
letter, was merely turned over to the MRO on May 4, 2010. The transmittal letter that
was turned over to the MRO was already stamped "released" by the Office of the
Executive Secretary, but the date and time as to when it was actually received were
unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MR0.55
The possession of the original appointment paper is not indispensable to authorize an
appointee to assume office. If it were indispensable, then a loss of the original
appointment paper, which could be brought about by negligence, accident, fraud, fire
or theft, corresponds to a loss of the office.56 However, in case of loss of the original
appointment paper, the appointment must be evidenced by a certified true copy issued
by the proper office, in this case the MRO. Vacant Position
An appointment can be made only to a vacant office. An appointment cannot be made
to an occupied office. The incumbent must first be legally removed, or his appointment
validly terminated, before one could be validly installed to succeed him.57
To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson) occupied the post of
provincial fiscal of Negros Oriental. He was later nominated and confirmed as
provincial fiscal of Tarlac. The President nominated and the Commission on
Appointments confirmed Honorio Romero (Romero) as provincial fiscal of Negros
Oriental as Lacson's replacement. Romero took his oath of office, but Lacson neither
accepted the appointment nor assumed office as provincial fiscal of Tarlac. This Court
ruled that Lacson remained as provincial fiscal of Negros Oriental, having declined the
appointment as provincial fiscal of Tarlac. There was no vacancy to which Romero
could be legally appointed; hence, Romero's appointment as provincial fiscal ofNegros
Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to be complete
involves several steps. First, comes the nomination by the President. Then to make
that nomination valid and permanent, the Commission on Appointments of the
Legislature has to confirm said nomination. The last step is the acceptance thereof by
the appointee by his assumption of office. The first two steps, nomination and
confirmation, constitute a mere offer of a post. They are acts of the Executive and
Legislative departments of the Government. But the last necessary step to make the
appointment complete and effective rests solely with the appointee himself. He may or
he may not accept the appointment or nomination. As held in the case of Borromeo
vs. Mariano, 41 Phil. 327, "there is no power in this country which can compel a man
to accept an office." Consequently, since Lacson has declined to accept his
appointment as provincial fiscal of Tarlac and no one can compel him to do so, then
he continues as provincial fiscal of Negros Oriental and no vacancy in said office was
created, unless Lacson had been lawfully removed as such fiscal of Negros Oriental.59
Paragraph (b ), Section 1 of EO 2 considered as midnight appointments those
appointments to offices that will only be vacant on or after 11 March 2010 even though
the appointments are made prior to 11 March 2010. EO 2 remained faithful to the intent
of Section 15, Article VII of the 1987 Constitution: the outgoing President is prevented
from continuing to rule the country indirectly after the end of his term.
Acceptance by the Qualified Appointee
Acceptance is indispensable to complete an appointment. Assuming office and taking
the oath amount to acceptance of the appointment. 60 An oath of office is a qualifying
requirement for a public office, a prerequisite to the full investiture of the office. 61
Javier v. Reyes62 is instructive in showing how acceptance is indispensable to
complete an appointment. On 7 November 1967, petitioner Isidro M. Javier (Javier)
was appointed by then Mayor Victorino B. Aldaba as the Chief of Police of Malolos,
Bulacan. The Municipal Council confirmed and approved Javier's appointment on the
same date. Javier took his oath of office on 8 November 1967, and subsequently
discharged the rights, prerogatives, and duties of the office. On 3 January 1968, while
the approval of Javier's appointment was pending with the CSC, respondent
Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the . CSC a letter
to recall Javier's appointment. Reyes also designated Police Lt. Romualdo F.
Clemente as Officer-in-Charge of the police department. The CSC approved Javier's
appointment as permanent on 2 May 1968, and even directed Reyes to reinstate
Javier. Reyes, on the other hand, pointed to the appointment of Bayani Bernardo as
Chief of Police of Malolos, Bulacan on 4 September 1967. This Court ruled that Javier's
appointment prevailed over that of Bernardo. It cannot be said that Bernardo accepted
his appointment because he never assumed office or took his oath.
Excluding the act of acceptance from the appointment process leads us to the very evil
which we seek to avoid (i.e., antedating of appointments). Excluding the act of
acceptance will only provide more occasions to honor the Constitutional provision in
the breach. The inclusion of acceptance by the appointee as an integral part of the
entire appointment process prevents the abuse of the Presidential power to appoint. It
is relatively easy to antedate appointment papers and make it appear that they were
issued prior to the appointment ban, but it is more difficult to simulate the entire
appointment process up until acceptance by the appointee.

Petitioners have failed to show compliance with all four elements of a valid
appointment. They cannot prove with certainty that their appointment papers were
transmitted before the appointment ban took effect. On the other hand, petitioners
admit that they took their oaths of office during the appointment ban.

Petitioners have failed to raise any valid ground for the Court to declare EO 2, or any
part of it, unconstitutional. Consequently, EO 2 remains valid and constitutional.

WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are DENIED,
and the petition in G.R. No. 209138 is DISMISSED. The appointments of petitioners
Atty. Cheloy E. Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza (G.R.
No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and
Atty. Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We DECLARE that
Executive Order No. 2 dated 30 July 2010 is VALID and CONSTITUTIONAL.

SO ORDERED.

G.R. No. 180771 April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON
STRAIT, e.g., TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER
CETACEAN SPECIES, Joined in and Represented herein by Human Beings
Gloria Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal
Guardians of the Lesser Life-Forms and as Responsible Stewards of God's
Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of
Energy (DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of
the Department of Environment and Natural Resources (DENR), LEONARDO R.
SIBBALUCA, DENR Regional Director-Region VII and in his capacity as
Chairperson of the Tañon Strait Protected Seascape Management Board, Bureau
of Fisheries and Aquatic Resources (BFAR), DIRECTOR MALCOLM J.
SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES M. BOJOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D.
ENGARCIAL, RAMON YANONG, FRANCISCO LABID, in their personal capacity
and as representatives of the SUBSISTENCE FISHERFOLKS OF THE
MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR
FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS
WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of
Energy (DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department
of Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, in
his capacity as DENR Regional Director-Region VII and as Chairperson of the
Tañon Strait Protected Seascape Management Board, ALAN ARRANGUEZ, in his
capacity as Director - Environmental Management Bureau-Region VII, DOE
Regional Director for Region VIII1 ANTONIO LABIOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent,
SUPPLY OILFIELD SERVICES, INC., Respondents.
CONCURRING OPINION
"Until one has loved an animal,
a part of one 's soul remains unawakened."
Anatole France
LEONEN, J.:
I concur in the result, with the following additional reasons.
I
In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case
in their personal capacity, alleging that they stand to benefit or be injured from the
judgment on the issues. The human petitioners implead themselves in a representative
capacity "as legal guardians of the lesser life-forms and as responsible stewards of
God's Creations."1 They use Oposa v. Factoran, Jr.2 as basis for their claim, asserting
their right to enforce international and domestic environmental laws enacted for their
benefit under the concept of stipulation pour autrui.3As the representatives of Resident
Marine Mammals, the human petitioners assert that they have the obligation to build
awareness among the affected residents of Tañon Strait as well as to protect the
environment, especially in light of the government's failure, as primary steward, to do
its duty under the doctrine of public trust.4
Resident Marine Mammals and the human petitioners also assert that through this
case, this court will have the opportunity to lower the threshold for locus standi as an
exercise of "epistolary jurisdiction."5
The zeal of the human petitioners to pursue their desire to protect the environment and
to continue to define environmental rights in the context of actual cases is
commendable. However, the space for legal creativity usually required for advocacy of
issues of the public interest is not so unlimited that it should be allowed to undermine
the other values protected by current substantive and procedural laws. Even rules of
procedure as currently formulated set the balance between competing interests. We
cannot abandon these rules when the necessity is not clearly and convincingly
presented.
The human petitioners, in G.R. No. 180771, want us to create substantive and
procedural rights for animals through their allegation that they can speak for them.
Obviously, we are asked to accept the premises that (a) they were chosen by the
Resident Marine Mammals of Tañon Strait; (b) they were chosen by a representative
group of all the species of the Resident Marine Mammals; (c) they were able to
communicate with them; and (d) they received clear consent from their animal
principals that they would wish to use human legal institutions to pursue their interests.
Alternatively, they ask us to acknowledge through judicial notice that the interests that
they, the human petitioners, assert are identical to what the Resident Marine Mammals
would assert had they been humans and the legal strategies that they invoked are the
strategies that they agree with.
In the alternative, they want us to accept through judicial notice that there is a
relationship of guardianship between them and all the resident mammals in the
affected ecology.
Fundamental judicial doctrines that may significantly change substantive and
procedural law cannot be founded on feigned representation.
Instead, I agree that the human petitioners should only speak for themselves and
already have legal standing to sue with respect to the issue raised in their pleading.
The rules on standing have already been liberalized to take into consideration the
difficulties in the assertion of environmental rights. When standing becomes too liberal,
this can be the occasion for abuse.
II
Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:
SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical
persons, or entities authorized by law may be parties in a civil action.
The Rules provide that parties may only be natural or juridical persons or entities that
may be authorized by statute to be parties in a civil action.
Basic is the concept of natural and juridical persons in our Civil Code:
ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations,
is inherent in every natural person and is lost only through death. Capacity to act, which
is the power to do acts with legal effect, is acquired and may be lost.
Article 40 further defines natural persons in the following manner:
ARTICLE 40. Birth determines personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided it be born later with the conditions
specified 'in the following article.
Article 44, on the other hand, enumerates the concept of a juridical person:
ARTICLE 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose,
created by law; their personality begins as soon as they have been
constituted according to law;
(3) Corporations, partnerships and associations for private interest or purpose
to which the law grants a juridical personality, separate and distinct from that
of each shareholder, partner or member.
Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply
construe, the provisions of the Rules of Court as well as substantive law to
accommodate Resident Marine Mammals or animals. This we cannot do.
Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in
interest:
SEC. 2. Parties in interest.-A real party in interest is the party who stands to be
benefited or injured by the judgment in the suit, or the party entitled to the avails of the
suit. Unless otherwise authorized by law or these Rules, every action must be
prosecuted or defended in the name of the real party in interest. (2a)6
A litigant who stands to benefit or sustain an injury from the judgment of a case is a
real party in interest.7 When a case is brought to the courts, the real party in interest
must show that another party's act or omission has caused a direct injury, making his
or her interest both material and based on an enforceable legal right.8
Representatives as parties, on the other hand, are parties acting in representation of
the real party in interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil
Procedure:
SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a fiduciary capacity, the beneficiary
shall be included in the title of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an express rust, a guardian, an executor
or administrator, or a party authorized by law or these Rules. An agent acting in his
own name and for the benefit of an undisclosed principal may sue or be sued without
joining the principal except when the contract involves things belonging to the
principal.(3a)9
The rule is two-pronged. First, it defines .a representative as a party who is not bound
to directly or actually benefit or suffer from the judgment, but instead brings a case in
favor of an identified real party in interest. 10 The representative is an outsider to the
cause of action. Second, the rule provides a list of who may be considered as
"representatives." It is not an exhaustive list, but the rule limits the coverage only to
those authorized by law or the Rules of Court.11
These requirements should apply even in cases involving the environment, which
means that for the Petition of the human petitioners to prosper, they must show that
(a) the Resident Marine Mammals are real parties in interest; and (b) that the human
petitioners are authorized by law or the Rules to act in a representative capacity.
The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises,
and other cetacean species inhabiting Tañon Strait." 12 While relatively new in
Philippine jurisdiction, the issue of whether animals have legal standing before courts
has been the subject of academic discourse in light of the emergence of animal and
environmental rights.
In the United States, anim4l rights advocates have managed to establish a system
which Hogan explains as the "guardianship model for nonhuman animals":13
Despite Animal Lovers, there exists a well-established system by which nonhuman
animals may obtain judicial review to enforce their statutory rights and protections:
guardianships. With court approval, animal advocacy organizations may bring suit on
behalf of nonhuman animals in the same way court-appointed guardians bring suit on
behalf of mentally-challenged humans who possess an enforceable right but lack the
ability to enforce it themselves.
In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for
Natural Objects, Christopher D. Stone asserts that the environment should possess
the right to seek judicial redress even though it is incapable of representing itself. While
asserting the rights of
speechless entities such as the environment or nonhuman animals certainly poses
legitimate challenges - such as identifying the proper spokesman -the American legal
system is already well-equipped with a reliable mechanism by which nonhumans may
obtain standing via a judicially established guardianship. Stone notes that other
speechless - and nonhuman - entities such as corporations, states, estates, and
municipalities have standing to bring suit on their own behalf. There is little reason to
fear abuses under this regime as procedures for removal and substitution, avoiding
conflicts of interest, and termination of a guardianship are well established.
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed
possible. The court indicated that AL VA might have obtained standing in its own right
if it had an established history of dedication to the cause of the humane treatment of
animals. It noted that the Fund for Animals had standing and indicated that another
more well-known advocacy organization might have had standing as well. The court
further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established
prior to commencing legal action. ALVA was not the proper plaintiff because it could
not identify previous activities demonstrating its recognized activism for and
commitment to the dispute independent of its desire to pursue legal action. The court's
analysis suggests that a qualified organization with a demonstrated commitment to a
cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.
This Comment advocates a shift in contemporary standing doctrine to empower non-
profit organizations with an established history of dedication to the cause and relevant
expertise to serve as official guardians ad !item on behalf of nonhuman animals
interests. The American legal system has numerous mechanisms for representing the
rights and interests of nonhumans; any challenges inherent in extending these pre-
existing mechanisms to nonhuman animals are minimal compared to an interest in the
proper administration of justice. To adequately protect the statutory rights of nonhuman
animals, the legal system must recognize those statutory rights independent of
humans and provide a viable means of enforcement. Moreover, the idea of a
guardianship for speechless plaintiffs is not new and has been urged on behalf of the
natural environment. 'Such a model is even more compelling as applied to nonhuman
animals, because they are sentient beings with the ability to feel pain and exercise
rational thought. Thus, animals are qualitatively different from other legally protected
nonhumans and therefore have interests deserving direct legal protection.
Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals
threatens the integrity of the federal statutes designed to protect them, essentially
rendering them meaningless. Sensing that laws protecting nonhuman animals would
be difficult to enforce, Congress provided for citizen suit provisions: the most well-
known example is found in the Endangered Species Act (ESA). Such provisions are
evidence of legislative intent to encourage civic participation on behalf of nonhuman
animals. Our law of standing should reflect this intent and its implication that humans
are suitable representatives of the natural environment, which includes nonhuman
animals.14 (Emphasis supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are considered
as similarly situated as individuals who have enforceable rights but, for a legitimate
reason (e.g., cognitive disability), are unable to bring suit for themselves. They are also
similar to entities that by their very nature are incapable of speaking for themselves
(e.g., corporations, states, and others).
In our jurisdiction, persons and entities are recognized both in law and the Rules of
Court as having standing to sue and, therefore, may be properly represented as real
parties in interest. The same cannot be said about animals.
Animals play an important role in households, communities, and the environment.
While we, as humans, may feel the need to nurture and protect them, we cannot go as
far as saying we represent their best interests and can, therefore, speak for them
before the courts. As humans, we cannot be so arrogant as to argue that we know the
suffering of animals and that we know what remedy they need in the face of an injury.
Even in Hogan's discussion, she points out that in a case before the United States
District Court for the Central District of California, Animal Lovers Volunteer Ass'n v.
Weinberger,15 the court held that an emotional response to what humans perceive to
be an injury inflicted on an animal is not within the "zone-of-interest" protected by
law.16Such sympathy cannot stand independent of or as a substitute for an actual injury
suffered by the claimant.17 The ability to represent animals was further limited in that
case by the need to prove "genuine dedication" to asserting and protecting animal
rights:
What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that
standing doctrine further required ALVA to differentiate its genuine dedication to the
humane treatment of animals from the general disdain for animal cruelty shared by the
public at large. In doing so, the court found ALVA 's asserted organizational injury to
be abstract and thus relegated ALVA to the ranks of the "concerned bystander. "
....
In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed
possible. The court indicated that ALVA might have obtained standing in its own right
if it had an established history of dedication to the cause of the humane treatment of
animals. It noted that the Fund for Animals had standing and indicated that another
more well-known advocacy organization might have had standing as well. The court
further concluded that an organization's standing is more than a derivative of its history,
but history is a relevant consideration where organizations are not well-established
prior to commencing legal action. ALVA was not the proper plaintiff because it could
not identify previous activities demonstrating its recognized activism for and
commitment to the dispute independent of its desire to pursue legal action. The court's
analysis suggests that a qualified organization with a demonstrated commitment to a
cause could indeed bring suit on behalf of the speechless in the form of a court-
sanctioned guardianship.18(Emphasis supplied, citation omitted)
What may be argued as being parallel to this concept of guardianship is the principle
of human stewardship over the environment in a citizen suit under the Rules of
Procedure for Environmental Cases. A citizen suit allows any Filipino to act as a
representative of a party who has enforceable rights under environmental laws before
Philippine courts, and is defined in Section 5: .
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors
or generations yet unborn, may file an action to enforce rights or obligations under
environmental laws. Upon the filing of a citizen suit, the court shall issue an order which
shall contain a brief description of the cause of action and the reliefs prayed for,
requiring all interested parties to manifest their interest to intervene in the case within
fifteen (15) days from notice thereof. The plaintiff may publish the order once in a
newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.
There is no valid reason in law or the practical requirements of this case to implead
and feign representation on behalf of animals. To have done so betrays a very
anthropocentric view of environmental advocacy. There is no way that we, humans,
can claim to speak for animals let alone present that they would wish to use our court
system, which is designed to ensure that humans seriously carry their responsibility
including ensuring a viable ecology for themselves, which of course includes
compassion for all living things.
Our rules on standing are sufficient and need not be further relaxed.
In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation
we have given to the rule on standing. While representatives are not required to
establish direct injury on their part, they should only be allowed to represent after
complying with the following: [I]t is imperative for them to indicate with certainty the
injured parties on whose behalf they bring the suit. Furthermore, the interest of those
they represent must be based upon concrete legal rights. It is not sufficient to draw out
a perceived interest from a general, nebulous idea of a potential "injury."20
I reiterate my position in Arigo v. Swift and in Paje v. Casiño 21 regarding this rule
alongside the appreciation of legal standing in Oposa v. Factoran 22 for environmental
cases. In Arigo, I opined that procedural liberality, especially in cases brought by
representatives, should be used with great caution:
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call attention to
environmental concerns in light of emerging international legal principles. While
"intergenerational responsibility" is a noble principle, it should not be used to obtain
judgments that would preclude future generations from making their own assessment
based on their actual concerns. The present generation must restrain itself from
assuming that it can speak best for those who will exist at a different time, under a
different set of circumstances. In essence, the unbridled resort to representative suit
will inevitably result in preventing future generations from protecting their own rights
and pursuing their own interests and decisions. It reduces the autonomy of our children
and our children 's children. Even before they are born, we again restricted their ability
to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in environmental cases
should be allowed only when a) there is a clear legal basis for the representative suit;
b) there are actual concerns based squarely upon an existing legal right; c) there is no
possibility of any countervailing interests existing within the population represented or
those that are yet to be born; and d) there is an absolute necessity for such standing
because there is a threat of catastrophe so imminent that an immediate protective
measure is necessary. Better still, in the light of its costs and risks, we abandon the
precedent all together.23 (Emphasis in the original)
Similarly, in Paje:
A person cannot invoke the court's jurisdiction if he or she has no right or interest to
protect. He or she who invokes the court's jurisdiction must be the "owner of the right
sought to be enforced." In other words, he or she must have a cause of action. An
action may be dismissed on the ground of lack of cause of action if the person who
instituted it is not the real party in interest. 24 The term "interest" under the Rules of
Court must refer to a material interest that is not merely a curiosity about or an "interest
in the question involved." The interest must be present and substantial. It is not a mere
expectancy or a future, contingent interest.
A person who is not a real party in interest may institute an action if he or she is suing
as representative of a .real party in interest. When an action is prosecuted or defended
by a representative, that representative is not and does not become the real party in
interest. The person represented is deemed the real party in interest. The
representative remains to be a third party to the action instituted on behalf of another.
....
To sue under this rule, two elements must be present: "(a) the suit is brought on behalf
of an identified party whose right has been violated, resulting in some form of damage,
and (b) the representative authorized by law or the Rules of Court to represent the
victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A
citizen's suit under this rule allows any Filipino citizen to file an action for the
enforcement of environmental law on behalf of minors or generations yet unborn. It is
essentially a representative suit that allows persons who are not real parties in interest
to institute actions on behalf of the real party in interest.
The expansion of what constitutes "real party in interest" to include minors and
generations yet unborn is a recognition of this court's ruling in Oposa v. Factoran. This
court recognized the capacity of minors (represented by their parents) to file a class
suit on behalf of succeeding generations based on the concept of intergenerational
responsibility to ensure the future generation's access to and enjoyment of [the]
country's natural resources.
To allow citizen's suits to enforce environmental rights of others, including future
generations, is dangerous for three reasons:
First, they run the risk of foreclosing arguments of others who are unable to take part
in the suit, putting into. question its representativeness. Second, varying interests may
potentially result in arguments that are bordering on political issues, the resolutions of
which do not fall upon this court. Third, automatically allowing a class or citizen's suit
on behalf of minors and generations yet unborn may result in the oversimplification of
what may be a complex issue, especially in light of the impossibility of determining
future generation's true interests on the matter.
In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will
decide based on their evidence and arguments. Any decision by the court will be
binding upon the beneficiaries, which in this case are the minors and the future
generations. The court's decision will be res judicata upon them and conclusive upon
the issues presented.25
The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims
lies in its potential to diminish the value of legitimate environmental rights. Extending
the application of "real party in interest" to the Resident Marine Mammals, or animals
in general, through a judicial pronouncement will potentially result in allowing petitions
based on mere concern rather than an actual enforcement of a right. It is impossible
for animals to tell humans what their concerns are. At best, humans can only surmise
the extent of injury inflicted, if there be any. Petitions invoking a right and seeking legal
redress before this court cannot be a product of guesswork, and representatives have
the responsibility to ensure that they bring "reasonably cogent, rational, scientific, well-
founded arguments"26 on behalf of those they represent.
Creative approaches to fundamental problems should be welcome. However, they
should be considered carefully so that no unintended or unwarranted consequences
should follow. I concur with the approach of Madame Justice Teresita J. Leonardo-De
Castro in her brilliant ponencia as it carefully narrows down the doctrine in terms of
standing. Resident Marine Mammals and the human petitioners have no legal standing
to file any kind of petition.
However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas
Fisherfolk Development Center,. Engarcial, Yanong, and Labid, have standing both as
real parties in interest and as representatives of subsistence fisherfolks of the
Municipalities of Aloguinsan and Pinamungahan, Cebu, and their families, and the
present and future generations of Filipinos whose rights are similarly affected. The
activities undertaken under Service Contract 46 (SC-46) directly affected their source
of livelihood, primarily felt through the significant reduction of their fish harvest. 27 The
actual, direct, and material damage they suffered, which has potential long-term effects
transcending generations, is a proper subject of a legal suit.
III
In our jurisdiction, there is neither reason nor any legal basis for the concept of implied
petitioners, most especially when the implied petitioner was a sitting President of the
Republic of the Philippines. In G.R. No. 180771, apart from adjudicating unto
themselves the status of "legal guardians" of whales, dolphins, porpoises, and other
cetacean species, human petitioners also impleaded Former President Gloria
Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and
undertaking in the ASEAN Charter to protect Tañon Strait."28
No person may implead any other person as a co-plaintiff or co-petitioner without his
or her consent. In our jurisdiction, only when there is a party that should have been a
necessary party but was unwilling to join would there be an allegation as to why that
party has been omitted. In Rule 3, Section 9 of the 1997 Rules of Civil Procedure:
SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in
which a claim is asserted a necessary party is not joined, the pleader shall set forth his
name, if known, and shall state why he is omitted. Should the court find the reason for
the omission unmeritorious, it may order the inclusion of the omitted necessary party
if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from proceeding in
the action, and the judgment rendered therein shall be without prejudice to the rights
of such necessary party.29
A party who should have been a plaintiff or petitioner but whose consent cannot be
obtained should be impleaded as a defendant in the nature of an unwilling co-plaintiff
under Rule 3, Section 10 of the 1997 Rules of Civil Procedure:
SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as
plaintiff can not be obtained, he may be made a defendant and the reason therefor
shall be stated in the complaint.30
The reason for this rule is plain: Indispensable party plaintiffs who should be part of
the action but who do not consent should be put within the jurisdiction of the court
through summons or other court processes. Petitioners. should not take it upon
themselves to simply imp lead any party who does not consent as a petitioner. This
places the unwilling co-petitioner at the risk of being denied due process.
Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As
a co-equal constitutional department, we cannot assume that the President needs to
enforce policy directions by suing his or her alter-egos. The procedural situation
caused by petitioners may have gained public attention, but its legal absurdity borders
on the contemptuous. The Former President's name should be stricken out of the title
of this case.
IV
I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.
SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated
Protected Areas System Act of 1992, and Presidential Decree No. 1234, 31 which
declared Tañon Strait as a protected seascape. It is unconstitutional because it violates
the fourth paragraph of Article XII, Section 2 of the Constitution.
V
Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated
Article XII, Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum
Exploration Co., Ltd. (JAPEX) is 100% Japanese-owned.32 It further asserts that SC-
46 cannot be validly classified as a technical and financial assistance agreement
executed under Article XII, Section 2, paragraph 4 of the 1987 Constitution. 33 Public
respondents counter that SC-46 does not fall under the coverage of paragraph 1, but
is a validly executed contract under paragraph 4. 34· Public respondents further aver
that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central
Visayas Fisherfolk Development Center's right to preferential use of communal marine
and fishing resources.35
VI
Article XII, Section 2 of the 1987 Constitution states:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the State. With the exception. of
agricultural lands, all other natural resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities, or it may
enter into co-production, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose capital is
owned by such citizens. Such agreements may be for a period not exceeding twenty-
five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for irrigation, water
supply fisheries, or industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial
sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen and
fish-workers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall promote the
development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance
with this provision, within thirty days from its execution. (Emphasis supplied)
I agree that fully foreign-owned corporations may participate in the exploration,
development, and use of natural resources, but only through either financial
agreements or technical ones. This is the clear import of the words "either financial or
technical assistance agreements." This is also
the clear result if we compare the 1987 constitutional provision with the versions in the
1973 and 1935 Constitution:
1973 CONSTITUTION
ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION
SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any
of the natural resources of the Philippines shall be limited to citizens of the Philippines,
or to corporations or association at least sixty per centum of the capital of which is
owned by such citizens. The Batasang Pambansa, in the national interest, may allow
such citizens, corporations, or associations to enter into service contracts for financial,
technical, management, or other forms of assistance with any foreign person or entity
for the exploitation, development, exploitation, or utilization of any of the natural
resources. Existing valid and binding service contracts for financial, the technical,
management, or other forms of assistance are hereby recognized as such. (Emphasis
supplied)
1935 CONSTITUTION
ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and
other natural resources of the Philippines belong to the State, and their disposition,
exploitation, development, or utilization shall be limited to citizens of the Philippines,
or to corporations or associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant, lease, or concession at the
time of the inauguration of the Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of
the natural resources shall be granted for a period exceeding twenty-five years,
renewable for another twenty-five years, except as to water rights for irrigation, water
supply, fisheries, or industrial uses other than the development of water power, in
which cases beneficial use may be the measure and the limit of the grant.
The clear text of the Constitution in light of its history prevails over any attempt to infer
interpretation from the Constitutional Commission deliberations. The constitutional
texts are the product of a full sovereign act: deliberations in a constituent assembly
and ratification. Reliance on recorded discussion of Constitutional Commissions, on
the other hand, may result in dependence on incomplete authorship; Besides, it opens
judicial review to further subjectivity from those who spoke during the Constitutional
Commission deliberations who may not have predicted how their words will be used.
It is safer that we use the words already in the Constitution. The Constitution was their
product. Its words were read by those who ratified it. The Constitution is what society
relies upon even at present.
SC-46 is neither a financial assistance nor a technical assistance agreement.
Even supposing for the sake of argument that it is, it could not be declared valid in light
of the standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36
Such service contracts may be entered into only with respect to minerals, petroleum
and other mineral oils. The grant thereof is subject to several safeguards, among which
are these requirements:
(1) The service contract shall be crafted m accordance with a general law that
will set standard or uniform terms, conditions and requirements, presumably
to attain a certain uniformity in provisions and avoid the possible insertion of
terms disadvantageous to the country.
(2) The President shall be the signatory for the government because,
supposedly before an agreement is presented to the President for signature,
it will have been vetted several times over at different levels to ensure that it
conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it
to Congress to give that branch of government an opportunity to look over the
agreement and interpose timely objections, if any.37 (Emphasis in the original,
citation omitted)
Based on the standards pronounced in La Bugal, SC-46' S validity must be tested
against three important points: (a) whether SC-46 was crafted in accordance with a
general law that provides standards, terms, and conditions; (b) whether SC-46 was
signed by the President for and on behalf of the government; and (c) whether it was
reported by the President to Congress within 30 days of execution.
VII
The general law referred to as a possible basis for SC-46's validity is Presidential
Decree No. 87 or the Oil Exploration and Development Act of 1972.1âwphi1 It is my
opinion that this law is unconstitutional in that it allows service contracts, contrary to
Article XII, Section 2 of the 1987 Constitution:
The President may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum, and other mineral oils according to the general terms
and conditions provided by law, based on real contributions to the economic growth
and general welfare of the country. In such agreements, the State shall promote the
development and use of local scientific and technical resources. (Emphasis supplied)
The deletion of service contracts from the enumeration of the kind of agreements the
President may enter into with foreign-owned corporations for exploration and utilization
of resources means that service contracts are no longer allowed by the Constitution.
Pursuant to Article XVIII, Section 3 of the 1987 Constitution, 38 this inconsistency
renders the law invalid and ineffective.
SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion
emphasizes an important point, which is that SC-46 did not merely involve exploratory
activities, but also provided the rights and obligations of the parties should it be
discovered that there is oil in commercial quantities in the area. The Tañon Strait being
a protected seascape under Presidential Decree No. 1234 39 requires that the
exploitation and utilization of energy resources from that area are explicitly covered by
a law passed by Congress specifically for that purpose, pursuant to Section 14 of
Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992:
SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in
Section 2, hereof, protected areas, except strict nature reserves and natural parks,
may be subjected to exploration only for the purpose of gathering information on
energy resources and only if such activity is carried out with the least damage to
surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any
exploitation and utilization of energy resources found within NIP AS areas shall be
allowed only through a law passed by Congress.40 (Emphasis supplied)
No law was passed by Congress specifically providing the standards, terms, and
conditions of an oil exploration, extraction, and/or utilization for Tañon Strait and,
therefore, no such activities could have been validly undertaken under SC-46. The
National Integrated Protected Areas System Act of 1992 is clear that exploitation and
utilization of energy resources in a protected seascape such as Tañon Strait shall only
be allowed through a specific law.
VIII
Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary
to the requirement set by paragraph 4 of Article XII, Section 2 for service contracts
involving the exploration of petroleum. SC-46 was entered into by then Department of
Energy Secretary Vicente S. Perez, Jr., on behalf of the government. I agree with the
Main Opinion that in cases where the Constitution or law requires the President to act
personally on the matter, the duty cannot be delegated to another public official. 41 La
Bugal highlights the importance of the President's involvement, being one of the
constitutional safeguards against abuse and corruption, as not mere formality:
At this point, we sum up the matters established, based on a careful reading of the
ConCom deliberations, as follows:
• In their deliberations on what was to become paragraph 4, the framers used
the term service contracts in referring to agreements x x x involving either
technical or financial assistance. • They spoke of service contracts as the
concept was understood in the 1973 Constitution.
• It was obvious from their discussions that they were not about to ban or
eradicate service contracts.
• Instead, they were plainly crafting provisions to. put in place safeguards that
would eliminate or m minimize the abuses prevalent during the marital law
regime.42 (Emphasis in the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo
was involved in the signing or execution of SC-46. The failure to comply with this
constitutional requirement renders SC-46 null and void.
IX
Public respondents also failed to show that Congress was subsequently informed of
the execution and existence of SC-46. The reporting requirement is an equally
important requisite to the validity of any service contract involving the exploration,
development, and utilization of Philippine petroleum. Public respondents' failure to
report to Congress about SC-46 effectively took away any opportunity for the legislative
branch to scrutinize its terms and conditions.
In sum, SC-46 was executed and implemented absent all the requirements provided
under paragraph 4 of Article XII, Section 2. It is, therefore, null and void.
X Environmental Compliance Certificate (ECC) under the Philippine Environment Impact
I am of the view that SC-46, aside from not having complied with the 1987 Constitution,
is also null and void for being violative of environmental laws protecting Tañon Strait.
In particular, SC-46 was implemented despite falling short of the requirements of the
National Integrated Protected Areas System Act of 1992.
As a protected seascape under Presidential Decree No. 1234, 43 Tañon Strait is
covered by the National Integrated Protected Areas System Act of 1992. This law
declares as a matter of policy:
SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on
all components of the natural environment particularly the effect of increasing
population, resource exploitation and industrial advancement and recognizing the
critical importance of protecting and maintaining the natural biological and physical
diversities of the environment notably on areas with biologically unique features to
sustain human life and development, as well as plant and animal life, it is hereby
declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the
establishment of a comprehensive system of integrated protected areas within the
classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common
ecological values that may be incorporated into a holistic plan representative of our
natural heritage; that effective administration of these areas is possible only through
cooperation among national government, local and concerned private organizations;
that the use and enjoyment of these protected areas must be consistent with the
principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System
(NIPAS), which shall encompass outstanding remarkable areas and biologically
important public lands that are habitats of rare and endangered species of plants and
animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or
marine, all of which shall be designated as "protected areas." 44 (Emphasis supplied)
Pursuant to this law, any proposed activity in Tañon Strait must undergo an
Environmental Impact Assessment:
SEC. 12. Environmental Impact Assessment. - Proposals for activities which are
outside the scope of the management plan for protected areas shall be subject to an
environmental impact assessment as required by law before they are adopted, and the
results thereof shall be taken into consideration in the decision-making
process.45(Emphasis supplied)
The same provision further requires that an Environmental Compliance Certificate be
secured under the Philippine Environmental Impact Assessment System before arty
project is implemented:
No actual implementation of such activities shall be allowed without the required
Assessment (EIA) system. In instances where such activities are allowed to be
undertaken, the proponent shall plan and carry them out in such manner as will
minimize any adverse effects and take preventive and remedial action when
appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)
In projects involving the exploration or utilization of energy resources, the National
Integrated Protected Areas System Act of 1992 additionally requires that a program
be approved by the Department of Environment and Natural Resources, which shall
be publicly accessible. The program shall also be submitted to the President, who in
turn will recommend the program to Congress. Furthermore, Congress must enact a generation in filing any action in our courts of law to claim any of our fundamental rights
law specifically allowing the exploitation of energy resources found within a protected to a healthful ecology. In this way and with candor and courage, we fully shoulder the
area such as Tañon Strait: responsibility deserving of the grace and power endowed on our species.

SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in ACCORDINGLY, I vote:
Section 2, hereof, protected areas, except strict nature reserves and natural parks,
may be subjected to exploration only for the purpose of gathering information on (a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the
energy resources and only if such activity is carried out with the least damage to name of Former President Gloria Macapagal-Arroyo from the title of this case;
surrounding areas. Surveys shall be conducted only in accordance with a program
approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any (b) to GRANT G.R. No. 181527; and
exploitation and utilization of energy resources found within NIPAS areas shall be
allowed only through a taw passed by Congress.47 (Emphasis supplied) (c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the
1987 Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.
Public respondents argue that SC-46 complied with the procedural requirements of
obtaining an Environmental Compliance Certificate.48 At any rate, they assert that the MARVIC M.V.F. LEONEN
activities covered by SC-46 fell under Section 14 of the National Integrated Protected Associate Justice
Areas System Act of 1992, which they interpret to be an exception to Section 12. They
argue that the Environmental Compliance Certificate is not a strict requirement for the
validity of SC-46 since (a) the Tañon Strait is not a nature' reserve or natural park; (b)
the exploration was merely for gathering information; and ( c) measures were in place
to ensure that the exploration caused the least possible damage to the area.49

Section 14 is not an exception to Section 12, but instead provides additional

requirements for cases involving Philippine energy resources. The National Integrated
Protected Areas System Act of 1992 was enacted to recognize the importance of
protecting the environment in light of resource exploitation, among others. 50 Systems
are put in place to secure for Filipinos local resources under the most favorable
conditions. With the status of Tañon Strait as a protected seascape, the institution of
additional legal safeguards is even more significant.

Public respondents did not validly obtain an Environmental Compliance Certificate for
SC-46. Based on the records, JAPEX commissioned an environmental impact
evaluation only in the second subphase of its project, with the Environmental
Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007. 51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without
any environmental assessment contrary to Section 12 of the National Integrated
Protected Areas System Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As
sentient species, we do not lack in the wisdom or sensitivity to realize that we only
borrow the resources that we use to survive and to thrive. We are not incapable of
mitigating the greed that is slowly causing the demise of our planet. Thus, there is no
need for us to feign representation of any other species or some imagined unborn
 G.R. No. 189028. July 16, 2013.*
NATIONAL ARTIST FOR LITERATURE VIRGILIO ALMARIO, NATIONAL
ARTIST FOR LITERATURE BIENVENIDO LUMBERA, NATIONAL ARTIST
FOR VISUAL ARTS (PAINTING) BENEDICTO CABRERA, NATIONAL ARTIST
FOR VISUAL ARTS (SCULPTURE) NAPOLEON ABUEVA, NATIONAL ARTIST
FOR VISUAL ARTS (PAINTING AND SCULPTURE) ARTURO LUZ, NATIONAL
ARTIST FOR PRODUCTION DESIGN SALVADOR BERNAL, UNIVERSITY
PROFESSOR EMERITUS GEMINO ABAD, DEAN MARVIC M.V.F. LEONEN
(UP COLLEGE OF LAW), DEAN DANILO SILVESTRE (UP COLLEGE OF
ARCHITECTURE), DEAN ROLAND TOLENTINO (UP COLLEGE OF MASS
COMMUNICATION), PROF. JOSE DALISAY, DR. ANTON JUAN, DR.
ALEXANDER CORTEZ, DR. JOSE NEIL GARCIA, DR. PEDRO JUN CRUZ
REYES, PROF. JOSE CLAUDIO GUERRERO, PROF. MICHAEL M. COROZA,
PROF. GERARD LICO, PROF. VERNE DE LA PENA, PROF. MARIAN ABUAN,
PROF. THEODORE O. TE, DR. CRISTINA PANTOJA-HIDALGO, PROF. JOSE
WENDELL CAPILI, PROF. SIR ANRIAL TIATCO, PROF. NICOLO DEL
CASTILLO, PROF. HORACIO DUMANLIG, PROF. DANTON REMOTO, PROF.
PRISCELINA PATAJO-LEGASTO, PROF. BELEN CALINGACION, PROF.
AMIEL Y. LEONARDIA, PROF. VIM NADERA, PROF. MARILYN CANTA,
PROF. CECILIA DELA PAZ, PROF. CHARLSON ONG, PROF. CLOD MARLON
YAMBAO, PROF. KENNETH JAMANDRE, PROF. JETHRO JOAQUIN, ATTY.
F.D. NICOLAS B. PICHAY, ATTY. ROSE BEATRIX ANGELES, MR.
FERNANDO JOSEF, MS. SUSAN S. LARA, MR. ALFRED YUSON, MS. JING
PANGANIBAN-MENDOZA, MR. ROMULO BAQUIRAN, JR., MR. CARLJOE
JAVIER, MS. REBECCA T. ANONUEVO, MR. JP ANTHONY D. CUNADA, MS.
LEAH NAVARRO, MR. MARK MEILLY, MR. VERGEL O. SANTOS, MR. GIL
OLEA MENDOZA, MR. EDGAR C. SAMAR, MS. CHRISTINE BELLEN, MR.
ANGELO R. LACUESTA, MS. ANNA MARIA KATIGBAK-LACUESTA, MR. LEX
LEDESMA, MS. KELLY PERIQUET, MS. CARLA PACIS, MR. J. ALBERT
GAMBOA, MR. CESAR EVANGELISTA BUENDIA, MR. PAOLO ALCAZAREN,
MR. ALWYN C. JAVIER, MR. RAYMOND MAGNO GARLITOS, MS. GANG
BADOY, MR. LESLIE BOCOBO, MS. FRANCES BRETANA, MS. JUDITH
TORRES, MS. JANNETTE PINZON, MS. JUNE POTICAR-DALISAY, MS.
CAMILLE DE LA ROSA, MR. JAMES LADIORAY, MR. RENATO
CONSTANTINO, JR., and CONCERNED ARTISTS OF THE PHILIPPINES
(CAP), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF
THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE CULTURAL
CENTER OF THE PHILIPPINES, THE NATIONAL COMMISSION ON
CULTURE AND THE ARTS, MS. CECILE GUIDOTE-ALVAREZ, MR. CARLO
MAGNO JOSE CAPARAS,1 MR. JOSE MORENO, MR. FRANCISCO MAÑOSA,
AND ALL PERSONS, PUBLIC AND PRIVATE, ACTING UNDER THEIR
INSTRUCTIONS, DIRECTION, CONTROL AND SUPERVISION IN RELATION
TO THE CONFERMENT OF THE ORDER OF THE NATIONAL ARTIST AND
THE RELEASE OF FUNDS IN RELATION TO THE CONFERMENT OF THE
HONORS AND PRIVILEGES OF THE ORDER OF NATIONAL ARTISTS ON
RESPONDENTS GUIDOTE-ALVAREZ, CAPARAS, MORENO AND MAÑOSA,
respondents.
Remedial Law; Civil Procedure; Parties; The parties who assail the
constitutionality or legality of a statute or an official act must have a direct and
personal interest.—The parties who assail the constitutionality or legality of a
statute or an official act must have a direct and personal interest. They must show
not only that the law or any governmental act is invalid, but also that they
sustained or are in immediate danger of sustaining some direct injury as a result
of its enforcement, and not merely that they suffer thereby in some indefinite way.
They must show 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 burdens or penalties by reason of the statute or act complained of.
Constitutional Law; Equal Protection of the Law; No real and substantial
distinction between respondents and petitioner Abad has been shown that would
justify deviating from the laws, guidelines and established procedures, and placing
respondents in an exceptional position. The undue classification was not germane
to the purpose of the law. Instead, it contradicted the law and well-established
guidelines, rules and regulations meant to carry the law into effect.—Among the
other petitioners, Prof. Gemino Abad presents a unique valid personal and
substantial interest. Like respondents Caparas, Mañosa and Moreno, he was
among the 87 nominees for the 2009 Order of National Artists. Like respondent
Moreno, he made it to the preliminary shortlist. As he did not make it to the second
shortlist, he was not considered by the Final Deliberation Panel, more so by the
former President. It should be recalled too that respondent Guidote-Alvarez was
disqualified to be nominated for being the Executive Director of the NCCA at that
time while respondents Mañosa and Caparas did not make it to the preliminary
shortlist and respondent Moreno was not included in the second shortlist.
Yet, the four of them were treated differently and considered favorably when
they were exempted from the rigorous screening process of the NCCA and the CCP
and conferred the Order of National Artists. The Committee on Honors and the
former President effectively treated respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno as a preferred class. The special treatment accorded to
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno fails to pass rational
scrutiny. No real and substantial distinction between respondents and petitioner
Abad has been shown that would justify deviating from the laws, guidelines and
established procedures, and placing respondents in an exceptional position. The
undue classification was not germane to the purpose of the law. Instead, it
contradicted the law and well-established guidelines, rules and regulations meant
to carry the law into effect. While petitioner Abad cannot claim entitlement to the
Order of National Artists, he is entitled to be given an equal opportunity to vie for
that honor. In view of the foregoing, there was a violation of petitioner Abad’s right
to equal protection, an interest that is substantial enough to confer him standing
in this case.
Remedial Law; Civil Procedure; Taxpayer’s Suit; A taxpayer’s suit is proper
only when there is an exercise of the spending or taxing power of the Congress.—As
regards the other concerned artists and academics as well as the CAP, their claim
of deep concern for the preservation of the country’s rich cultural and artistic
heritage, while laudable, falls short of the injury in fact requirement of standing.
Their assertion constitutes a generalized grievance shared in a substantially equal
measure by all or a large class of citizens. Nor can they take refuge in their status
as taxpayers as the case does not involve any illegal appropriation or taxation. A
taxpayer’s suit is proper only when there is an exercise of the spending or taxing
power of the Congress.
Same; Prohibition; Injunction; It has been held that the remedies of
prohibition and injunction are preventive and, as such, cannot be availed of to
restrain an act that is already fait accompli.—The present action is a petition for
prohibition, certiorari, injunction, restraining order and all other legal, just and
equitable reliefs. It has been held that the remedies of prohibition and injunction
are preventive and, as such, cannot be availed of to restrain an act that is
already fait accompli. Where the act sought to be prohibited or enjoined has
already been accomplished or consummated, prohibition or injunction becomes
moot. Nevertheless, even if the principal issue is already moot, this Court may still
resolve its merits for the future guidance of both bench and bar. Courts will decide
a question otherwise moot and academic if it is “capable of repetition, yet evading
review.”
Presidency; Order of National Artists; The President’s discretion in the
conferment of the Order of National Artists should be exercised in accordance with
the duty to faithfully execute the relevant laws.—In the matter of the conferment of
the Order of National Artists, the President may or may not adopt the
recommendation or advice of the NCCA and the CCP Boards. In other words, the
advice of the NCCA and the CCP is subject to the President’s discretion.
Nevertheless, the President’s discretion on the matter is not totally unfettered, nor
the role of the NCCA and the CCP Boards meaningless. Discretion is not a free-
spirited stallion that runs and roams wherever it pleases but is reined in to keep
it from straying. In its classic formulation, “discretion is not unconfined and
vagrant” but “canalized within banks that keep it from overflowing.” The
President’s power must be exercised in accordance with existing laws. Section 17,
Article VII of the Constitution prescribes faithful execution of the laws by the
President: Sec. 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied.) The President’s discretion in the conferment of
the Order of National Artists should be exercised in accordance with the duty to
faithfully execute the relevant laws. The faithful execution clause is best construed
as an obligation imposed on the President, not a separate grant of power. It simply
underscores the rule of law and, corollarily, the cardinal principle that the
President is not above the laws but is obliged to obey and execute them. This is
precisely why the law provides that “[a]dministrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the laws or the
Constitution.”
Administrative Regulations; Statutes; An administrative regulation adopted
pursuant to law has the force and effect of law.—We have held that an
administrative regulation adopted pursuant to law has the force and effect of law.
Thus, the rules, guidelines and policies regarding the Order of National Artists
jointly issued by the CCP Board of Trustees and the NCCA pursuant to their
respective statutory mandates have the force and effect of law. Until set aside, they
are binding upon executive and administrative agencies, including the President
himself/herself as chief executor of laws.
Presidency; Order of National Artists; In view of the various stages of
deliberation in the selection process and as a consequence of his/her duty to
faithfully enforce the relevant laws, the discretion of the President in the matter of
the Order of National Artists is confined to the names submitted to him/her by the
National Commission for Culture and Arts (NCCA) and the Cultural Center of the
Philippines (CCP) Boards.—In view of the various stages of deliberation in the
selection process and as a consequence of his/her duty to faithfully enforce the
relevant laws, the discretion of the President in the matter of the Order of National
Artists is confined to the names submitted to him/her by the NCCA and the CCP
Boards. This means that the President could not have considered conferment of
the Order of National Artists on any person not considered and recommended by
the NCCA and the CCP Boards. That is the proper import of the provision of
Executive Order No. 435, s. 2005, that the NCCA and the CCP “shall advise the
President on the conferment of the Order of National Artists.” Applying this to the
instant case, the former President could not have properly considered respondents
Guidote-Alvarez, Caparas, Mañosa and Moreno, as their names were not
recommended by the NCCA and the CCP Boards. Otherwise, not only will the
stringent selection and meticulous screening process be rendered futile, the
respective mandates of the NCCA and the CCP Board of Trustees under relevant
laws to administer the conferment of Order of National Artists, draft the rules and
regulations to guide its deliberations, formulate and implement policies and plans,
and undertake any and all necessary measures in that regard will also become
meaningless.
Same; Same; Equal Protection of the Law; There was a violation of the equal
protection clause of the Constitution when the former President gave preferential
treatment to respondents Guidote-Alvarez, Caparas, Mañosa and Moreno; The
conferment of the Order of National Artists on said respondents was therefore made
with grave abuse of discretion and should be set aside.—There was a violation of
the equal protection clause of the Constitution when the former President gave
preferential treatment to respondents Guidote Alvarez, Caparas, Mañosa and
Moreno. The former President’s constitutional duty to faithfully execute the laws
and observe the rules, guidelines and policies of the NCCA and the CCP as to the
selection of the nominees for conferment of the Order of National Artists proscribed
her from having a free and uninhibited hand in the conferment of the said award.
The manifest disregard of the rules, guidelines and processes of the NCCA and the
CCP was an arbitrary act that unduly favored respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno. The conferment of the Order of National Artists on
said respondents was therefore made with grave abuse of discretion and should be
set aside.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Mary Grace C. Panganiban-Mendoza for petitioners.
Kapunan, Lotilla, Garcia & Castillo Law Offices for respondent.
The Government Corporate Counsel for respondent Cultural Center of the
Philippines.
M.M. Lazaro & Associates for private respondent Carlo Magno Jose Caparas.
Verano Law Firm for respondent Francisco T. Mañosa.
LEONARDO-DE CASTRO, J.:
Art has traditionally been viewed as the expression of everything that is true,
good and beautiful. As such, it is perceived to evoke and produce a spirit of
harmony. Art is also considered as a civilizing force, a catalyst of nation-building.
The notion of art and artists as privileged expressions of national culture helped
shape the grand narratives of the nation and shared symbols of the people. The
artist does not simply express his/her own individual inspiration but articulates
the deeper aspirations of history and the soul of the people.2 The law recognizes
this role and views art as something that “reflects and shapes values, beliefs,
aspirations, thereby defining a people’s national identity.” 3 If unduly politicized,
however, art and artists could stir controversy and may even cause discord, as
what happened in this case.
The Antecedents
History of the Order of National Artists
On April 27, 1972, former President Ferdinand E. Marcos issued Proclamation
No. 10014 and, upon recommendation of the Board of Trustees of the Cultural
Center of the Philippines (CCP), created the category of Award and Decoration of
National Artist to be awarded to Filipinos who have made distinct contributions to
arts and letters. In the same issuance, Fernando Amorsolo was declared as the
first National Artist.
On May 15, 1973, Proclamation No. 11445 was issued. It amended
Proclamation No. 1001 “by creating a National Artists Awards Committee” that
would “administer the conferment of the category of National Artist” upon
deserving Filipino artists. The Committee, composed of members of the Board of
Trustees of the CCP, was tasked to “draft the rules to guide its deliberations in the
choice of National Artists, to the end that those who have created a body of work
in the arts and letters capable of withstanding the test of time will be so
recognized.”
The authority of the National Artists Awards Committee to administer the
conferment of the National Artist Award was again reiterated in Presidential
Decree No. 2086issued on June 7, 1973.
On April 3, 1992, Republic Act No. 7356, otherwise known as the Law Creating
the National Commission for Culture and the Arts, was signed into law. It
established the National Commission for Culture and the Arts (NCCA) and gave
it an extensive mandate over the development, promotion and preservation of the
Filipino national culture and arts and the Filipino cultural heritage. The NCCA
was tasked with the following:
Sec. 8. The Commission.—A National Commission for Culture and
Arts is hereby created to formulate policies for the development of culture
and arts; implement these policies in coordination with affiliated cultural
agencies; coordinate the implementation of programs of these affiliated
agencies; administer the National Endowment Fund for Culture and Arts
(NEFCA); encourage artistic creation within a climate of artistic freedom;
develop and promote the Filipino national culture and arts; and preserve
Filipino cultural heritage. The Commission shall be an independent
agency. It shall render an annual report of its activities and achievements
to the President and to Congress.
Among the specific mandates of the NCCA under Republic Act No. 7356 is to
“extend recognition of artistic achievement through awards, grants and services to
artists and cultural groups which contribute significantly to the Filipino’s cultural
legacy.”7 In connection with this mandate, the NCCA is vested with the power to
“advise the President on matters pertaining to culture and the arts, including the
creation of a special decoration or award, for persons who have significantly
contributed to the development and promotion of Philippine culture and arts.”8
As both the CCP Board of Trustees and the NCCA have been mandated by law
to promote, develop and protect the Philippine national culture and the arts, and
authorized to give awards to deserving Filipino artists, the two bodies decided to
team up and jointly administer the National Artists Award. 9 Thereafter, they
reviewed the guidelines for the nomination, selection and administration of the
National Artists Award. Pursuant to their respective powers to draft and
promulgate rules, regulations and measures to guide them in their deliberations
in the choice of National Artists, the CCP and NCCA adopted the following revised
guidelines in September 2007:10
4. ADMINISTRATION OF THE AWARD
4.1. The National Commission for Culture and the
Arts (NCCA) shall plan, organize and
implement the Order of National
_______________
7 Republic Act No. 7356, Section 12(4).
8 Id., Section 13(j).
9 Rollo, p. 82. This effort on coordination is consistent with the powers of the
NCCA to “set up a system of networking and coordination with and
among all existing government cultural agencies for the effective
implementation of programs and activities” under Section 13(c) of
Republic Act No. 7356. Section 18 in connection with Section 23(b) of
the same law further provides that the NCCA “shall coordinate with
the national cultural agencies including but not limited to the Cultural
Center of the Philippines” with the NCCA as “over all policy-making
and coordinating body.”
10 Id., at pp. 138-144.
279
VOL. 701, JULY 16, 2013 279
National Artist for Literature Virgilio Almario, et al. vs. The Executive Secretary
Artists in coordination with the Cultural Center of the
Philippines (CCP).
4.2. It shall enlist the support and cooperation of private
sector experts from the various fields of art to ensure
that the awards are implemented in a successful and
impartial manner.
4.3. The National Artist Award Secretariat shall
commission art experts to form a Special Research
Group who shall verify information submitted on
nominees and provide essential data. They shall be
selected for their specialization and familiarity with
the works and accomplishments of nominated artists.
4.4. The Special Research Group shall be composed of ten
(10) to twenty (20) members who have expertise in
one or more fields or disciplines.
4.5. The National Artist Award Council of Experts shall
be created before or during the nomination period. It
 is tasked to screen nominees and recommend to the National Artist for Literature Virgilio Almario, et al. vs. The Executive Secretary
NCCA and CCP Boards the candidates for the Order for purposes of adding new members or replacements.
of National Artists. It shall be composed of highly 4.10. The members of the National Artist Award Council of Experts shall
regarded peers, scholars, (including cultural serve for a fixed term of three (3) years.
philosophers and historians), academicians, 5. CRITERIA FOR SELECTION
researchers, art critics, and other knowledgeable The Order of National Artists shall be given to:
individuals. A wider age-range of experts who would 5.1 Living artists who are Filipino citizens at the time of
have first-hand knowledge of achievements of nomination, as well as those who died after the
nominees shall be considered. establishment of the award in 1972 but were Filipino
4.6. The selection of the members of the National Artist citizens at the time of their death.
Award Council of Experts shall be based on the 5.2 Artists who through the content and form of their works
following criteria: have contributed in building a Filipino sense of nationhood.
(a) should have achieved authority, credibility and track 5.3. Artists who have pioneered in a mode of creative expression
record in his field(s) of expertise; or style, thus, earning distinction and making an impact on
(b) should have extensive knowledge in his field(s) and his succeeding generations of artists.
views on Philippine art and culture must be national 5.4. Artists who have created a substantial and significant body
in perspective; of works and/or consistently displayed excellence in the
(c) should be a recognized authority in the study or practice of their art form thus enriching artistic expression
research of Philippine art and culture; or style.
(d) must be willing to devote sufficient time and effort to 5.5 Artists who enjoy broad acceptance through:
the work of the Council; 5.5.1. prestigious national and/or international
(e) must be willing to sign a non-disclosure statement in recognition, such as the Gawad CCP Para sa
order to safeguard the confidentiality of the Sining, CCP Thirteen Artists Award and NCCA
deliberations; Alab ng Haraya
(f) must not have been convicted with finality of any 5.5.2. critical acclaim and/or reviews of their works
crime by a court of justice or dismissed for cause by 5.5.3. respect and esteem from peers.
any organization, whether public or private.
4.7. The National Artist Award Council of Experts shall be composed of a 6. NOMINATION PROCEDURE
maximum of seven (7) members each of the seven (7) 6.1. The National Artist Award Secretariat shall announce the
areas/disciplines. The living National Artists will automatically opening of nominations through media releases and letters
become members in addition to the forty-nine (49) selected to qualified organizations.
members. These members will constitute the first deliberation panel 6.2. Candidates may be nominated under one or more of the
and will be invited to evaluate the nominations and materials following categories:
submitted by the Special Research Group. 6.2.1. Dance – choreography, direction and/or
4.8. Any member of the Council of Experts who is nominated or related to performance.
a nominee up to the fourth degree of consanguinity or affinity shall
inhibit himself/herself from the deliberation process. Likewise, any 6.2.2. Music – composition, direction, and/or
member may decline to participate in the deliberation for any reason performance.
or may be removed for just cause upon recommendation to the NCCA 6.2.3. Theater – direction, performance and/or
Board by at least two thirds (2/3) of the members; in which case, the production design.
National Artist Award Secretariat shall again select the 6.2.4. Visual Arts – painting, sculpture,
replacements for those who decline or resigned until the first printmaking, photography, installation art,
deliberation panel is completed. mixed media works, illustration,
4.9. The list of nominated members of the National Artist Award Council comics/komiks, graphic arts, performance
of Experts shall be reviewed by the National Artist Award Secretariat art and/or imaging.
as needed,
6.2.5. Literature – poetry, fiction (short story, novel
281 and play); non-fiction (essay, journalism,
VOL. 701, JULY 16, 2013 281 literary criticism and historical literature).
 6.2.6. Film and Broadcast Arts – direction, writing,
production design, cinematography, editing,
camera work, and/or performance.
6.2.7. Architecture, Design and Allied Arts –
architecture design, interior design,
industrial arts design, landscape architecture
and fashion design.
6.3. Nominations for the Order of National Artists may be
submitted by government and non-government cultural
organizations and educational institutions, as well as
private foundations and councils.
6.4. Members of the Special Research Group, as well as
agencies attached to the NCCA and CCP shall not submit
nominations.
6.5. NCCA and CCP Board members and consultants
and NCCA and CCP officers and staff are
automatically disqualified from being nominated.
6.6. Nominations shall be accepted only when these are
submitted in writing and with proper supporting
documentation, as follows:
6.6.1. A cover letter signed by the head or designated
representative of the nominating organization.
The cover letter shall be accompanied by a Board
Resolution approving the nominee concerned with
the said resolution signed by the organization
President and duly certified by the Board
Secretary.
6.6.2. A duly accomplished nomination form;
6.6.3. A detailed curriculum vitae of the nominee;
6.6.4. A list of the nominee’s significant works categorized
according to the criteria;
6.6.5. The latest photograph (color or black and white) of
the nominee, either 5[”] x 7” or 8[”] x 11”;
6.6.6. Pertinent information materials on the nominee’s
significant works (on CDs, VCDs and DVDs);
6.6.7. Copies of published reviews;
6.6.8. Any other document that may be required.
6.7. Nominations received beyond the announced deadline for
the submission of nominations shall not be considered.
6.8. The National Artist Award Secretariat shall announce the
opening of nominations through media releases.
6.9. All inquiries and nominations shall be submitted to
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Artistic Director
Cultural Center of the Philippines
Roxas Boulevard, 1300 Pasay City
or
The NATIONAL ARTIST AWARD SECRETARIAT
Office of the Deputy Executive Director
National Commission for Culture and the Arts
633 General Luna Street, Intramuros, Manila
7. SCREENING AND SELECTION PROCESS
7.1. The National Artist Award Secretariat shall pre-
screen the nominees based on technical guideline
items 5.1, 6.2, 6.3, 6.4, 6.5 and 6.6. The pre-screening
shall not be based on the accomplishments and
merits of the nominee.
7.2. The Special Research Group shall accomplish its task
within six (6) months. The main objective is to verify the
validity of the data, and evaluate the quality, true value
and significance of works according to the criteria. It shall
come up with the updated and comprehensive profiles of
nominees reflecting their most outstanding achievements.
7.3. The National Artist Award Secretariat will meet to review
the list of nominees for oversights. Consequently, deserving
nominees shall be added to the list.
7.4. The first deliberation panel (Council of Experts) shall be
intradisciplinary. The panelists shall be grouped according
to their respective fields of expertise or disciplines to
shortlist the nominees in their disciplines or categories for
presentation to the second deliberation panel.
7.5. The second deliberation panel shall be composed of a
different set of experts from the first deliberation panel
[three (3) experts each of the seven (7) areas/discipline] and
may include members from varying backgrounds such as
critics and academicians. The achievements of each
shortlisted nominee shall be presented by one designated
member of Council of Experts. Then panel deliberates and
ranks the shortlisted nominees according to the order of
precedence following the set criteria of the Order of
National Artists. In extreme cases, the Second Deliberation
may add new names to the lists.
7.6. The second deliberation panel may recommend not to give
award in any category if no nominee is found deserving.
The number of awardees shall also depend on the
availability of funds. All decisions and recommendations
shall be in writing.
7.7. The recommendations from the Second Deliberation Panel
of the National Artist Award Council of Experts shall then
be presented to the joint boards of NCCA and CCP for final
selection. The presentors shall prepare their presentation
in writing together with an audio-visual presentation or
powerpoint presentation. Written interpellations/opinions
will be accepted from selected critics. The review shall be
based on the ranking done by the Second Deliberation. The
voting shall be across disciplines. The National Artists
 will be given the option whether to vote on all
categories or on his/her particular discipline.
7.8. Proxy votes will not be allowed in the Selection Process.
Designation of permanent representatives of agencies
should be made at the outset to make them regular Board
members of NCCA and thus, may be allowed to cast votes.
7.9. The list of awardees shall be submitted to the
President of the Republic of the Philippines for
confirmation, proclamation and conferral.
8. PRESENTATION OF THE AWARDS
8.1. The Order of National Artists shall not be conferred more
frequently than every three (3) years.
8.2. The Order of National Artists shall be conferred by
the President of the Philippines on June 11 or any
appropriate date in fitting ceremonies to be organized
by the National Artist Secretariat.
8.3. The medallion of the Order of National Artists and
citation shall be given to the honoree during the
conferment ceremony. The cash award of
P100,000.00 in cheque shall be given immediately
after the ceremony or at another time and place as
requested by the honoree.
8.4. A posthumous conferral consisting of the medallion
and citation shall be given to the family or legal heir/s
of the honoree. The cash award of P75,000.00 in
cheque shall be given to the honoree’s legal heir/s or
a representative designated by the family
immediately after the ceremony or at another time
and place as requested by the family. (Emphases
supplied.)
In 1996, the NCCA and the CCP created a National Artist Award Secretariat
composed of the NCCA Executive Director as Chairperson, the CCP President as
Vice-Chairperson, and the NCCA Deputy Executive Director, the CCP Vice-
President/Artistic Director, the NCCA National Artist Award Officer and the CCP
National Artist Award Officer as members. They also centralized with the NCCA
all financial resources and management for the administration of the National
Artists Award. They added another layer to the selection process to involve and
allow the participation of more members of the arts and culture sector of the
Philippines in the selection of who may be proclaimed a National Artist.
On September 19, 2003, Executive Order No. 236, s. 2003,
entitled Establishing the Honors Code of the Philippines to Create an Order of
Precedence of Honors Conferred and for Other Purposes, was issued. The National
Artists Award was renamed the Order of National Artists and raised to the level
of a Cultural Order, fourth in precedence among the orders and decorations that
comprise the Honors of the Philippines.11 Executive Order No. 236, s. 2003,
recognizes the vital role of the NCCA and the CCP in identifying Filipinos who
have made distinct contributions to arts and letters and states that the National
Artist recognition is conferred “upon the recommendation of the Cultural Center
of the Philippines and the National Commission for Culture and the
Arts.”12Executive Order No. 236, s. 2003, further created a Committee on Honors
to “assist the President in evaluating nominations for recipients of
Honors,”13 including the Order of National Artists, and presidential awards. The
Committee on Honors has been allowed to “authorize relevant department or
government agencies to maintain Honors and/or Awards Committees to process
nominations for Honors and/or Presidential Awards.14 In this connection, Section
2.4(A) of the Implementing Rules and Regulations15 of Executive Order No. 236, s.
2003, states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors
and the various awards committees in the various units of the government
service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards Committee. It is
composed of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to
the Committee on Honors via the Chancellery of Philippine Orders and
State Decorations. The Chancellery shall process nominations for the
consideration of the Committee on Honors. The Committee on Honors shall
screen and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a
screening committee to ensure that nominations received from the
various awards committees meet two tests: that there has not been
an abuse of discretion in making the nomination, and that the
nominee is in good standing. Should a nomination meet these
criteria, a recommendation to the President for conferment shall
be made.
The President of the Philippines takes the recommendations of the
Committee on Honors in the highest consideration when making the final
decision on the conferment of awards. (Emphasis supplied.)
Executive Order No. 435, s. 2005, entitled Amending Section 5(IV) of Executive
Order No. 236 Entitled “Establishing the Honors Code of the Philippines to Create an
Order of Precedence of Honors Conferred and for Other Purposes” was subsequently
issued on June 8, 2005. It amended the wording of Executive Order No. 236, s. 2003,
on the Order of National Artists and clarified that the NCCA and the CCP “shall
advise the President on the conferment of the Order of National Artists.”
Controversy Surrounding the 2009
Order of National Artists
Petitioners alleged that on January 30, 2007, a joint meeting of the NCCA
Board of Commissioners and the CCP Board of Trustees was held to discuss,
among others, the evaluation of the 2009 Order of National Artists and the 22 Id., at p. 43.
convening of the National Artist Award Secretariat. The nomination period was 23Id., at p. 22.
set for September 2007 to December 31, 2007, which was later extended to 293
February 28, 2008. The pre-screening of nominations was held from January to VOL. 701, JULY 16, 2013 293
March 200816
National Artist for Literature Virgilio Almario, et al. vs. The Executive Secretary
On April 3, 2009, the First Deliberation Panel met. 17 A total of 87
May 6, 2009
nominees18 were considered during the deliberation and
Her Excellency GLORIA MACAPAGAL-ARROYO
On April 23, 2009, the Second Deliberation Panel purportedly composed of an President of the Philippines
entirely new set of Council of Experts met and shortlisted 13 out of the 32 names Malacañan Palace, Manila
in the preliminary shortlist.20 On May 6, 2009, the final deliberation was
conducted by the 30-member Final Deliberation Panel comprised of the CCP Board Subject: 2009 Order of National Artist Awardees
of Trustees and the NCCA Board of Commissioners and the living National Dear President Arroyo:
Artists.21 From the 13 names in the second shortlist, a final list of four names was We are respectfully submitting a recommendation of the NCCA Board
agreed upon.22The final list, according to rank, follows: of Trustees and CCP Board of Trustees for the Proclamation of the following
Name Art Field/Category Number of Votes as 2009 Order of National Artists:
1. Mr. MANUEL CONDE+
Manuel Conde (+) Film and Broadcast Arts (Film) 26 (Posthumous) – Film and Broadcast Arts
2. Dr. RAMON SANTOS – Music
Ramon Santos Music 19 3. Mr. LAZARO FRANCISCO+
(Posthumous) – Literature
Lazaro Francisco (+) Literature 15 4. Mr. FEDERICO AGUILAR-ALCUAZ – Visual Arts
Federico Aguilar-Alcuaz Visual Arts 15 The above persons were identified by experts in the various fields of
arts and culture, including living National Artists. An intensive selection
process was observed following established practice. In the past, awards
On May 6, 2009, a letter, signed jointly by the Chairperson of the NCCA,
were presented by the President at a Ceremony held at the Malacañan
Undersecretary Vilma Labrador, and the President and Artistic Director of the
Palace followed by a program called “Parangal” at the Cultural Center of
CCP, Mr. Nestor Jardin, was sent to the President.23 The letter stated, thus:
the Philippines. We also propose to continue with past practice of
_______________
celebrating the life and works of the four (4) Order of National Artists
Music Santos, Ramon through an exhibit that will open and a commemorative publication that
will be released on the day of the proclamation.
Theater Bonifacio, Amelia Lapeña We respectfully suggest, subject to Her Excellency’s availability, that
Mabesa, Antonio the Proclamation be on June 11, 2009, if possible at the Malacañan Palace.
Thank you for your kind attention.
Visual Arts Alcuaz, Federico Aguilar Very respectfully yours,
(Sgd.)
Castrillo, Eduardo
VILMA L. LABRADOR
Literature Francisco, Lazaro+ Chairman
National Commission for Culture and the Arts
Jalandoni, Magdalena+ (Sgd.)
NESTOR O. JARDIN
Film and Broadcast Arts Conde, Manuel+ (Film) President and Artistic Director
Trinidad, Francisco+ (Broadcast Arts) Cultural Center of the Philippines24
According to respondents, the aforementioned letter was referred by the Office
Architecture, Design and Allied Arts Arguelles, Carlos+ (Architecture) of the President to the Committee on Honors. Meanwhile, the Office of the
President allegedly received nominations from various sectors, cultural groups and
Salazar, Joe+ (Fashion Design)
individuals strongly endorsing private respondents Cecile Guidote-Alvarez, Carlo
Magno Jose Caparas, Francisco Mañosa and Jose Moreno. The Committee on
21 Id., at p. 22.
Honors purportedly processed these nominations and invited resource persons to
validate the qualifications and credentials of the nominees.25
The Committee on Honors thereafter submitted a memorandum to then
President Gloria Macapagal-Arroyo recommending the conferment of the Order of
National Artists on the four recommendees of the NCCA and the CCP Boards, as
well as on private respondents Guidote-Alvarez, Caparas, Mañosa and Moreno.
Acting on this recommendation, Proclamation No. 1823 declaring Manuel Conde a
National Artist was issued on June 30, 2009. Subsequently, on July 6, 2009,
Proclamation Nos. 1824 to 1829 were issued declaring Lazaro Francisco, Federico
AguilarAlcuaz and private respondents Guidote-Alvarez, Caparas, Mañosa and
Moreno, respectively, as National Artists. This was subsequently announced to the
public by then Executive Secretary Eduardo Ermita on July 29, 2009.26
Convinced that, by law, it is the exclusive province of the NCCA Board of
Commissioners and the CCP Board of Trustees to select those who will be
conferred the Order of National Artists and to set the standard for entry into that
select group, petitioners instituted this petition for prohibition, certiorari and
injunction (with prayer for restraining order) praying that the Order of National
Artists be conferred on Dr. Santos and that the conferment of the Order of National
Artists on respondents Guidote-Alvarez, Caparas, Mañosa and Moreno be enjoined
and declared to have been rendered in grave abuse of discretion. 27
In a Resolution28 dated August 25, 2009, the Court issued a status
quo order29 enjoining “public respondents” “from conferring the rank and title of
the Order of National Artists on private respondents; from releasing the cash
awards that accompany such conferment and recognition; and from holding the
acknowledgment ceremonies for recognition of the private respondents as National
Artists.”
What is the nature and scope of the power of the President to confer the Order
of the National Artists and how should it be exercised? This is the essential issue
presented in this case. It will determine whether the proclamation of respondents
as National Artists is valid. Preliminary procedural issues on the standing of the
petitioners and the propriety of the remedies taken, 30however, call for resolution
as a prerequisite to the discussion of the main question.
_______________
27Id., at pp. 34-35.
28 Id., at pp. 49-50.
29 Id., at pp. 51-55.
30 Other procedural issues (such as violation of the hierarchy of courts and
lack of verification by some of the petitioners) have been raised by the public
respondents and respondent Caparas. In view of the purely legal question,
substantial merit and paramount public interest involved in this case, however,
the said procedural infirmities have been brushed aside and strict technicalities
relaxed. (Relevant to the relaxation of the rule on the hierachy of courts, see
296
296 SUPREME COURT REPORTS ANNOTATED
National Artist for Literature Virgilio Almario, et al. vs. The Executive Secretary
Contention of the Parties
A perusal of the pleadings submitted by the petitioners reveals that they are
an aggrupation of at least three groups, the National Artists, cultural workers and
academics, and the Concerned Artists of the Philippines (CAP). The National
Artists assert an “actual as well as legal interest in maintaining the reputation of
the Order of National Artists.”31 In particular, they invoke their right to due
process not to have the honor they have been conferred with diminished by the
irregular and questionable conferment of the award on respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno. For petitioners, this would adversely affect
their right to live a meaningful life as it detracts not only from their right to enjoy
their honor as a fruit of their lifelong labor but also from the respect of their
peers.32
The cultural workers, academics and CAP claim to be Filipinos who are deeply
concerned with the preservation of the country’s rich cultural and artistic heritage.
As taxpayers, they are concerned about the use of public monies for illegal
appointments or spurious acts of discretion.33
All of the petitioners claim that former President Macapagal-Arroyo gravely
abused her discretion in disregarding the results of the rigorous screening and
selection process for the Order of National Artists and in substituting her own
choice for those of the Deliberation Panels. According to petitioners, the President’s
discretion to name National Artists is not absolute but limited. In particular, her
discretion on the matter cannot be exercised in the absence of or against the
recommendation of the NCCA and the CCP. In adding the names of respondents
Caparas, Guidote-Alvarez, Mañosa and Moreno while dropping Dr. Santos from
the list of conferees, the President’s own choices constituted the majority of the
awardees in utter disregard of the choices of the NCCA and the CCP and the arts
and culture community which were arrived at after a long and rigorous process of
screening and deliberation. Moreover, the name of Dr. Santos as National Artist
for Music was deleted from the final list submitted by the NCCA and the CCP
Boards without clearly indicating the basis thereof. For petitioners, the President’s
discretion to name National Artists cannot be exercised to defeat the
recommendations made by the CCP and NCCA Boards after a long and rigorous
screening process and with the benefit of expertise and experience. The addition of
four names to the final list submitted by the Boards of the CCP and the NCCA and
the deletion of one name from the said list constituted a substitution of judgment
by the President and a unilateral reconsideration without clear justification of the
decision of the First, Second and Final Deliberation Panels composed of experts. 34
Petitioners further argue that the choice of respondent Guidote-Alvarez was
illegal and unethical because, as the then Executive Director of the NCCA and
presidential adviser on culture and arts, she was disqualified from even being
nominated.35 Moreover, such action on the part of the former President constituted
grave abuse of discretion as it gave preferential treatment to respondent Guidote-
Alvarez by naming the latter a National Artist despite her not having been
nominated and, thus, not subjected to the screening process provided by the rules
for selection to the Order of National Artists. Her inclusion in the list by the
President represented a clear and manifest favor given by the President in that
she was exempted from the process that all other artists have to undergo.
According to petitioners, it may be said that the President used a different
procedure to qualify respondent Guidote-Alvarez. This was clearly grave abuse of
discretion for being manifest and undue bias violative of the equal protection
clause.36
 Respondent Caparas refutes the contention of the petitioning National Artists
and insists that there could be no prejudice to the latter. They remain to be
National Artists and continue to receive the emoluments, benefits and other
privileges pertaining to them by virtue of that honor. On the other hand, all the
other petitioners failed to show any material and personal injury or harm caused
to them by the conferment of the Order of National Artists on respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno. The rule on standing may not be relaxed
in favor of the petitioners as no question of constitutionality has been raised and
no issue of transcendental importance is involved.37
Respondent Caparas further argues that the remedies of prohibition and
injunction are improper as the act sought to be enjoined — the declaration of
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as National Artists
— had already been consummated. In particular, respondent Caparas was already
proclaimed National Artist through Proclamation No. 1827 issued on July 6,
2009.38
On the merits, respondent Caparas contends that no grave abuse of discretion
attended his proclamation as National Artist. The former President considered the
respective recommendations of the NCCA and the CCP Boards and of the
Committee on Honors in eventually declaring him (Caparas) as National Artist.
The function of the NCCA and the CCP Boards is simply to advise the President.
The award of the Order of National Artists is the exclusive prerogative of the
President who is not bound in any way by the recommendation of the NCCA and
the CCP Boards. The implementing rules and regulations or guidelines of the
NCCA cannot restrict or limit the exclusive power of the President to select the
recipients of the Order of National Artists.39
For her part, in a letter40 dated March 11, 2010, respondent Guidote-Alvarez
manifested that she was waiving her right to file her comment on the petition and
submitted herself to the Court’s discretion and wisdom.
Respondent Mañosa manifested that his creations speak for themselves as his
contribution to Filipino cultural heritage and his worthiness to receive the award.
Nonetheless, he expressed his conviction that the Order of National Artists is not
a right but a privilege that he would willingly relinquish should he be found not
worthy of it.41
Respondent Moreno did not file any pleading despite being given several
opportunities to do so. Hence, the Court dispensed with his pleadings.42
In a Resolution dated July 12, 2011, this Court gave due course to the petition
and required the parties to file their respective memoranda.43 Respondent Caparas
filed his memorandum on September 8, 2011,44 the CCP filed its memorandum on
September 19, 2011,45respondent Mañosa on September 20, 2011,46 and the Office
of the Solicitor General filed a manifestation stating that it is adopting its
comment as its memorandum on September 21, 2011.47 Respondent Moreno failed
to file a Memorandum, hence, the Court resolved to dispense with the
same.48 Petitioners filed their Memorandum on May 14, 2012.49
On the other hand, the original position of the Office of the Solicitor General
(OSG) was similar to that of respondent Caparas. 50 In a subsequent
manifestation,51 however, the OSG stated that the current Board of
Commissioners of the NCCA agree with the petitioners that the President cannot
honor as a National Artist one who was not recommended by the joint Boards of
the NCCA and the CCP. The implementing rules and regulations of Executive
Order No. 236, s. 2003, recognized the binding character of the recommendation of
the NCCA and the CCP Boards and limited the authority of the Committee on
Honors to the determination that (1) there has been no grave abuse of discretion
on the part of the NCCA and the CCP Boards in making the nomination, and (2)
the nominee is in good standing. Where a nomination meets the said two criteria,
a recommendation to the President to confer the award shall be made.52
The OSG further argued that, while the President exercises control over the
NCCA and the CCP, the President has the duty to faithfully execute the laws,
including the NCCA-CCP guidelines for selection of National Artists and the
implementing rules of Executive Order No. 236, s. 2003. Moreover, the laws
recognize the expertise of the NCCA and the CCP in the arts and tasked them to
screen and select the artists to be conferred the Order of National Artists. Their
mandate is clear and exclusive as no other agency possesses such expertise.53
The OSG also assailed the former President’s choice of respondent Guidote-
Alvarez for being contrary to Republic Act No. 7356.54 Section 11 of the said law
provides:
Sec. 11. Membership Restrictions.—During his/ her term as member
of the Commission, a Commissioner shall not be eligible for any grant, or
such other financial aid from the Commission as an individual: Provided,
however, That he/she may compete for grants and awards on the same level
as other artists one (1) year after his/her term shall have expired.
The omission of the word “award” in the first portion of the above provision
appears to be unintentional as shown by the proviso which states that a member
may compete for grants and awards only one year after his or her term shall have
expired. As such, respondent Guidote-Alvarez is restricted and disqualified from
being conferred the 2009 Order of National Artists.55
The Court’s Ruling
Standing of the Petitioners
Standing is the determination of whether a specific person is the proper party
to bring a matter to the court for adjudication.56 The gist of the question of standing
is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult constitutional
questions.57
The parties who assail the constitutionality or legality of a statute or an official
act must have a direct and personal interest. They must show not only that the
law or any governmental act is invalid, but also that they sustained or are in
immediate danger of sustaining some direct injury as a result of its enforcement,
and not merely that they suffer thereby in some indefinite way. They must show
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 burdens or
penalties by reason of the statute or act complained of.58
In this case, we find that the petitioning National Artists will be denied some
right or privilege to which they are entitled as members of the Order of National
Artists as a result of the conferment of the award on respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno. In particular, they will be denied the privilege of
exclusive membership in the Order of National Artists.
In accordance with Section 2(a)59 of Executive Order No. 236, s. 2003, the
Order of National Artists is “an exclusive association of honored individuals.” To
ensure the exclusivity of the membership in the Order, a rigid nomination and
screening process has been established with different sets of renowned artists and
respected art critics invited to sit as the Council of Experts for the First and Second
Deliberation Panels. Moreover, all living National Artists are given a voice on who
should be included in their exclusive club as they automatically become members
of the Final Deliberation Panel that will vote on who should be included in the
final list to be submitted to the President for conferment of the Order of National
Artists. To allow the untrammeled discretion and authority of the President to
confer the Order of National Artists without regard to the stringent screening and
rigorous selection process established by the NCCA and the CCP will diminish, if
not negate, the exclusive nature of the said Order. It will unduly subject the
selection and conferment of the Order of National Artists to politics rather than to
principles and procedures. It will subvert the transparent and rigorous process and
allow entry to the exclusive Order of National Artists through a secret backdoor of
lobbying, back channeling and political accommodation.
Among the other petitioners, Prof. Gemino Abad presents a unique valid
personal and substantial interest. Like respondents Caparas, Mañosa and Moreno,
he was among the 87 nominees for the 2009 Order of National Artists. Like
respondent Moreno, he made it to the preliminary shortlist. As he did not make it
to the second shortlist, he was not considered by the Final Deliberation Panel,
more so by the former President.
It should be recalled too that respondent Guidote-Alvarez was disqualified to
be nominated for being the Executive Director of the NCCA at that time while
respondents Mañosa and Caparas did not make it to the preliminary shortlist and
respondent Moreno was not included in the second shortlist. Yet, the four of them
were treated differently and considered favorably when they were exempted from
the rigorous screening process of the NCCA and the CCP and conferred the Order
of National Artists. The Committee on Honors and the former President effectively
treated respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as a preferred
class. The special treatment accorded to respondents Guidote-Alvarez, Caparas,
Mañosa and Moreno fails to pass rational scrutiny.60 No real and substantial
distinction between respondents and petitioner Abad has been shown that would
justify deviating from the laws, guidelines and established
_______________
60 The rational basis scrutiny is one of three tests used by the Court to test
compliance with the equal protection clause. It is the minimal level of scrutiny
which requires that the challenged classification is rationally related to serving a
legitimate State interest. It is used when the government action is a type of
discrimination that does not warrant the intermediate and strict levels of scrutiny.
The intermediate or middle-tier test requires the government to show that (1) the
challenged classification serves an important State interest, and (2) the
classification is at least substantially related to serving that interest. It is applied
to suspect classifications like gender or illegitimacy. The most demanding is the
strict scrutiny test which requires the government to show that (1) the challenged
classification serves a compelling State interest, and (2) the classification is
necessary to serve that interest. It is used in classifications based on race, national
origin, religion alienage, denial of the right to vote, access to courts and other
rights recognized as fundamental. (Bernas, Joaquin S.J., THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY [2009 edition], pp. 139-140).
305
VOL. 701, JULY 16, 2013 305
National Artist for Literature Virgilio Almario, et al. vs. The Executive Secretary
procedures, and placing respondents in an exceptional position. The undue
classification was not germane to the purpose of the law. Instead, it contradicted
the law and well-established guidelines, rules and regulations meant to carry the
law into effect. While petitioner Abad cannot claim entitlement to the Order of
National Artists,61 he is entitled to be given an equal opportunity to vie for that
honor. In view of the foregoing, there was a violation of petitioner Abad’s right to
equal protection, an interest that is substantial enough to confer him standing in
this case.
As regards the other concerned artists and academics as well as the CAP, their
claim of deep concern for the preservation of the country’s rich cultural and artistic
heritage, while laudable, falls short of the injury in fact requirement of standing.
Their assertion constitutes a generalized grievance shared in a substantially equal
measure by all or a large class of citizens.62 Nor can they take refuge in their status
as taxpayers as the case does not involve any illegal appropriation or taxation. A
taxpayer’s suit is proper only when there is an exercise of the spending or taxing
power of the Congress.63
Nonetheless, as a reading of the petition shows that it has advanced an issue
which deserves the attention of this Court in view of its seriousness, novelty and
weight as precedent, it behooves the Court to relax the rules on standing and to
re-
_______________
61 This is not to say that petitioner Abad is unworthy of the honor. It only
means that the Court is in no position to make that determination.
62 Warth v. Seldin, 422 U.S. 490, 499 (1975); see also David v. Macapagal-
Arroyo, 522 Phil. 705, 762; 489 SCRA 160, 223 (2006).
63 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, supra note 58 at pp. 174-175; Automotive Industry Workers Alliance v.
Romulo, 489 Phil. 710, 719; 449 SCRA 1, 11 (2005); Gonzales v. Narvasa, 392 Phil.
518, 525; 337 SCRA 733, 741 (2000).
306
306 SUPREME COURT REPORTS ANNOTATED
National Artist for Literature Virgilio Almario, et al. vs. The Executive Secretary
solve the issue presented before it.64 Moreover, this issue is of paramount
interest,65 which further justifies a liberal stance on standing.
Propriety of the Remedies
The present action is a petition for prohibition, certiorari, injunction,
restraining order and all other legal, just and equitable reliefs.
It has been held that the remedies of prohibition and injunction are preventive
and, as such, cannot be availed of to restrain an act that is already fait
accompli.66Where the act sought to be prohibited or enjoined has already been
accomplished or consummated, prohibition or injunction becomes moot.67
 Nevertheless, even if the principal issue is already moot, this Court may still
resolve its merits for the future guidance of both bench and bar. Courts will decide
a question otherwise moot and academic if it is “capable of repetition, yet evading
review.”68
It is an opportune time for the Court to assert its role as republican
schoolmaster,69 a teacher in a vital national seminar.70There are times when the
controversy is of such character that, to prevent its recurrence and to assure
respect for constitutional limitations, this Court must pass on the merits of a
case.71 This is one such case. More than being a teaching moment, this is not the
first time that the Order of National Artists was conferred in the manner that is
being assailed in this case.72 If not addressed here and now, there is great
probability that the central question involved in this case will haunt us again in
the future. Every President may invoke absolute presidential prerogative and
thrust upon us National Artists after his or her own heart, in total disregard of the
advise of the CCP and the NCCA and the voice of the community of artists,
resulting to repeated episodes of indignation and uproar from the artists and the
public.
Furthermore, if not corrected, such an act would give rise to mischief and
dangerous precedent whereby those in the corridors of power could avoid judicial
intervention and review by merely speedily and stealthily completing the
commission of an illegality.73
In any event, the present petition is also for certiorari and there is no
procedural bar for the Court to pass upon the question of whether the
proclamations of respondents Guidote-Alvarez, Caparas, Mañosa and Moreno as
National Artists were attended by grave abuse of presidential discretion.
Limits of the President’s Discretion
The respective powers of the CCP Board of Trustees and of the NCCA Board of
Commissioners with respect to the conferment of the Order of National Artists are
clear. They jointly administer the said award and, upon their recommendation or
advice, the President confers the Order of National Artists.
To “recommend” and to “advise” are synonymous. To “recommend” is “to advise
or counsel.”74To “advise” is “to give an opinion or counsel, or recommend a plan or
course of action; also to give notice. To encourage, inform or acquaint.” 75 “Advise”
imports that it is discretionary or optional with the person addressed whether he
will act on such advice or not.76 This has been clearly explained in Cojuangco, Jr.
v. Atty. Palma:77
The “power to recommend” includes the power to give “advice, exhortation
or indorsement, which is essentially persuasive in character, not
binding upon the party to whom it is made.” (Emphasis supplied.)
Thus, in the matter of the conferment of the Order of National Artists, the
President may or may not adopt the recommendation or advice of the NCCA and
the CCP Boards. In other words, the advice of the NCCA and the CCP is subject to
the President’s discretion.
Nevertheless, the President’s discretion on the matter is not totally unfettered,
nor the role of the NCCA and the CCP Boards meaningless.
Discretion is not a free-spirited stallion that runs and roams wherever it
pleases but is reined in to keep it from straying. In its classic formulation,
“discretion is not unconfined and vagrant” but “canalized within banks that keep
it from overflowing.”78
The President’s power must be exercised in accordance with existing laws.
Section 17, Article VII of the Constitution prescribes faithful execution of the laws
by the President:
Sec. 17. The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied.)
The President’s discretion in the conferment of the Order of National Artists
should be exercised in accordance with the duty to faithfully execute the relevant
laws. The faithful execution clause is best construed as an obligation imposed on
the President, not a separate grant of power.79 It simply underscores the rule of
law and, corollarily, the cardinal principle that the President is not above the laws
but is obliged to obey and execute them.80This is precisely why the law provides
that “[a]dministrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution.”81
In this connection, the powers granted to the NCCA and the CCP Boards in
connection with the conferment of the Order of National Artists by executive
issuances were institutionalized by two laws, namely, Presidential Decree No. 208
dated June 7, 1973 and Republic Act No. 7356. In particular, Proclamation No.
1144 dated May 15, 1973 constituted the CCP Board as the National Artists
Awards Committee and tasked it to “administer the conferment of the category of
National Artist” upon deserving Filipino artists with the mandate to “draft the
rules to guide its deliberations in the choice of National Artists”:
Proclamation No. 1001 dated April 27, 1972, creating the Award and
Decoration of National Artist, is hereby amended by creating a National
Artists Awards Committee, hereinafter to administer the
conferment of the category of National Artist upon those deserving
thereof. The Committee, which shall be composed of members of the Board
of Trustees of the Cultural Center of the Philippines, shall organize itself
immediately and shall draft the rules to guide its deliberations in the
choice of National Artists, to the end that those who have created a body
of work in the arts and in letters capable of withstanding the test of time
will be so recognized. (Emphases supplied.)
The authority of the CCP Board of Trustees as National Artists Awards
Committee was reiterated in Presidential Decree No. 208 dated June 7, 1973.
The function of the CCP Board of Trustees as National Artists Awards
Committee has been recognized under Republic Act No. 7356:
Sec. 18. The National Cultural Agencies.—The [NCCA] shall
coordinate with the national cultural agencies including but not limited to
the Cultural Center of the Philippines, the Institute of Philippine
Languages, the National Historical Institute, the National Library, the
National Museum, the Records Management and Archives Office.
However, they shall continue operating under their respective
charters or as provided by law where provisions therein are not
inconsistent with the provisions of this Act. They shall serve as the
national repository and/or showcase, as the case may be, of the best of
Philippine culture and arts. For this purpose, these agencies shall submit
 periodic reports, including recommendations to the [NCCA]. (Emphasis
supplied.)
On the other hand, the NCCA has been given the following mandate in
connection with the conferment of cultural or arts awards:
Sec. 12. Mandate.—The Commission is hereby mandated
to formulate and implement policies and plans in accordance with the
principles stated in Title 1 of this Act.
(a) To encourage the continuing and balanced development of a
pluralistic culture by the people themselves, it shall:
xxxx
(4) extend recognition of artistic achievement through awards,
grants and services to artists and cultural groups which
contribute significantly to the Filipino’s cultural legacy;
xxxx
Sec. 13. Powers and Functions.—To carry out its mandate, the
Commission shall exercise the following powers and functions:
xxx
(j) advise the President on matters pertaining to culture and
the arts, including the creation of a special decoration or
award, for persons who have significantly contributed to the
development and promotion of Philippine culture and arts;
(k) promulgate rules, regulations and undertake any and
all measures as may be necessary to implement this
Act[.] (Emphases supplied.)
By virtue of their respective statutory mandates in connection with the
conferment of the National Artist Award, the NCCA and the CCP decided to work
together and jointly administer the National Artist Award. They reviewed the
guidelines for the nomination, selection and administration of the National Artist
Award, created a National Artist Award Secretariat, centralized all financial
resources and management for the administration of the National Artist Award,
and added another layer to the selection process so that more members of the arts
and culture sector of the Philippines may be involved and participate in the
selection of National Artists.
We have held that an administrative regulation adopted pursuant to law has
the force and effect of law.82 Thus, the rules, guidelines and policies regarding the
Order of National Artists jointly issued by the CCP Board of Trustees and the
NCCA pursuant to their respective statutory mandates have the force and effect
of law. Until set aside, they are binding upon executive and administrative
agencies,83 including the President himself/herself as chief executor of laws. In this
connection, Section 2.5(A) of the Implementing Rules and Regulations84 of
Executive Order No. 236, s. 2003 provides:
2.5: General Guidelines for Awards Committees
A. National Orders of Cultural and Scientific Merit
The existing modalities of the NCCA for selecting recipients for the
Order of National Artists, and the Gawad sa Manlilikha ng Bayan, and
of the NAST for selecting recipients of the Order of National
Scientists, shall remain in force. (Emphases supplied.)
Section 2.4(A) of the same implementing rules further states:
2.4: Awards Committees
There shall be two types of awards committees: the Committee on Honors
and the various awards committees in the various units of the government
service.
A. The Committee on Honors
The Committee on Honors serves as a National Awards Committee. It is
composed of the following:
The Executive Secretary, Chairman
The Secretary of Foreign Affairs, Vice-Chairman
Head, Presidential Management Staff, member
Presidential Assistant for Historical Affairs, member
Chief of Presidential Protocol, member
Chief of Protocol, DFA, member
All nominations from the various awards committees must be submitted to
the Committee on Honors via the Chancellery of Philippine Orders and
State Decorations. The Chancellery shall process nominations for the
consideration of the Committee on Honors. The Committee on Honors shall
screen and recommend these nominations to the President.
The Committee on Honors shall, as a general rule, serve as a
screening committee to ensure that nominations received from the
various awards committees meet two tests: that there has not been
an abuse of discretion in making the nomination, and that the
nominee is in good standing. Should a nomination meet these
criteria, a recommendation to the President for conferment shall
be made.
The President of the Philippines takes the recommendations of the
Committee on Honors in the highest consideration when making the final
decision on the conferment of awards. (Emphasis supplied.)
Pursuant to the above provision of the implementing rules of Executive Order
No. 236, s. 2003, the authority of the Committee on Honors is limited to
determining whether the nominations submitted by a particular awards
committee, in this case, the joint NCCA and CCP Boards, have been tainted by
abuse of discretion, and whether the nominees are in good standing. Should the
nominations meet these two criteria, the Committee on Honors shall make a
recommendation to the President for conferment of the Order of National Artists.
In view of the various stages of deliberation in the selection process and as a
consequence of his/her duty to faithfully enforce the relevant laws, the discretion
of the President in the matter of the Order of National Artists is confined to the
names submitted to him/her by the NCCA and the CCP Boards. This means that
the President could not have considered conferment of the Order of National
Artists on any person not considered and recommended by the NCCA and the CCP
Boards. That is the proper import of the provision of Executive Order No. 435, s.
2005, that the NCCA and the CCP “shall advise the President on the conferment
of the Order of National Artists.” Applying this to the instant case, the former
President could not have properly considered respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno, as their names were not recommended by the
NCCA and the CCP Boards. Otherwise, not only will the stringent selection and
meticulous screening process be rendered futile, the respective mandates of the
NCCA and the CCP Board of Trustees under relevant laws to administer the
conferment of Order of National Artists, draft the rules and regulations to guide
its deliberations, formulate and implement policies and plans, and undertake any
and all necessary measures in that regard will also become meaningless.
Furthermore, with respect to respondent Guidote-Alvarez who was the
Executive Director of the NCCA at that time, the Guidelines expressly provides:
6.5 NCCA and CCP Board members and consultants and NCCA and CCP
officers and staff are automatically disqualified from being nominated.85
Respondent Guidote-Alvarez could not have even been nominated, hence, she
was not qualified to be considered and conferred the Order of National Artists at
that time. The President’s discretion on the matter does not extend to removing a
legal impediment or overriding a legal restriction.
From the foregoing, the advice or recommendation of the NCCA and the CCP
Boards as to the conferment of the Order of National Artists on Conde, Dr. Santos,
Francisco and Alcuaz was not binding on the former President but only
discretionary or optional for her whether or not to act on such advice or
recommendation. Also, by virtue of the power of control, the President had the
authority to alter or modify or nullify or set aside such recommendation or advice.
It was well within the President’s power and discretion to proclaim all, or some or
even none of the recommendees of the CCP and the NCCA Boards, without having
to justify his or her action.
WHEREFORE, the petition is hereby GRANTED in PART. Proclamation
Nos. 1826 to 1829 dated July 6, 2009 proclaiming respondents Cecile Guidote-
Alvarez, Carlo Magno Jose Caparas, Francisco Mañosa, and Jose Moreno,
respectively, as National Artists are declared INVALID and SET ASIDE for
having been issued with grave abuse of discretion.
SO ORDERED.
Petition granted in part, Proclamation Nos. 1826 to 1829 dated July 6, 2009
proclaiming respondents Cecile Guidote-Alvarez, Carlo Magno Jose Caparas,
Francisco Mañosa and Jose Moreno as National Artists declared invalid and set
aside.
Note.—Mere speculation, unsupported by convincing evidence, cannot establish
discrimination on the part of the prosecution and the denial to the accused of the equal
protection of the laws. (People vs. Dumloa. 580 SCRA 409 [2009])
Quite often, the petitioner in a public action sues as a citizen or taxpayer to gain Lucos
standi, which is not suprising, for even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with adequate interest to sue. (De
Castro vs. Judicial and Bar Council, 615 SCRA 666 [2010])
――o0o――

Thus, the exclusion of Santos did not constitute grave abuse of discretion on the
part of the former President.
The conferment of the Order of National Artists on respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno was an entirely different matter.
There is grave abuse of discretion when an act is (1) done contrary to the
Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or
arbitrarily, out of malice, ill will or personal bias.86
There was a violation of the equal protection clause of the Constitution 87 when
the former President gave preferential treatment to respondents Guidote-Alvarez,
Caparas, Mañosa and Moreno. The former President’s constitutional duty to
faithfully execute the laws and observe the rules, guidelines and policies of the
NCCA and the CCP as to the selection of the nominees for conferment of the Order
of National Artists proscribed her from having a free and uninhibited hand in the
conferment of the said award. The manifest disregard of the rules, guidelines and
processes of the NCCA and the CCP was an arbitrary act that unduly favored
respondents Guidote-Alvarez, Caparas, Mañosa and Moreno. The conferment of
the Order of National Artists on said respondents was therefore made with grave
abuse of discretion and should be set aside.
While the Court invalidates today the proclamation of respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno as National Artists, such action should not
be taken as a pronouncement on whether they are worthy to be conferred that
honor. Only the President, upon the advise of the NCCA and the CCP Boards, may
determine that. The Court simply declares that, as the former President
committed grave abuse of discretion in issuing Proclamation Nos. 1826 to 1829
dated July 6, 2009, the said proclamations are invalid. However, nothing in this
Decision should be read as a disqualification on the part of respondents Guidote-
Alvarez, Caparas, Mañosa and Moreno to be considered for the honor of National
Artist in the future, subject to compliance with the laws, rules and regulations
governing said award.
190 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
G.R. No. 78239. February 9, 1989.*
SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR.,
respondent.
Criminal Law; Pardon, Effects of; Administrative Law; Public
Officers; Pardon does not ipso facto restore a convicted felon to public office
necessarily relinquished or forfeited by reason of such conviction.—Pardon granted
after conviction frees the individual from all the penalties and legal disabilities
and restores him to all his civil rights. But unless expressly grounded on the
person’s innocence (which is rare), it cannot bring back lost reputation for honesty,
integrity and fair dealing. This must be constantly kept in mind lest we lose track
of the true character and purpose of the privilege. Thus, notwithstanding the
expansive and effusive language of the Garland case, we are in full agreement
with the commonly-held opinion that pardon does not ipso facto restore a convicted
felon to public office necessarily relinquished or forfeited by reason of the
conviction although such pardon undoubtedly restores his eligibility for
appointment to that office.
Same; Same; Same; Same; Same; The pardon granted to petitioner resulted
in removing her disqualification from holding public employment, but to regain her
former post, she must reapply and undergo the usual procedure required for a new
appointment.—For petitioner Monsanto, this is the bottom line: the absolute
disqualification or ineligibility from public office forms part of the punishment
prescribed by the Revised Penal Code for estafa thru falsification of public
documents. It is clear from the authorities referred to that when her guilt and
punishment were expunged by her pardon, this particular disability was likewise
removed. Henceforth, petitioner may apply for reappointment to the office which
was forfeited by reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be and should
be evaluated and taken into account to determine ultimately whether she can once
again be entrusted with public funds. Stated differently, the pardon granted to
petitioner has resulted in removing her disqualification from holding public
employment but it cannot go beyond that. To regain her former post as assistant
city treasurer, she must reapply and undergo the usual procedure required for a
new appointment.
Same; Same; Same; Civil Liability, Extinction Of; The pardon granted to
herein petitioner did not extinguish the civil liability arising from the crime she has
been convicted of.—Finally, petitioner has sought exemption from the payment of
the civil indemnity imposed upon her by the sentence. The Court cannot oblige her.
Civil liability arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence is not served
by pardon, amnesty or commutation of sentence. Petitioner’s civil liability may
only be extinguished by the same causes recognized in the Civil Code, namely:
payment, loss of the thing due, remission of the debt, merger of the rights of
creditor and debtor, compensation and novation.
Same; Same; Same; Acceptance of Pardon; Petitioner is deemed to have
abandoned her appeal when she accepted the pardon granted to her.—The 1981
amendments had deleted the earlier rule that clemency could be extended only
upon final conviction, implying that clemency could be given even before
conviction. Thus, petitioner’s unconditional pardon was granted even as her appeal
was pending in the High Court. It is worth mentioning that under the 1987
Constitution, the former limitation of final conviction was restored. But be that as
it may, it is our view that in the present case, it is not material when the pardon
was bestowed, whether before or after conviction, for the result would still be the
same. Having accepted the pardon, petitioner is deemed to have abandoned her
appeal and her unreversed conviction by the Sandiganbayan assumed the
character of finality.
PADILLA, J., Separate opinion:
Criminal Law; Pardon, Effects of; Administrative Law; Public Officers; A
public officer, like herein petitioner, who has been convicted of Estafa Through
Falsification of Public Documents, though subsequently pardoned, is deemed to
have lost her right to public office, unless such right is expressly restored by the
pardon.—An examination of the presidential pardon in question shows that, while
petitioner was granted “an absolute and unconditional pardon and restored to full
civil and political rights”, yet, nothing therein expressly provides that the right to
hold public office was thereby restored to the petitioner. In view of
the expressexclusion by Art. 36, R.P.C., of the right to hold public office,
notwithstanding a pardon unless the right is expressly restored by the pardon, it is
my considered opinion that, to the extent that the pardon granted to the petitioner
did not expressly restore the right to hold public office as an effect of such pardon,
that right must be kept away from the petitioner. It is a recognized principle in
public law—hopefully to be honored more in its compliance rather than in its
breach—that a “public office is a public trust.” The restoration of the right to hold
public office to one who has lost such right by reason of conviction in a criminal
case, but subsequently pardoned, cannot be left to inference, no matter how
intensely arguable, but must be stated in express, explicit, positive and specific
language. To require this would not be asking too much.
PETITION to review the resolution of the Deputy Executive Secretary.
The facts are stated in the opinion of the Court.
FERNAN, C.J.:
The principal question raised in this petition for review is whether or not a public
officer, who has been granted an absolute pardon by the Chief Executive, is entitled
to reinstatement to her former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted
petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and
three other accused, of the complex crime of estafa thru falsification of public
documents and sentenced them to imprisonment of four (4) years, two (2) months
and one (1) day of prision correccional as minimum, to ten (10) years and one (1)
day of prision mayor as maximum, and to pay a fine of P3,500. They were further
ordered to jointly and severally indemnify the government in the sum of P4,892.50
representing the balance of the amount defrauded and to pay the costs
proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently
affirmed the same. She then filed a motion for reconsideration but while said
motion was pending, she was extended on December 17, 1984 by then President
Marcos absolute pardon which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer
requesting that she be restored to her former post as assistant city treasurer since
the same was still vacant.
Petitioner’s letter-request was referred to the Ministry of Finance for
resolution in view of the provision of the Local Government Code transferring the
power of appointment of treasurers from the city governments to the said Ministry.
In its 4th Indorsement dated March 1, 1985, the Finance Ministry ruled that
petitioner may be reinstated to her position without the necessity of a new
appointment not earlier than the date she was extended the absolute pardon. It
also directed the city treasurer to see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor of the government as well
as the costs of the litigation, be satisfied.1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry
on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the
crime which implies that her service in the government has never been interrupted
and therefore the date of her reinstatement should correspond to the date of her
preventive suspension which is August 1, 1982; that she is entitled to backpay for
the entire period of her suspension; and that she should not be required to pay the
proportionate share of the amount of P4,892.50.2
The Ministry of Finance, however, referred petitioner’s letter to the Office of
the President for further review and action. On April 15, 1986, said Office, through
Deputy Executive Secretary Fulgenio S. Factoran, Jr. held:
“We disagree with both the Ministry of Finance and the petitioner because, as
borne out by the records, petitioner was convicted of the crime for which she was
accused. In line with the government’s crusade to restore absolute honesty in
public service, this Office adopts, as a juridical guide (Miranda v. Imperial, 77
Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in People v.
Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon,
of a former public officer is the only ground for reinstatement to his former position
and entitlement to payment of his salaries, benefits and emoluments due to him
during the period of his suspension pendente lite.
“In fact, in such a situation, the former public official must secure a
reappointment before he can reassume his former position. xxx.
“Anent the civil liability of Monsanto, the Revised Penal Code expressly
provides that ‘a pardon shall in no case exempt the culprit from payment of the
civil indemnity imposed upon him by the sentence.’ (Sec. 36, par. 2).
“IN VIEW OF THE FOREGOING, this Office holds that Salvacion A.
Monsanto is not entitled to an automatic reinstatement on the basis of the absolute
pardon granted her but must secure an appointment to her former position and
that, notwithstanding said absolute pardon, she is liable for the civil liability
concomitant to her previous conviction.”3
Her subsequent motion for reconsideration having been denied, petitioner filed the
present petition in her behalf. We gave due course on October 13, 1987.
Petitioner’s basic theory is that the general rules on pardon cannot apply to her
case by reason of the fact that she was extended executive clemency while her
conviction was still pending appeal in this Court. There having been no final
judgment of conviction, her employment therefore as assistant city treasurer could
not be said to have been terminated or forfeited. In other words, without that final
judgment of conviction, the accessory penalty of forfeiture of office did not attach
and the status of her employment remained “suspended.” More importantly, when
pardon was issued before the final verdict of guilt, it was an acquittal because there
was no offense to speak of. In effect, the President has declared her not guilty of
the crime charged and has accordingly dismissed the same.4
It is well to remember that petitioner had been convicted of the complex crime
of estafa thru falsification of public documents and sentenced to imprisonment of
four years, two months and one day of prision correccional as minimum, to ten
years and one day of prision mayor as maximum. The penalty of prision
mayor carries the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage, enforceable during the
term of the principal penalty.5 Temporary absolute disqualification bars the
convict from public office or employment, such disqualification to last during the
term of the sentence.6 Even if the offender be pardoned, as to the principal penalty,
the accessory penalties remain unless the same have been expressly remitted by
the pardon.7 The penalty of prision correccional carries, as one of its accessory
penalties, suspension from public office.8
The propositions earlier advanced by petitioner reveal her inadequate
understanding of the nature of pardon and its legal consequences. This is not
totally unexpected considering that the authorities on the subject have not been
wholly consistent particularly in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity of
the King’s wrath. But Philippine jurisprudence on the subject has been largely
influenced by American case law.
Pardon is defined as “an act of grace, proceeding from the power entrusted with
the execution of the laws, which exempts the individual, on whom it is bestowed,
from the punishment the law inflicts for a crime he has committed. It is the private,
though official act of the executive magistrate, delivered to the individual for whose
benefit it is intended, and not communicated officially to the Court. x x x. A pardon
is a deed, to the validity of which delivery is essential, and delivery is not complete
without acceptance.”8-a
At the time the antecedents of the present case took place, the pardoning power
was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite.
The pertinent provision reads:
“The President may, except in cases of impeachment, grant reprieves,
commutations and pardons, remit fines and forfeitures, and with the concurrence
of the Batasang Pambansa, grant amnesty.”9
The 1981 amendments had deleted the earlier rule that clemency could be
extended only upon final conviction, implying that clemency could be given even
before conviction. Thus, petitioner’s unconditional pardon was granted even as her
appeal was pending in the High Court. It is worth mentioning that under the 1987
Constitution, the former limitation of final conviction was restored. But be that as
it may, it is our view that in the present case, it is not material when the pardon
was bestowed, whether before or after conviction, for the result would still be the
same. Having accepted the pardon, petitioner is deemed to have abandoned her
appeal and her unreversed conviction by the Sandiganbayan assumed the
character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of
a full and absolute pardon in relation to the decisive question of whether or not the
plenary pardon had the effect of removing the disqualifications prescribed by the
Revised Penal Code.
In Pelobello v. Palatino,10 we find a reiteration of the stand consistently
adopted by the courts on the various consequences of pardon: “x x x we adopt the
broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940,
that subject to the limitations imposed by the Constitution, the pardoning power
cannot be restricted or controlled by legislative action; that an absolute pardon not
only blots out the crime committed but removes all disabilities resulting from the
conviction. x x x. (W)e are of the opinion that the better view in the light of the
constitutional grant in this jurisdiction is not to unnecessarily restrict or impair
the power of the Chief Executive who, after an inquiry into the environmental
facts, should be at liberty to atone the rigidity of the law to the extent of relieving
completely the party x x x concerned from the accessory and resultant disabilities
of criminal conviction.”
The Pelobello v. Palatino and Cristobal v. Labrador cases,11 and several
others12 show the unmistakable application of the doctrinal case of Ex Parte
Garland,13 whose sweeping generalizations to this day continue to hold sway in
our jurisprudence despite the fact that much of its relevance has been downplayed
by later American decisions.
Consider the following broad statements:
“A pardon reaches both the punishment prescribed for the offense and the guilt of
the offender; and when the pardon is full, it releases the punishment and blots out
of existence the guilt, so that in the eye of the law the offender is as innocent as if
he had never committed the offense. If granted before conviction, it prevents any
of the penalties and disabilities, consequent upon conviction, from attaching; if
granted after conviction, it removes the penalties and disabilities and restores him
to all his civil rights; it makes him, as it were, a new man, and gives him a new
credit and capacity.”14
Such generalities have not been universally accepted, recognized or
approved.15 The modern trend of authorities now rejects the unduly broad
language of the Garland case (reputed to be perhaps the most extreme statement
which has been made on the effects of a pardon). To our mind, this is the more
realistic approach. While a pardon has generally been regarded as blotting out the
existence of guilt so that in the eye of the law the offender is as innocent as though
he never committed the offense, it does not operate for all purposes. The very
essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It
does not erase the fact of the commission of the crime and the conviction thereof.
It does not wash out the moral stain. It involves forgiveness and not
forgetfulness.16
The better considered cases regard full pardon (at least one not based on the
offender’s innocence) as relieving the party from all the punitive consequences of
his criminal act, including the disqualifications or disabilities based on the finding
of guilt.17 But it relieves him from nothing more. “To say, however, that the
offender is a ‘new man’, and ‘as innocent as if he had never committed the offense;’
is to ignore the difference between the crime and the criminal. A person adjudged
guilty of an offense is a convicted criminal, though pardoned; he may be deserving
of punishment, though left unpunished; and the law may regard him as more
dangerous to society than one never found guilty of crime, though it places no
restraints upon him following his conviction.”18
A pardon looks to the future. It is not retrospective.19 It makes no amends for the
past. It affords no relief for what has been suffered by the offender. It does not
impose upon the government any obligation to make reparation for what has been
suffered. “Since the offense has been established by judicial proceedings, that
which has been done or suffered while they were in force is presumed to have been
rightfully done and justly suffered, and no satisfaction for it can be
required.”20 This would explain why petitioner, though pardoned, cannot be
entitled to receive backpay for lost earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief
Executive declared her not guilty of the crime for which she was convicted. In the
case of State v. Hazzard,21 we find this strong observation: “To assume that all or
even a major number of pardons are issued because of innocence of the recipients
is not only to indict our judicial system, but requires us to assume that which we
all know to be untrue. The very act of forgiveness implies the commission of wrong,
and that wrong has been established by the most complete method known to
modern civilization. Pardons may relieve from the disability of fines and forfeitures
attendant upon a conviction, but they cannot erase the stain of bad character,
which has been definitely fixed.”22
In this ponencia, the Court wishes to stress one vital point: While we are
prepared to concede that pardon may remit all the penal consequences of a
criminal indictment if only to give meaning to the fiat that a pardon, being a
presidential prerogative, should not be circumscribed by legislative action, we do
not subscribe to the fictitious belief that pardon blots out the guilt of an individual
and that once he is absolved, he should be treated as if he were innocent. For
whatever may have been the judicial dicta in the past, we cannot perceive how
pardon can produce such “moral changes” as to equate a pardoned convict in
character and conduct with one who has constantly maintained the mark of a good,
law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are “historical”
facts which, despite the public manifestation of mercy and forgiveness implicit in
pardon, “ordinary, prudent men will take into account in their subsequent dealings
with the actor.”23
Pardon granted after conviction frees the individual from all the penalties and
legal disabilities and restores him to all his civil rights. But unless expressly
grounded on the person’s innocence (which is rare), it cannot bring back lost
reputation for honesty, integrity and fair dealing.24 This must be constantly kept
in mind lest we lose track of the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of
the Garland case, we are in full agreement with the commonly-held opinion that
pardon does not ipso facto restore a convicted felon to public office necessarily
relinquished or forfeited by reason of the conviction 25 although such pardon
undoubtedly restores his eligibility for appointment to that office.26
The rationale is plainly evident. Public offices are intended primarily for the
collective protection, safety and benefit of the common good. They cannot be
compromised to favor private interests. To insist on automatic reinstatement
because of a mistaken notion that the pardon virtually acquitted one from the
offense of estafa would be grossly untenable. A pardon, albeit full and plenary,
cannot preclude the appointing power from refusing appointment to anyone
deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of
the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification
or ineligibility from public office forms part of the punishment prescribed by the
Revised Penal Code for estafa thru falsification of public documents. It is clear
from the authorities referred to that when her guilt and punishment were
expunged by her pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to the office which was
forfeited by reason of her conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her offense must be and should
be evaluated and taken into account to determine ultimately whether she can once
again be entrusted with public funds. Stated differently, the pardon granted to
petitioner has resulted in removing her disqualification from holding public
employment but it cannot go beyond that. To regain her former post as assistant
city treasurer, she must reapply and undergo the usual procedure required for a
new appointment.
Finally, petitioner has sought exemption from the payment of the civil
indemnity imposed upon her by the sentence. The Court cannot oblige her. Civil
liability arising from crime is governed by the Revised Penal Code. It subsists
notwithstanding service of sentence, or for any reason the sentence is not served
by pardon, amnesty or commutation of sentence. Petitioner’s civil liability may
only be extinguished by the same causes recognized in the Civil Code, namely:
payment, loss of the thing due, remission of the debt, merger of the rights of
creditor and debtor, compensation and novation.27
WHEREFORE, the assailed resolution of former Deputy Executive Secretary
Fulgencio S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.
So ordered.
Narvasa, Paras, Gancayco, Bidin, Cortés, Griño-
Aquino,Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J., In the result and in the Separate Opinions of
Justices Padilla and Feliciano.
Gutierrez, Jr., J., I join Justice Feliciano in his concurring opinion.
Cruz, J., I concur subject to Mr. Justice Feliciano’s reservation in his
separate opinion.
Feliciano, J., Please see separate concurring opinion.
Padilla, J., Please see separate opinion.
Sarmiento, J., I join the separate opinion of Justices Padilla and
Feliciano.
SEPARATE OPINION
PADILLA, J.:
I concur in the result but on grounds different from those relied upon by the
majority opinion.
Petitioner Salvacion A. Monsanto was Assistant Treasurer of Calbayog City.
Together with three (3) other accused, she was charged before the Sandiganbayan
with the complex crime of Estafa through falsification of public documents. After
trial, the accused were convicted and sentenced to imprisonment of four (4) years,
two (2) months and one (1) day of prision correccional, as minimum, to ten (10)
years and one (1) day of prision correccional, as maximum, and to pay a fine of
P3,500.00. They were also ordered to jointly and severally indemnify the
government in the sum of P4,892.50 representing the balance of the amount
defrauded and to pay the costs proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed
the same. Petitioner then filed a motion for reconsideration but while said motion
was pending, President Ferdinand E. Marcos extended to her on 17 December 1984
an absolute pardon which she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City
Treasurer of Calbayog, the Ministry of Finance and the Office of the President,
asked that she be allowed to re-assume her former office, as of 1 August 1982 (the
date of her preventive suspension), that she be paid her back salaries for the entire
period of her suspension, and that she be not required to pay her proportionate
share of the amount of P4,892.50.
Respondent Assistant Executive Secretary denied petitioner’s request for
automatic reinstatement as well as her other claims, because of which denial, this
petition for review on certiorari
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VOL. 170, FEBRUARY 9, 1989 203
Monsanto vs. Factoran, Jr.
was filed before the Court seeking the setting aside and reversal of the decision of
the respondent Assistant Executive Secretary, on the main contention that, as a
public officer who has been granted an absolute pardon by the President, she is
entitled to reinstatement to her former position without need of a new
appointment, and to the other reliefs prayed for.
There can be no dispute that the pardon extinguished petitioner’s criminal
liability. At the same time, Art. 36 of the Revised Penal Code categorically covers
the effects of a pardon on the pardoned’s right to hold office, suffrage and on his
civil liability. It states:
“ART. 36. Pardon; its effects.—A pardon shall not work the restoration of the right
to hold public office, or the right of suffrage, unless such rights be expressly restored
by the terms of the pardon.
“A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.” (Italics supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind,
clear that the pardon extended by the President to the petitioner did not per
se entitle her to again hold public office (including therefore the office of Assistant
Treasurer, Calbayog City) or to suffrage; nor did such pardon extinguish her civil
liability for the criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while
petitioner was granted “an absolute and unconditional pardon and restored to full
civil and political rights”, yet, nothing therein expressly provides that the right to
hold public office was thereby restored to the petitioner. In view of
the express exclusion by Art. 36, R.P.C., of the right to hold public office,
notwithstanding a pardon unless the right is expressly restored by the pardon, it is
my considered opinion that, to the extent that the pardon granted to the petitioner
did not expressly restore the right to hold public office as an effect of such pardon,
that right must be kept away from the petitioner.
It is a recognized principle in public law—hopefully to be honored more in its
compliance rather than in its breach—that a “public office is a public trust.” The
restoration of the right to
204
204 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
hold public office to one who has lost such right by reason of conviction in a criminal
case, but subsequently pardoned, cannot be left to inference, no matter how
intensely arguable, but must be stated in express, explicit, positive and specific
language. To require this would not be asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil.
341 and Pelobello vs. Palatino, 72 Phil. 441which may be understood to mean that
an absolute pardon, without qualification, restores full civil rights which have been
construed, in turn, to include the right to hold public office (Versoza vs.
Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in
order, so that an absolute pardon to work a restoration of the right to hold public
office must expressly so state, in order to give substance and meaning to the sound
provisions of Article 36 of the Revised Penal Code, particularly in the light of our
times and experience.
ACCORDINGLY, I vote to DENY the petition.
FELICIANO, J.: Concurring:
I concur in the result reached in the important and eloquent opinion of the Chief
Justice. I also join in the separate concurring opinion of Mr. Justice Padilla. At the
same time, I would add a few brief statements, basically for my own clarification.
Article 36 of the Revised Penal Code states:
“Article 36. Pardon; its effects.—A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be expressly
restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.” (Italic supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times
by the Revised Penal Code in its following provisions:
“Article 40. Death—Its accessory penalties.—The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of perpetual
absolute disqualification and
205
VOL. 170, FEBRUARY 9, 1989 205
Monsanto vs. Factoran, Jr.
that of civil interdiction during thirty years following the date of sentence, unless
such accessory penalties have been expressly remitted in the pardon.”
“Article 41. Reclusion perpetua and reclusion temporal.—Their accessory
penalties.—The penalties of reclusion perpetua and reclusion temporal shall carry
with them that of civil interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute disqualification which the offender
shall suffer even though pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.”
“Article 42. Prision mayor—Its accessory penalties.—The penalty of prision
mayor shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the offender
shall suffer although pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.”
“Article 43. Prision correccional—Its accessory penalties.—The penalty
of prision correccional shall carry with it that of suspension from public office, from
the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment
shall exceed eighteen months. The offender shall suffer the disqualification
provided in this article although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.” (Italics supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the
complex crime of estafa through falsification of public documents, included the
accessory penalties of temporary absolute disqualification from public office or
employment and perpetual special disqualification from the right of suffrage. The
17 December 1984 pardon extended to petitioner in the instant case was written
on a standard printed form which states in printed words that it was “an absolute
and unconditional pardon [which] restored [petitioner] to full civil and political
rights.”1 While the right of suffrage and the right to hold public office or
employment are commonly regarded as “political rights,”2 it must be noted that
there are other “political rights”3 and that the pardon given to petitioner did not
_______________
Rollo, p. 90.
1
Vera v. Avelino, 77 Phil. 192 (1946).
2
3 Malcolm and Laurel, The Constitutional Law of the Philippines, p. 378
(1936).
206
206 SUPREME COURT REPORTS ANNOTATED
Monsanto vs. Factoran, Jr.
expressly and in printer’s ink restore to petitioner the particular right to hold
public office and the specific right to vote at elections and plebiscites.
 I join in the basic point of Mr. Justice Padilla that because of the nature of a
public office as a public trust, Articles 36 and 40-43 appropriately require a very
high degree of explicitness if a pardon is to work the restoration of such right to
petitioner. Exactly the same point may, of course, be made in respect of the
restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in
our statute books since 1930. I believe that they have been left intact by the
constitutional provisions on pardon, whether one refers to the 1935 Constitution
or to the 1973 and 1987 Constitutions. I do not believe that Articles 36, et
al. collided with any provision or principle embodied in either of our prior
constitutions. The Chief Justice appears to agree with this position when he
referred to Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on,
however, to say (in page 13) that: “the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it cannot go
beyond that.”
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code
have not been shown to be an unconstitutional restriction on the pardoning power
of the President. The limitation on the President’s pardoning power, if limitation
it be, does not appear to be an unreasonably onerous one. Articles 36, et al. merely
require the President to become completely explicit if the pardon he extends is
intended to wipe out not merely the principal but also the accessory penalty of
disqualification from holding public office and from voting and to restore the
recipient of the pardon to the exercise of such fundamental political rights. Such
requirement of explicitness seems entirely in line with the fundamental point
made by the Chief Justice that a pardon does not blot out the factual guilt of the
recipient of the pardon. In other words, the mere grant of a pardon to a public
officer or employee who has been unfaithful to the public trust and sentenced to
disqualification from voting and from holding such office, does not create the
presumption that the recipient of the pardon has thereby suddenly become morally
eligible once more to exercise the right to vote
207
VOL. 170, FEBRUARY 9, 1989 207
Phil. National Construction Corp. vs. NLRC
and to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her
the right to hold public office and on this ground, I vote to DENY the Petition for
Review and to AFFIRM the assailed Resolution of the then Executive Secretary
Fulgencio S. Factoran, Jr.
Resolution affirmed.
Note.—Acquittal in a criminal case does not operate to dismiss a separate civil
action filed on the basis of the same facts alleged in the criminal case. (Salta vs.
De Veyra, 117 SCRA 212).
——o0o——
G.R. No. 206666. January 21, 2015.*
ATTY. ALICIA RISOS-VIDAL, petitioner,
ALFREDO S. LIM, petitioner-intervenor, vs. COMMISSION ON ELECTIONS
and JOSEPH EJERCITO ESTRADA, respondents.
Constitutional Law; Criminal Law; Pardon; Former President Estrada was
granted an absolute pardon that fully restored all his civil and political rights,
which naturally includes the right to seek public elective office, the focal point of
this controversy.—Former President Estrada was granted an absolute pardon
that fully restored all his civil and political rights, which naturally includes the
right to seek public elective office, the focal point of this controversy. The wording
of the pardon extended to former President Estrada is complete, unambiguous, and
unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal
Code. The only reasonable, objective, and constitutional interpretation of the
language of the pardon is that the same in fact conforms to Articles 36 and 41 of
the Revised Penal Code.
Same; Same; Same; The 1987 Constitution, specifically Section 19 of Article
VII and Section 5 of Article IX-C, provides that the President of the Philippines
possesses the power to grant pardons, along with other acts of executive clemency;
The only instances in which the President may not extend pardon remain to be in:
(1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and
(3) cases involving violations of election laws, rules and regulations in which there
was no favorable recommendation coming from the Commission on Elections
(COMELEC).—The 1987 Constitution, specifically Section 19 of Article VII and
Section 5 of Article IX-C, provides that the President of the Philippines possesses
the power to grant pardons, along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after
_______________
* EN BANC.
211
VOL. 747, JANUARY 21, 2015 211
Risos-Vidal vs. Commission on Elections
conviction by final judgment. He shall also have the power to grant amnesty
with the concurrence of a majority of all the Members of the Congress. x x x x
Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of
election laws, rules, and regulations shall be granted by the President without the
favorable recommendation of the Commission. It is apparent from the foregoing
constitutional provisions that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet
resulted in a final conviction; and (3) cases involving violations of election laws,
rules and regulations in which there was no favorable recommendation coming
from the COMELEC. Therefore, it can be argued that any act of Congress by way
of statute cannot operate to delimit the pardoning power of the President.
Same; Same; Same; This doctrine of non-diminution or non-impairment of
the President’s power of pardon by acts of Congress, specifically through legislation,
was strongly adhered to by an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve out an exception from the
pardoning power of the President in the form of “offenses involving graft and
corruption” that would be enumerated and defined by Congress through the
enactment of a law.—This doctrine of non-diminution or non-impairment of the
President’s power of pardon by acts of Congress, specifically through legislation,
was strongly adhered to by an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve out an exception from
the pardoning power of the President in the form of “offenses involving graft and
corruption” that would be enumerated and defined by Congress through the
enactment of a law.
Statutory Construction; It is well-entrenched in this jurisdiction that where
the words of a statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation.—It is well-
entrenched in this jurisdiction that where the words of a statute are clear, plain,
and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. Verba legis non est recedendum. From the words of a
statute there should be no departure. It is this Court’s firm view that the phrase
in the presidential pardon at issue which declares that former President Estrada
“is hereby restored to his civil and political rights” substantially complies with the
requirement of express restoration.
212
212 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
Constitutional Law; Separation of Powers; The form or manner by which the
President, or Congress for that matter, should exercise their respective
Constitutional powers or prerogatives cannot be interfered with unless it is so
provided in the Constitution.—With due respect, I disagree with the overbroad
statement that Congress may dictate as to how the President may exercise his/her
power of executive clemency. The form or manner by which the President, or
Congress for that matter, should exercise their respective Constitutional powers
or prerogatives cannot be interfered with unless it is so provided in the
Constitution. This is the essence of the principle of separation of powers deeply
ingrained in our system of government which “ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in matters
falling within its own constitutionally allocated sphere.” More so, this fundamental
principle must be observed if noncompliance with the form imposed by one branch
on a coequal and coordinate branch will result into the diminution of an exclusive
Constitutional prerogative. For this reason, Articles 36 and 41 of the Revised Penal
Code should be construed in a way that will give full effect to the executive
clemency granted by the President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish the import of the pardon which
emanated from the Office of the President and duly signed by the Chief Executive
himself/herself. The said codal provisions must be construed to harmonize the
power of Congress to define crimes and prescribe the penalties for such crimes and
the power of the President to grant executive clemency. All that the said provisions
impart is that the pardon of the principal penalty does not carry with it the
remission of the accessory penalties unless the President expressly includes said
accessory penalties in the pardon. It still recognizes the Presidential prerogative
to grant executive clemency and, specifically, to decide to pardon the principal
penalty while excluding its accessory penalties or to pardon both. Thus, Articles
36 and 41 only clarify the effect of the pardon so decided upon by the President on
the penalties imposed in accordance with law.
Same; Criminal Law; Pardon; The pardon granted to former President
Estrada admits no other interpretation other than to mean that, upon acceptance
of the pardon granted to him, he regained his FULL civil and political rights —
including the right to seek elective office.—From both law and jurisprudence, the
right to seek public
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elective office is unequivocally considered as a political right. Hence, the
Court reiterates its earlier statement that the pardon granted to former President
Estrada admits no other interpretation other than to mean that, upon acceptance
of the pardon granted to him, he regained his FULL civil and political rights —
including the right to seek elective office.
Same; Preamble; Jurisprudence educates that a preamble is not an essential
part of an act as it is an introductory or preparatory clause that explains the reasons
for the enactment, usually introduced by the word “whereas.”—Jurisprudence
educates that a preamble is not an essential part of an act as it is an introductory
or preparatory clause that explains the reasons for the enactment, usually
introduced by the word “whereas.” Whereas clauses do not form part of a statute
because, strictly speaking, they are not part of the operative language of the
statute. In this case, the whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself alone operate to make the
pardon conditional or to make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
Same; Criminal Law; Pardon; The pardon granted to former President
Estrada was absolute, meaning, it was not only unconditional, it was unrestricted
in scope, complete and plenary in character, as the term “political rights” adverted
to has a settled meaning in law and jurisprudence.—The statement “[h]e is hereby
restored to his civil and political rights,” to the mind of the Court, is crystal clear
— the pardon granted to former President Estrada was absolute, meaning, it was
not only unconditional, it was unrestricted in scope, complete and plenary in
character, as the term “political rights” adverted to has a settled meaning in law
and jurisprudence.
BRION, J., Separate Opinion:
Remedial Law; Special Civil Actions; Certiorari; View that Section 7, Article
IX of the Constitution provides that “unless otherwise provided by this Constitution
or by law, any decision, order or ruling of each Commission may be brought to the
Supreme Court (SC) on certiorari by the aggrieved party.”—Section 7, Article IX of
the Constitution provides that “unless otherwise provided by this Constitution or
by law, any decision, order or ruling of each Commission may
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 be brought to the Supreme Court on certiorari by the aggrieved party.” A
similar provision was found in the 1973 Constitution. In Aratuc v. COMELEC, 88
SCRA 251 (a 1979 case), the Court clarified that unlike in the 1935 Constitution
where the Court had the power of review over the decisions, orders and rulings of
the COMELEC, the 1973 Constitution changed the nature of this remedy
from appellate review to certiorari. Aratuc explained that under the then
existing Constitution and statutory provisions, the certiorari jurisdiction of the
Court over orders, and decisions of the COMELEC was not as broad as it used to
be and should be confined to instances of grave abuse of discretion amounting to
patent and substantial denial of due process. The Court further observed that
these constitutional, statutory and jurisprudential changes show the
definite intent to enhance and invigorate the role of the COMELEC as the
independent constitutional body tasked to safeguard free, peaceful and
honest elections. In other words, the limited reach and scope of certiorari,
compared with appellate review, direct that utmost respect be given the
COMELEC as the constitutional body given the charge of elections.
Same; Same; Same; Grave Abuse of Discretion; View that the grave abuse of
discretion that justifies the grant of certiorari involves a defect of jurisdiction
brought about, among others, by an indifferent disregard for the law, arbitrariness
and caprice, an omission to weigh pertinent considerations, or a decision arrived at
without rational deliberation — due process issues that rendered the decision or
ruling void.—The grave abuse of discretion that justifies the grant
of certiorari involves a defect of jurisdiction brought about, among others, by an
indifferent disregard for the law, arbitrariness and caprice, an omission to weigh
pertinent considerations, or a decision arrived at without rational deliberation
— due process issues that rendered the decision or ruling void. Our 1987
Constitution maintained the same remedy of certiorari in the review of COMELEC
decisions elevated to the Supreme Court as the Constitutional Convention
deliberations show. This constitutional provision has since then been reflected
under Rules 64 and 65 of the Rules of Court.
Constitutional Law; Criminal Law; Pardon; View that when the recipient of
pardon is likewise the people’s choice in an election held after the pardon, it is well
to remember that pardon is an act of clemency and grace exercised to mitigate the
harshness of the applica-
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tion of the law and should be understood in this spirit, i.e., in favor of the
grantee whom the people themselves have adjudged and found acceptable.—When
the recipient of pardon is likewise the people’s choice in an election held after the
pardon, it is well to remember that pardon is an act of clemency and grace
exercised to mitigate the harshness of the application of the law and should be
understood in this spirit, i.e., in favor of the grantee whom the people themselves
have adjudged and found acceptable. It ought not be forgotten that in two high
profile elections, the State had allowed Erap to offer himself as a candidate without
any legal bar and without notice to the voting public that a vote for him could be
rendered useless and stray.
Remedial Law; Civil Procedure; Intervention; Words and Phrases; View that
intervention is a remedy whereby a third party, not originally impleaded in the
proceedings, becomes a litigant in the case so that the intervenor could protect or
preserve a right or interest that may be affected by the proceedings.—Intervention
is a remedy whereby a third party, not originally impleaded in the proceedings,
becomes a litigant in the case so that the intervenor could protect or preserve a
right or interest that may be affected by the proceedings. The intervenor’s interest
must be actual, substantial, material, direct and immediate, and not simply
contingent or expectant. It must be of such direct and immediate character that
the intervenor will either gain or lose by the direct legal operation and effect of the
judgment.
Same; Same; Same; View that Section 2, Rule 19 of the Rules of Court
provides that the time to intervene is at any time before the rendition of judgment
by the trial court.—Since Lim intervened only in the present petition
for certiorari before this Court, the Rules of Court on intervention directly applies.
Section 2, Rule 19 of the Rules of Court provides that the time to intervene is at
any time before the rendition of judgment by the trial court. The Court explained
in Ongco v. Dalisay, 677 SCRA 232 (2012), that “the period within which a person
may intervene is restricted and after the lapse of the period set in Section 2, Rule
19, intervention will no longer be warranted. This is because, basically, intervention
is not an independent action but is ancillary and supplemental to an existing
litigation.”
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Same; Special Civil Actions; Certiorari; Intervention; Parties; View that as a
nonparty to the disqualification case before the Commission on Elections
(COMELEC), Lim cannot be deemed an “aggrieved party” who has earned the
rights under Rule 65 to file a certiorari petition or to intervene to assail the
COMELEC’s decision.—From the perspective of Rule 65 of the Rules of Court,
I add that because Lim was not a party before the COMELEC, he never had the
chance to file a motion for reconsideration before that body — a constitutional
and procedural requirement before a petition for certiorari may be filed
before the Court. As a nonparty to the disqualification case before the
COMELEC, he cannot be deemed an “aggrieved party” who has earned the rights
under Rule 65 to file a certiorari petition or to intervene to assail the COMELEC’s
decision. The Court, in particular, has no jurisdiction to grant the prayer
of Lim to be declared as the winner, especially since the COMELEC never
had the chance to rule on this in its assailed decision.
Election Disputes; Jurisdiction; View that the original jurisdiction to decide
election disputes lies with the Commission on Elections (COMELEC), not with the
Supreme Court (SC).—The original jurisdiction to decide election disputes lies with
the COMELEC, not with this Court. Thus, any ruling from us in the first instance
on who should sit as mayor (in the event we grant the Risos-Vidal petition) will
constitute grave abuse of discretion. Unfortunately, no recourse is available
from our ruling. This character of finality renders it very important for us to
settle the Lim intervention correctly.
Constitutional Law; Criminal Law; Pardon; Words and Phrases; View that
pardon is defined as an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual, on whom it is bestowed, from
the punishment that the law inflicts for a crime he has committed.—Section 19,
Article VII of the Constitution provides for the pardoning power of the President.
It states that except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final judgment. Pardon is defined
as an act of grace, proceeding from the power entrusted with the execution of the
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laws, which exempts the individual, on whom it is bestowed, from the
punishment that the law inflicts for a crime he has committed.
Same; Same; Same; View that the power to pardon, when exercised by the
Chief Executive in favor of persons convicted of public crimes, is plenary, limited
only by the terms of the Constitution; its exercise within these limits is otherwise
absolute and fully discretionary.—The power to pardon, when exercised by the
Chief Executive in favor of persons convicted of public crimes, is plenary, limited
only by the terms of the Constitution; its exercise within these limits is otherwise
absolute and fully discretionary. The reasons for its exercise are not open to
judicial inquiry or review, and indeed it would appear that he may act without any
reason, or at least without any expressed reason, in support of his action.
Remedial Law; Civil Procedure; Judgments; Execution of Judgments; View
that the order of execution should always follow the terms of the fallo or dispositive
portion.—In judicial decisions, the Court’s resolution on a given issue before it is
always embodied in the decision or order’s fallo or dispositive portion. It is the
directive part of the decision or order which must be enforced or, in legal parlance,
subjected to execution. A court that issues an order of execution contrary to the
terms of its final judgment exceeds its jurisdiction, thus rendering its order invalid.
Hence, the order of execution should always follow the terms of the fallo or
dispositive portion.
Constitutional Law; Criminal Law; Pardon; View that a pardon, as an
expression of an executive policy decision that must be enforced, hews closely to the
structure of a court decision.—A pardon, as an expression of an executive policy
decision that must be enforced, hews closely to the structure of a court decision.
Their structures run parallel with each other, with the Whereas Clauses briefly
stating the considerations recognized and, possibly, the intents and purposes
considered, in arriving at the directive to pardon and release a convicted prisoner.
Thus, while a pardon’s introductory or Whereas Clauses may be considered in
reading the pardon (in the manner that the opinion portion of a court decision is
read), these whereas clauses — as a rule — cannot also significantly affect the
pardon’s dispositive portion. They can only do so and in fact may even prevail, but
a clear and patent reason indicating a mistake in the grantor’s intent must be
shown, as had happened in Cobarrubias
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v. People, 596 SCRA 77 (2009), where a mistake intervened in the fallo.
Same; Same; Same; Conditional Pardon; Words and Phrases; View that aside
from absolute pardon, there is the conditional pardon which is defined as “the
exemption of an individual, within certain limits or conditions, from the
punishment which the law inflicts for the offense he had committed resulting in the
partial extinction of his criminal liability.”—Under the BPP’s Revised Rules and
Regulations, “absolute pardon” refers “to the total extinction of the
criminal liability of the individual to whom it is granted without any
condition. It restores to the individual his civil and political rights and
remits the penalty imposed for the particular offense of which he was
convicted.” Aside from absolute pardon, there is the conditional pardon which
is defined as “the exemption of an individual, within certain limits or conditions,
from the punishment which the law inflicts for the offense he had committed
resulting in the partial extinction of his criminal liability.” These are the
authoritative guidelines in determining the nature and extent of the pardon the
President grants, i.e., whether it is absolute or conditional. To stress, the BPP is
the body that investigates and recommends to the President whether or not a
pardon should be granted to a convict, and that closely coordinates with the Office
of the President on matters of pardons and parole.
Same; Same; Same; View that President Gloria Macapagal-Arroyo (PGMA)
clearly intended the granted pardon to be absolute. Thus, the pardon granted totally
extinguished the criminal liability of Erap, including the accessory penalty of
perpetual absolute disqualification.—When PGMA (as President and Head of
the Executive Department to which the BPP belongs) granted Erap
executive clemency and used the words of the BPP rules and regulations,
she raised the inference that her grant was in the spirit in which the
terms of the pardon are understood in the BPP rules. In other words, she
clearly intended the granted pardon to be absolute. Thus, the pardon granted
totally extinguished the criminal liability of Erap, including the accessory penalty
of perpetual absolute disqualification. It cannot be otherwise under the plain and
unequivocal wording of the definition of absolute pardon, and the statement in the
pardon that Erap is restored to his civil and political rights.
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Same; Same; Same; View that irrespective of the nature of the pardon, the
moment the convict avails of the clemency granted, with or without written
acceptance, then the pardon is already accepted.—Simply as an aside (as I feel
the topic does not deserve any extended consideration), I do not believe that
the “acceptance” of the pardon is important in the determination of whether
the pardon extended is absolute or conditional. Irrespective of the nature of the
pardon, the moment the convict avails of the clemency granted, with or without
written acceptance, then the pardon is already accepted. If this is to be the
standard to determine the classification of the pardon, then there would hardly be
any absolute pardon; upon his release, the pardon is deemed accepted and
therefore conditional. If an express acceptance would serve a useful purpose at all,
it is in the binding effect that this acceptance would put in place. As in the case of
an appointment, a pardon can be withdrawn at any time before it is accepted by
the grantor. Acceptance would thus be the means to tie the grantor to the grant.
What is important, to my mind, is proof of the communication of the pardon to the
convict, in the cases when terms and conditions are attached to the pardon.
Communications of these terms, and proof that the convict availed himself of the
granted clemency, would suffice to conclude that the terms and conditions had
been accepted and should be observed.
Same; Civil and Political Rights; View that in Simon v. Commission on
Human Rights, 229 SCRA 117 (1994), the Supreme Court (SC) categorically
explained the rights included under the term “civil and political rights,” in the
context of Section 18, Article XIII of the Constitution which provides for the
Commission on Human Rights’ (CHR’s) power to investigate all forms of human
rights violations involving civil and political rights.”—In Simon v. Commission
on Human Rights, 229 SCRA 117 (1994), the Court categorically explained the
rights included under the term “civil and political rights,” in the context of Section
18, Article XIII of the Constitution which provides for the Commission on Human
Rights’ power to investigate all forms of human rights violations involving civil
and political rights. According to Simon, the term “civil rights,” has been defined
as referring (t)o those (rights) that belong to every citizen of the state or country,
or, in wider sense, to all its inhabitants, and are not connected with the
organization or administration of the government. They include the rights of
property, marriage, equal protection of the laws, freedom of contract, etc. or, as
otherwise
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defined, civil rights are rights appertaining to a person by virtue of his
citizenship in a state or community. Such term may also refer, in its general sense,
to rights capable of being enforced or redressed in a civil action. Also quite often
mentioned are the guarantees against involuntary servitude, religious
persecution, unreasonable searches and seizures, and imprisonment for
debt. Political rights, on the other hand, refer to the right to participate, directly
or indirectly, in the establishment or administration of government, the right of
suffrage, the right to hold public office, the right of petition and, in general,
the rights appurtenant to citizenship vis-à-vis the management of government.
Same; Criminal Law; Pardon; View that the Erap’s pardon sought to comply
with this Revised Penal Code (RPC) requirement by specifically stating that he was
“restored to his civil and political rights.” I take the view that this restoration
already includes the restoration of the right to vote and be voted for as these are
rights subsumed within the “political rights” that the pardon mentions; in the
absence of any express accompanying reservation or contrary intent, this
formulation grants a full restoration that is coterminous with the remitted principal
penalty of reclusion perpetua.—Reclusion perpetua, the penalty imposed on
Erap, carries with it the accessory penalty of civil interdiction for life or during the
period of the sentence and that of perpetual absolute disqualification which
the offender shall suffer even though pardoned as to the principal penalty, unless
the same shall have been remitted in the pardon. The full understanding of the full
practical effects of pardon on the principal and the accessories penalties as
embodied in the RPC, requires the combined reading of Articles 36 and 41 of the
RPC, with Article 41 giving full meaning to the requirement of Article 36 that the
restoration of the right to hold office be expressly made in a pardon if indeed this
is the grantor’s intent. An express mention has to be made of the restoration of the
rights to vote and be voted for since a pardon with respect to the principal penalty
would not have the effect of restoring these specific rights unless their specific
restoration is expressly mentioned in the pardon. The Erap’s pardon sought to
comply with this RPC requirement by specifically stating that he was “restored to
his civil and political rights.” I take the view that this restoration already includes
the restoration of the right to vote and be voted for as these are rights subsumed
within the “political rights” that the pardon mentions; in the absence of any ex-
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press accompanying reservation or contrary intent, this formulation grants
a full restoration that is coterminous with the remitted principal penalty
of reclusion perpetua.
Same; Same; Same; View that to exclude the rights of suffrage and candidacy
from the restoration of civil and political rights shall likewise signify a diminution,
other than what the Constitution allows, of the scope of pardon that the President
can extend under the 1987 Constitution.—In this age and time, “political rights”
cannot be understood meaningfully as rights with core values that our democratic
system protects, if these rights will not include the right to vote and be voted for.
To exclude the rights of suffrage and candidacy from the restoration of civil and
political rights shall likewise signify a diminution, other than what the
Constitution allows, of the scope of pardon that the President can extend under
the 1987 Constitution. Significantly, this Constitution itself did not yet exist when
the Revised Penal Code was passed so that this Code could not have taken into
account the intent of the framers of this Constitution to maintain the plenary
nature of the pardoning power.
Same; Same; Same; View that the Supreme Court (SC) still acknowledged
that pardon may remove all the punitive consequences of a convict’s criminal act,
including the disqualifications or disabilities based on the finding of guilt.—For
clarity, the inclusion phrase is part of the Court’s discussion in Monsanto v.
Factoran, Jr., 170 SCRA 190 (1989), and was made in the context that although
the Court repudiated the Ex ParteGarland, 71 U.S. 833 (1866), ruling (as cited
in Pellobello v. Palatino, 72 Phil. 441 [1940], and Cristobal v. Labrador, 71 Phil.
34 [1940]) that pardon erases the guilt of the convict, the Court still acknowledged
that pardon may remove all the punitive consequences of a convict’s criminal
act, including the disqualifications or disabilities based on the finding of
guilt.
Same; Same; Same; Civil and Political Rights; View that Erap’s pardon fully
complied with the Revised Penal Code (RPC) requirements for the express remission
of the accessory penalty of perpetual absolute disqualification as the pardon in fact
restored him to his civil and political rights.—In the present case, Erap’s pardon
fully complied with the RPC requirements for the express remission of the
accessory penalty of perpetual absolute disqualification as the pardon in fact
restored him to his civil and political rights. In this
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light, the Monsanto ruling still applies: while the PGMA pardon does
not erase Erap’s guilt, it nonetheless remitted his disqualification to run
for public office and to vote as it expressly restored him to his civil and
political rights. The Office of the Solicitor General succinctly expressed
the Monsanto ratio decidendi when it said that the Court, despite ruling against
Monsanto, “nevertheless reaffirmed the well-settled doctrine that the grant of
pardon also removes one’s absolute disqualification or ineligibility to hold public
office.”
Statutes; Statutory Construction; View that laws governing election contests
must be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections.—Technicalities
and procedural niceties in election cases should not be made to stand in the way of
the true will of the electorate. Laws governing election contests must be liberally
construed to the end that the will of the people in the choice of public officials may
not be defeated by mere technical objections. Election contests involve public
interest, and technicalities and procedural barriers must yield if they constitute
an obstacle to the determination of the true will of the electorate in the choice of
their elective officials. The Court frowns upon any interpretation of the law that
would hinder in any way not only the free and intelligent casting of the votes in an
election but also the correct ascertainment of the results.
Remedial Law; Civil Procedure; Res Judicata; View that jurisprudence has
clarified that res judicata does not require absolute identity, but merely substantial
identity.—Res judicata embraces two concepts: first, the bar by prior judgment
under Rule 39, Section 47(b) of the Rules of Court; and second, the preclusion of a
settled issue or conclusiveness of judgment under Rule 39, Section 47(c) of the
Rules of Court. The COMELEC’s 2010 decision resolving whether Erap’s pardon
allowed him to run for elections precludes further discussion of the very same issue
in the 2013 petition filed against his candidacy. Under our review in the present
case that is limited to the determination of grave abuse of discretion and not legal
error, I cannot agree with J. Leonen’s strict application of the requisites of bar by
prior judgment. Jurisprudence has clarified that res judicata does not require
absolute identity, but merely substantial identity. This consideration, under a
grave abuse standard of
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review, leads me to the conclusion that we cannot reverse the COMELEC’s
decision to apply res judicata, even if it meant the application of the concept of bar
by prior judgment.
Same; Same; Same; View that res judicata, by way of bar by prior judgment,
binds the parties to a case, as well as their privies to its judgment, and prevents
them from re-litigating the same cause of action in another case.—Res judicata, by
way of bar by prior judgment, binds the parties to a case, as well as their privies
to its judgment, and prevents them from re-litigating the same cause of action in
another case. Otherwise put, the judgment or decree of the court of competent
jurisdiction on the merits concludes the litigation between the parties, as well as
their privies, and constitutes a bar to a new action or suit involving the same cause
of action before the same or other tribunal. Res judicata through bar by prior
judgment requires (a) that the former judgment be final; (b) that the judgment was
rendered by a court of competent jurisdiction; (c) that it is a judgment on the
merits; and (d) that, between the first and the second actions, there is identity of
parties, subject matters, and causes of action.
Same; Same; Judgments; Immutability of Judgments; View that once a
judgment attains finality, it becomes immutable and unalterable. It may not be
changed, altered or modified in any way even if the modification is for the purpose
of correcting an erroneous conclusion of fact or law.—Once a judgment attains
finality, it becomes immutable and unalterable. It may not be changed, altered or
modified in any way even if the modification is for the purpose of correcting an
erroneous conclusion of fact or law. This is the “doctrine of finality of
judgments” which binds the immediate parties and their privies in
personal judgments; the whole world in judgments in rem; and even the
highest court of the land as to their binding effect.
Same; Same; Same; Same; Judgment on the Merits; View that a judgment is
on the merits when it determines the rights and liabilities of the parties based on
the disclosed facts, irrespective of formal, technical or dilatory objections.—A
judgment is on the merits when it determines the rights and liabilities of the
parties based on the disclosed facts, irrespective of formal, technical or dilatory
objections.
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Same; Same; Same; Res Judicata; View that when a right or fact has been
judicially tried and determined by a court of competent jurisdiction or an
opportunity for such trial has been given, the judgment of the court, as long as it
remains unreversed, should be conclusive upon the parties and those in privity with
them.—At this juncture, I reiterate my disagreement with J. Leonen in strictly
applying the requisites for the application of res judicata through bar by prior
judgment. The Court itself, in numerous cases, did not strictly apply the
requirement that there must be absolute identity of causes of action. In fact, the
Court’s rulings on this particular element leaned towards substantial identity of
causes of action and its determination is arrived at not on the basis of the facial
value of the cases but after an in-depth analysis of each case. The reason why
substantial identity of causes of action is permitted is to preclude a situation where
a party could easily escape the operation of res judicata by changing the form of
the action or the relief sought. The difference in form and nature of the two actions
is also immaterial and is not a reason to exempt these cases from the effects of res
judicata. The philosophy behind this rule prohibits the parties from litigating the
same issue more than once. When a right or fact has been judicially tried and
determined by a court of competent jurisdiction or an opportunity for such
trial has been given, the judgment of the court, as long as it remains
unreversed, should be conclusive upon the parties and those in privity with
them. In this way, there should be an end to litigation by the same parties and
their privies over a subject, once the issue involving the subject is fully and fairly
adjudicated.
Mendoza, J., Concurring Opinion:
Constitutional Law; Criminal Law; Pardon; View that the acceptance confers
effectivity in both absolute and conditional pardon.—I am of the view that the
acceptance confers effectivity in both absolute and conditional pardon. Pardon is
defined as “an act of grace, proceeding from the power entrusted with the execution
of the laws, which exempts the individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed. It is the private, though
official act of the executive magistrate, delivered to the individual for whose benefit
it is intended, and not communicated officially to the Court. ... A pardon is a deed,
to the validity of
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which delivery is essential, and delivery is not complete without acceptance.”
Same; Same; Same; View that the significance of “acceptance” is more
apparent in cases of “commutation,” which is the substitution of a lighter
punishment for a heavier one.—An “acceptance” does not classify a pardon as
conditional just by the mere reception and the placing of an inscription thereon. I
am not prepared to ignore the very intention and content of a pardon as standards
to determine its nature, as against the mere expediency of its delivery and
acceptance. I am much more amenable to the rule consistent with the benevolent
nature of pardon: that it is an act of forgiveness predicated on an admission of
guilt. To be effective, therefore, this admission of past wrongdoing must be
manifested by the acceptance of a pardon, absolute or conditional. Further, the
significance of “acceptance” is more apparent in cases of “commutation,” which is
the substitution of a lighter punishment for a heavier one.
Same; Same; Same; View that the “whereas clauses” in Estrada’s pardon
cannot adversely affect the ultimate command which it evokes, that is, executive
clemency is granted to Estrada absent any condition.—Primarily, rules on
statutory construction provide that whereas clauses, do not form part of a statute,
strictly speaking; they are not part of the operative language of the statute. While
they may be helpful to the extent that they articulate the general purpose or reason
underlying a new enactment, reliance on whereas clauses as aids in construing
statutes is not justified when their interpretation “control the specific terms of the
statute.” As applied in Estrada’s case, the subject whereas clause does not purport
to control or modify the unequivocal terms found in the pardon’s body. In this
sense, the “whereas clauses” in Estrada’s pardon cannot adversely affect the
ultimate command which it evokes, that is, executive clemency is granted to
Estrada absent any condition.
Same; Same; Same; View that as no condition was patently evinced in the
document, the Supreme Court (SC) is at no liberty to shape one, only because the
plain meaning of the pardon’s text is unacceptable for some waylaid and extraneous
reasons. That the executive clemency given to Estrada was unaccompanied by any
condition is clearly visible in the text of the pardon.—For a condition to be
operative, the condition must appear on the face of the docu-
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ment. The conditions must be clear and specific. The reason is that the
conditions attached to a pardon should be definite and specific as to inform the
person pardoned of what would be required. As no condition was patently evinced
in the document, the Court is at no liberty to shape one, only because the plain
meaning of the pardon’s text is unacceptable for some waylaid and extraneous
reasons. That the executive clemency given to Estrada was unaccompanied by any
condition is clearly visible in the text of the pardon. The Court must simply read
the pardon as it is written. There is no necessity to resort to construction.
Same; Same; Same; View that a statement describing Estrada’s previous
commitment not to seek any elective office cannot operate as a condition for his
pardon, sans any indication that it was intended to be so.—Suffice it to say, a
statement describing Estrada’s previous commitment not to seek any elective office
cannot operate as a condition for his pardon, sans any indication that it was
intended to be so. In light of the clear absence of any condition in the pardon, no
ambiguity warrants interpretation by the Court. At the most, the subject whereas
clause depicts the state of affairs at the time when the pardon was granted. It
should not be considered as part and parcel of the entire act as it serves neither
the ability to enlarge or confer powers nor the authority to control the words of the
act.
Same; Same; Same; Separation of Powers; View that the pardoning power is
granted exclusively to the President amidst the constitutional scheme of checks and
balances; It would do the Court well to remember that neither the Congress nor the
courts can question the motives of the President in the use of the power.—The
pardoning power is granted exclusively to the President amidst the constitutional
scheme of checks and balances. While it is most ideal that the executive strictly
adheres to this end, it is undeniable that the pardoning power is still dependent
on the grantor’s measure of wisdom and sense of public policy. This reality invites,
if not bolsters, the application of the political question doctrine. The only weapon,
which the Court has freedom to wield, is the exercise of judicial power against a
blatant violation of the Constitution. When unavailing, the Court is constrained to
curb its own rebuking power and to uphold the acumen of a coequal branch. It
would do the Court well to remember that neither the Congress nor the courts can
question the motives of the President in the use of the power.
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Same; Same; Same; View that a person adjudged guilty of an offense is a
convicted criminal, though pardoned; he may be deserving of punishment, though
left unpunished; and the law may regard him as more dangerous to society than
one never found guilty of crime, though it places no restraints upon him following
his conviction; Estrada’s past conviction for plunder would forever form part of his
person, whether as a private individual or a public officer.—Lest it be
misunderstood, this conclusion does not degenerate from the doctrine that a
pardon only relieves a party from the punitive consequences of his past crimes,
nothing more. Indeed, “a person adjudged guilty of an offense is a convicted
criminal, though pardoned; he may be deserving of punishment, though left
unpunished; and the law may regard him as more dangerous to society than one
never found guilty of crime, though it places no restraints upon him following his
conviction.” Estrada was not reborn into innocence by virtue of the forgiveness
bestowed in by the pardon. The moral stain caused by his past crimes remains to
be part of his person, then as now. In no way did his pardon serve as a stamp of
incorruptibility. It is not a magic spell that superimposes virtuousness over guilt.
His past conviction for plunder would forever form part of his person, whether as
a private individual or a public officer.
 Same; Same; Same; View that one thing is clear, in the exercise of her
exclusive power to grant executive clemency, President Gloria Macapagal-Arroyo
(PGMA) pardoned Estrada, thereby wiping away the penalties of his crime and
entitling him the right to run for public office.—Without squabble, plunder is a
crime involving moral turpitude. Nevertheless, this fact alone negates a
mechanical application of statutory provisions on disqualification. One thing is
clear, in the exercise of her exclusive power to grant executive clemency, PGMA
pardoned Estrada, thereby wiping away the penalties of his crime and entitling
him the right to run for public office. Corollary to this, Estrada’s fitness to hold
public office is an issue that should not concern the Court. All that the Court can
rule on is the availability of Estrada’s right to seek public office. This ruling on his
eligibility is not tantamount to a declaration that Estrada befits a person wholly
deserving of the people’s trust. The Manileños’ decision alone can mould the city’s
journey to either development or decline. Indeed, election expresses the sovereign
will of the people consistent with the principle of vox populi est suprema lex. This
is the beauty of democracy which the Court must endeavour to protect at all cost.
As
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Abraham Lincoln put it with both guile and eloquence: Elections belong to
the people. It’s their decision. If they decide to turn their back on the fire and burn
their behinds, then they will just have to sit on their blisters.
Leonen, J., Dissenting Opinion:
Election Law; Cancellation of Certificate of Candidacy; Disqualification of
Candidates; View that it is clear that a false claim of eligibility made in a certificate
of candidacy (CoC) despite a prior conviction which carries with it the accessory
penalty of disqualification is a ground for a Section 78 petition. Nevertheless, it is
also a ground for a petition for disqualification.—From these, it is clear that a false
claim of eligibility made in a certificate of candidacy despite a prior conviction
which carries with it the accessory penalty of disqualification is a ground for a
Section 78 petition. Nevertheless, it is also a ground for a petition for
disqualification. As explained in Dominador Jalosjos, Jr., 683 SCRA 1 (2012):
What is indisputably clear is that the false material representation of Jalosjos is a
ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prisión mayor, a petition under
Section 12 of the Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice whether to anchor his
petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section
40 of the Local Government Code. The law expressly provides multiple
remedies and the choice of which remedy to adopt belongs to the petitioner.
The concurrent availability of a Section 78 petition with a petition for
disqualification should not be interpreted as diminishing the distinction between
the two (2) remedies.
Same; Same; Same; View that this petition unambiguously anchors itself on
statutorily prescribed disqualifications — under Section 40 of the Local
Government Code (LGC), as well as Section 12 of the Omnibus Election Code (OEC)
— which jurisprudence has explicitly recognized as a valid basis for both a petition
for disqualification and a Section 78 petition.—This petition unambiguously
anchors itself on statutorily prescribed disqualifications — under Section 40 of the
Local Government Code, as well as Section 12 of the Omnibus Election Code —
which jurisprudence has explicitly recognized as a valid basis for both a petition
for disqualification and a Section 78
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petition. It follows that the petition was filed on time. The petition was filed
on January 14, 2013, after the last day for filing of certificates of candidacy, and
before the date of Estrada’s proclamation as Mayor on May 17, 2013. This is within
the period permitted by Rule 25, Section 3 of COMELEC Resolution No. 9523.
Remedial Law; Civil Procedure; Intervention; Legal Standing; View that in
seeking to intervene, Lim has made no pretensions of acting as a representative of
the general public and, thus, advancing the public interest; Though what is
involved is a public office, what Lim seeks to enforce is, fundamentally, a (supposed)
right accruing to him personally to assume an office.—In seeking to intervene, Lim
has made no pretensions of acting as a representative of the general public and,
thus, advancing the public interest. He merely prays that he be declared the
elected Mayor of the City of Manila following a declaration that Estrada was
disqualified to run for the same post. Though what is involved is a public office,
what Lim seeks to enforce is, fundamentally, a (supposed) right accruing to
him personally to assume an office. Lim has enough interest at stake in this case
as would enable him to intervene. Rule 19, Section 1 of the 1997 Rules of Civil
Procedure provides for who may intervene in a pending court action: Section
1. Who may intervene.—A person who has a legal interest in the matter in litigation,
or in the success of either of the parties, or an interest against both, or is so situated
as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof may, with leave of court, be allowed to
intervene in the action. The court shall consider whether or not the intervention
will unduly delay or prejudice the adjudication of the rights of the original parties,
and whether or not the intervenor’s rights may be fully protected in a separate
proceeding.
Election Law; Cancellation of Certificate of Candidacy; Disqualification of
Candidates; View that it is true that the principal matter for resolution in this case
is whether Estrada, based on circumstances personally applying to him, was
qualified to run for Mayor of the City of Manila. Nevertheless, the logical
consequence of a decision adverse to Estrada is the need to identify who shall,
henceforth, assume the position of Mayor.—It is true that the principal matter for
resolution in this case is whether Estrada, based on
circumstances personally applying to him, was qualified to run for
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Mayor of the City of Manila. Nevertheless, the logical consequence of a
decision adverse to Estrada is the need to identify who shall, henceforth, assume
the position of Mayor. Lim claims that he is entitled to replace Estrada. In support
of this, he cites a decision of this court and claims that, as a disqualified candidate,
the votes cast for Estrada should be deemed stray votes. This would result in Lim
being the qualified candidate obtaining the highest number of votes, which would,
in turn, entitle him to being proclaimed the elected Mayor of the City of Manila.
Remedial Law; Civil Procedure; Intervention; Legal Standing; View that it is
worth emphasizing that [t]he purpose of intervention is to enable a stranger to an
action to become a party in order for him to protect his interest and for the court to
settle all conflicting claims.—It is worth emphasizing that “[t]he purpose of
intervention is to enable a stranger to an action to become a party in order for him
to protect his interest and for the court to settle all conflicting claims. Intervention
is allowed to avoid multiplicity of suits more than on due process considerations.”
Lim’s intervention serves this purpose. It enables the resolution of an issue which
is corollary to one of the two ways by which this court may decide on the issue of
Estrada’s disqualification.
Election Law; Disqualification of Candidates; Res Judicata; View that the
2010 disqualification cases filed against Estrada in connection with his 2010 bid
for the presidency do not bar the present case on account of res judicata.—The 2010
disqualification cases filed against Estrada in connection with his 2010 bid for the
presidency do not bar the present case on account of res judicata. For one, the 2010
disqualification cases filed by Atty. Evilio C. Pormento and Mary Lou B. Estrada
involved issues and were anchored on causes of action that are markedly different
from those in the present case. These cases were anchored on the constitutional
prohibition against a President’s reelection, as provided by Article VII, Section 4
of the 1987 Constitution, and the additional ground that Estrada was a nuisance
candidate. To the contrary, the present case is anchored on Estrada’s conviction
for plunder which carried with it the accessory penalty of perpetual absolute
disqualification and invokes Section 40 of the Local Government Code, as well as
Section 12 of the Omnibus Election Code.
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Same; Same; View that Estrada, though adjudged by the Commission on
Elections (COMELEC) Second Division and COMELEC En Banc to be qualified
for a second bid at the presidency, was never conclusively adjudged by this court to
be so qualified.—Estrada, though adjudged by the COMELEC Second Division and
COMELEC En Banc to be qualified for a second bid at the presidency, was never
conclusively adjudged by this court to be so qualified. The 2010 disqualification
cases reached their conclusion not because it was determined, once and for all, that
Estrada was not disqualified, but because — with Estrada’s loss in the elections —
there was no longer a controversy to resolve. There was no “determin[ation of] the
rights and liabilities of the parties based on the disclosed facts, irrespective of
formal, technical or dilatory objections”; neither was there “a determination of
which party is right.” While the 2010 disqualification cases may have reached their
literal end or terminal point, there was no final judgment on the merits.
Same; Same; View that Section 12 of the Omnibus Election Code (OEC)
provides for disqualifications for elective offices in general; Section 40 of the Local
Government Code (LGC) provides for disqualifications for local elective offices in
particular.—Section 12 of the Omnibus Election Code provides for
disqualifications for elective offices in general: Section 12. Disqualifications.—Any
person who has been declared by competent authority insane or incompetent,
or has been sentenced by final judgment for subversion, insurrection,
rebellion or for any offense for which he has been sentenced to a penalty
of more than eighteen months or for a crime involving moral turpitude,
shall be disqualified to be a candidate and to hold any office, unless he
has been given plenary pardon or granted amnesty. This [sic]
disqualifications to be a candidate herein provided shall be deemed removed upon
the declaration by competent authority that said insanity or incompetence had
been removed or after the expiration of a period of five years from his service of
sentence, unless within the same period he again becomes disqualified. (Emphasis
supplied) Section 40 of the Local Government Code provides for disqualifications
for local elective offices in particular: SECTION 40. Disqualifications.—The
following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years
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after serving sentence; (b) Those removed from office as a result of an
administrative case; (c) Those convicted by final judgment for violating the oath of
allegiance to the Republic; (d) Those with dual citizenship; (e) Fugitives from
justice in criminal or nonpolitical cases here or abroad; (f) Permanent residents in
a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and (g) The
insane or feeble-minded.
Constitutional Law; Executive Clemency; View that jurisprudence as recent
as 2007 clarified that a court cannot preempt the grant of executive clemency.—The
present, the 1987 Constitution, requires prior conviction. Nevertheless, it retains
the fundamental regard for the pardoning power as executive in nature.
Jurisprudence dating to 1991 noted how the 1986 Constitutional Commission
rejected a proposal to render the coverage of the pardoning power susceptible to
legislative interference, particularly in matters relating to graft and corruption.
Likewise, jurisprudence as recent as 2007 clarified that a court cannot preempt
the grant of executive clemency.
Same; Same; View that the 1987 Constitution, in Article VII, Section 19,
enumerates the acts or means through which the President may extend clemency.—
The 1987 Constitution, in Article VII, Section 19, enumerates the acts or means
through which the President may extend clemency: (1) reprieve, or “the deferment
of the implementation of the sentence for an interval of time”; (2) commutation,
which “refers to the reduction of the duration of a prison sentence of a prisoner”;
(3) remission of fines and forfeitures; (4) pardon; and (5) amnesty.
Same; Pardon; View that Article VII, Section 19 of the 1987 Constitution
provides two (2) limitations on the President’s exercise of the power to pardon: first,
it can only be given after final conviction; and second, it cannot be exercised “in
cases of impeachment, or as otherwise provided in this Constitution.”—Article VII,
Section 19 of the 1987 Constitution provides two (2) limitations on the President’s
exercise of the power to pardon: first, it can only be given after final conviction;
and second, it cannot be exercised “in cases of impeachment, or as otherwise
provided in this Constitution.” Elsewhere in the Constitution, Article IX, C,
Section 5 provides that: “No pardon,
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amnesty, parole, or suspension of sentence for violation of election laws,
rules, and regulations shall be granted by the President without the favorable
recommendation of the Commission [on Elections].” Outside of the Constitution,
the Revised Penal Code contains provisions relating to pardon. Article 36 of the
Revised Penal Code provides that: “A pardon shall in no case exempt the culprit
from the payment of the civil indemnityimposed upon him.” The same Article 36
prescribes that for pardon to effect the restoration of the rights of suffrage and to
hold public office, “such rights [must] be expressly restored by the terms of the
pardon.”
Election Law; Criminal Law; Pardon; View that on suffrage and/or the rights
to vote for and be elected to public office, Articles 40 to 43 of the Revised Penal Code
(RPC) provide that the penalties of perpetual absolute disqualification, temporary
absolute disqualification, perpetual special disqualification, and perpetual special
disqualification on suffrage, which attach as accessory penalties to death, reclusion
perpetua, reclusion temporal, prisión mayor and prisión correccional, as the case
may be, shall still be suffered by the offender even though pardoned as to the
principal penalty, “unless . . . expressly remitted in the pardon.”—Also on suffrage
and/or the rights to vote for and be elected to public office, Articles 40 to 43 of the
Revised Penal Code provide that the penalties of perpetual absolute
disqualification, temporary absolute disqualification, perpetual special
disqualification, and perpetual special disqualification on suffrage, which attach
as accessory penalties to death, reclusion perpetua, reclusion temporal, prisión
mayor and prisión correccional, as the case may be, shall still be suffered by the
offender even though pardoned as to the principal penalty, “unless . . . expressly
remitted in the pardon.”
Same; Same; Same; View that Articles 36 and 41 of the Revised Penal Code
(RPC) impress upon the President the significance of departing from the purely
private consequences of pardon should he or she stray into the public affair of
restoring a convict’s rights of suffrage and/or to hold public office.—Recall that the
manner by which the 1987 Constitution phrases its investiture on the President of
the pardoning power now includes the phrase “as otherwise provided in this
Constitution.” This phrase affirms the imperative of reading and interpreting the
Constitution in its entirety, not taking a provision in isolation. The pardoning
power of the President must,
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thus, not be divorced from the Constitution’s injunction that “[p]ublic office
is a public trust.” Read in harmony with this injunction, Articles 36 and 41 of the
Revised Penal Code impress upon the President the significance of departing from
the purely private consequences of pardon should he or she stray into the public
affair of restoring a convict’s rights of suffrage and/or to hold public office.
Same; Same; Same; View that no grant of constitutional power is immune
from review if it is done arbitrarily or without reason, capriciously, or on the basis
of whim.—Parenthetically, the Constitution also grants this court jurisdiction to
determine “whether or not there has been a grave abuse of discretion amounting
to . . . excess of jurisdiction on the part of any branch or instrumentality of the
Government.” This means that no grant of constitutional power is immune from
review if it is done arbitrarily or without reason, capriciously, or on the basis of
whim. However, this court’s power of review in the present case is not raised by
any party and, thus, not an issue that this court must decide.
Same; Same; Same; View that from the plain text of the dispositive portion of
the pardon extended by former President Gloria Macapagal-Arroyo (PGMA) to
Estrada, it can be readily seen that there is no categorical statement actually saying
that Estrada’s rights to vote and be voted for elective public office are restored, or
that the penalty of perpetual absolute disqualification is remitted.—The dispositive
portion of the pardon extended by former President Gloria Macapagal-Arroyo to
Estrada reads: IN VIEW HEREOF and pursuant to the authority conferred upon
me by the Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty
of Reclusion Perpetua. He is hereby restored to his civil and political rights. The
forfeitures imposed by the Sandiganbayan remain in force and in full, including
all writs and processes issued by the Sandiganbayan in pursuance hereof, except
for the bank account(s) he owned before his tenure as President. Upon acceptance
of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.
From the plain text of this disposition, it can be readily seen that there is
no categorical statement actually saying that Estrada’s rights to vote and be voted
for elective public office are restored, or that the penalty of perpetual absolute
disqualification is remitted.
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Constitutional Law; Civil and Political Rights; View that Estrada capitalizes
on the broad conception of civil and political rights as including in its scope the
rights of suffrage and the right to hold public office.—Estrada capitalizes on the
broad conception of civil and political rights as including in its scope the rights of
suffrage and the right to hold public office. That is precisely the handicap in his
theory: It is broad; it fails to account for requirements relating to specific rights.
As against the broad concept of civil and political rights as an expansive composite
or a vast spectrum of rights having to do with liberty and membership in the
political community, Articles 36 and 41 of the Revised Penal Code specifically deal
with the rights of suffrage and to hold public office. Juxtaposed with the manifold
category of civil and political rights, the effect of Articles 36 and 41 is that, in the
specific context of the President’s exercise of the power to grant pardon to a convict,
the rights of suffrage and to hold public office are segregated from all other similar
rights.
Same; Pardon; View that it is revealing that former President Gloria
Macapagal-Arroyo (PGMA) chose to deviate from many historical examples and
from what appears to be common practice.—The President must be presumed to be
fully cognizant of the significance and consequences of the manner by which he or
she executes official acts, as well as the manner by which they are formally reduced
to writing. It is revealing that former President Gloria Macapagal-Arroyo chose to
deviate from many historical examples and from what appears to be common
practice. Aware of the significance of excluding the qualifier “full,” she chose to
grant pardon to Estrada under entirely generic and indistinct terms.
Statutory Construction; Preamble; View that jurisprudence and other official
acts of this court are replete with instances in which reference to preambular clauses
was resorted to in interpreting instruments other than statutes and official acts of
the President.—Jurisprudence and other official acts of this court are replete with
instances in which reference to preambular clauses was resorted to in interpreting
instruments other than statutes and official acts of the President. In Licaros v.
Gatmaitan, 362 SCRA 548 (2001), this court sustained the Court of Appeals’
reference to a whereas clause in a contract between private parties (i.e., a
memorandum of agreement) and thereby the conclusion that the parties “intended
to treat
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their agreement as one of conventional subrogation.” In Kuwait
Airways Corporation v. Philippine Airlines, Inc., 587 SCRA 399 (2009), it was
impliedly acknowledged that resort to a whereas clause is permissible in
interpreting a contract entered into by the government; except that, because the
circumstances have changed, it was deemed unnecessary to proceed to an
interpretation in light of the relevant whereas clause. In Conte v. Commission on
Audit, 264 SCRA 19 (1996), this court referred to whereas clauses in interpreting
a resolution issued by the Social Security System. Similarly, this court’s En
Banc resolution in A.M. No. 99-8-01-SC, issued by this court in the exercise of its
rule-making power, cited a statute’s whereas clause.
Constitutional Law; Pardon; View that the pardon extended to Estrada is
definite by its omission: There is neither an express restoration of Estrada’s rights
to vote and be voted for elective public office nor a remission of his perpetual
absolute disqualification.—The pardon extended to Estrada is definite by its
omission: There is neither an express restoration of Estrada’s rights to vote and be
voted for elective public office nor a remission of his perpetual absolute
disqualification. To this extent, it is clear and unambiguous. This should suffice to
put an end to Estrada’s asseverations that he was qualified to run for Mayor of
Manila. Nevertheless, even if the position that there remains room for
interpretation was to be indulged, a reading of the pardon as a whole, and an
illumination, through the preambular clauses, of the pardon’s supposed ambiguity,
will lead to the same conclusion: Estrada was and remains to be disqualified.
Criminal Law; Plunder; View that in 2001, in Estrada v. Sandiganbayan,
369 SCRA 394, the Supreme Court (SC), against the asseverations of Estrada
himself, ruled that plunder is inherently immoral, i.e., malum in se.—In 2001,
in Estrada v. Sandiganbayan, 369 SCRA 394, this court, against the asseverations
of Estrada himself, ruled that plunder is inherently immoral, i.e., malum in se. In
so doing, this court, quoting the concurring opinion of Justice Vicente V. Mendoza,
emphasized that any doubt on the inherent immorality of plunder “must be
deemed to have been resolved in the affirmative by the decision of Congress in
1993 to include it among the heinous crimes punishable by reclusion perpetua to
death.” Estrada v. Sandiganbayan, quoting People v. Echegaray, 267 SCRA
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682 (1997), unequivocally underscored the abhorrence that animates the
classification of plunder as a heinous crime punishable by death.
Same; Same; View that plundering as a crime and by its scale, entails more
than greed and covetousness.—Plundering as a crime and by its scale, therefore,
entails more than greed and covetousness. It conjures the image of a public officer
deluded in the thought that he or she is some overlord, free to ravage and entitled
to seize all that his or her realm can provide. It entails more than ordinary moral
turpitude (i.e., an inherently immoral act) as acts like theft, robbery, bribery,
profiteering, estafa, extortion, and embezzlement have been categorized. It evinces
such a degree of depravity and debasement so heinous that, were it not for the
subsequent enactment of a statute (i.e., Republic Act No. 9346), it would remain
punishable by death.
Same; Same; View that Congress, in choosing to penalize plunder with
reclusion perpetua to death, must certainly have been cognizant of how these
penalties did not only entail the deprivation of the right to life and/or liberty, but
also of how, consistent with Articles 40 and 41 of the Revised Penal Code (RPC),
they carried the accessory penalty of perpetual absolute disqualification.—
Recognition must be given to the legislative wisdom underlying the choice of
penalty. This is not only with respect to the severity of punishment chosen (i.e.,
deprivation of life or deprivation of liberty for the longest duration contemplated
by the scale of penalties under the Revised Penal Code) but similarly with all other
accessories that the penalties of reclusion perpetua and/or death entail. Congress,
in choosing to penalize plunder with reclusion perpetua to death, must certainly
have been cognizant of how these penalties did not only entail the deprivation of
the right to life and/or liberty, but also of how, consistent with Articles 40 and 41
of the Revised Penal Code, they carried the accessory penalty of perpetual absolute
disqualification.
Constitutional Law; Pardon; View that the inclusion of the third preambular
clause is not empty rhetoric. It is an indispensable qualifier indicating that Estrada
was pardoned precisely in view of his promise to no longer seek (elective) public
office.—Consider the recognition made in the first and second preambular clauses
that Estrada was already more than 70 years old and had been in detention for
about six and a half years. These preambular clauses provide
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context to why President Gloria Macapagal-Arroyo saw wisdom in tempering
Estrada’s suffering: Keeping in prison a septuagenarian — a man who could well
be considered to be in the twilight years of his life — may be too severe; anyway,
Estrada had already been deprived of liberty for a considerable length of time. The
third preambular clause is even more revealing. It unveils the undertaking made
by Estrada (acknowledged and unchallenged by him through his unqualified
handwritten acceptance) that he would no longer embark on the very same affair,
i.e., (elective) public office, that facilitated his commission of plunder. The inclusion
of the third preambular clause is not empty rhetoric. It is an indispensable qualifier
indicating that Estrada was pardoned precisely in view of his promise to no longer
seek (elective) public office. Similarly, it establishes that the grant of pardon
notwithstanding, there is no betrayal of the fundamental policy of aversion against
plunder as an affront to “the larger socio-political and economic context.”
Election Law; Disqualification of Candidates; View that Estrada was
disqualified to run for Mayor of the City of Manila in the May 13, 2013 elections.
Moreover, his perpetual absolute disqualification not having been remitted, and his
rights to vote and be voted for elective public office not having been restored, Estrada
remains bound to suffer the effects of the penalty of perpetual absolute
disqualification, as listed in Article 30 of the Revised Penal Code (RPC).—In sum,
Estrada was disqualified to run for Mayor of the City of Manila in the May 13,
2013 elections. Moreover, his perpetual absolute disqualification not having been
remitted, and his rights to vote and be voted for elective public office not having
been restored, Estrada remains bound to suffer the effects of the penalty of
perpetual absolute disqualification, as listed in Article 30 of the Revised Penal
Code. Specifically, he remains disqualified from exercising the right to vote in any
election for any popular elective office, and he remains barred from occupying any
public office, elective, or otherwise.
Same; Same; View that Estrada did secure more votes than Lim, that much
can be conceded; but these votes were cast in favor of an ineligible candidate, i.e.,
one who was no candidate at all.—Estrada is very loosely invoking the concept of
a “sovereign” as though a plurality of votes is the sole determinant of the “sovereign
will.” In the first place, what is involved here is merely an election
239
VOL. 747, JANUARY 21, 2015 239
Risos-Vidal vs. Commission on Elections
for a local elective position. Certainly, the voters of a single local government
unit ought not to be equated with the “sovereign Filipino people.” So blithely is
Estrada celebrating his 349,770 votes, he seems to forget that Lim was not even
too far off with 313,764 votes. Estrada celebrates the casting of votes in his favor
as a seemingly indubitable expression of the sovereign will in trusting him with
elective public office. He forgets that a mere three years prior, the voters, not just
of the City of Manila, but of the entire Republic, repudiated him and rejected his
attempt to once again secure the Presidency. He placed a distant second, behind
by more than 5.72 million votes, to President Benigno Simeon Aquino III. Estrada
did secure more votes than Lim, that much can be conceded; but these votes were
cast in favor of an ineligible candidate, i.e., one who was no candidate at all.
Same; Same; View that by definition, an ineligible individual is not even a
candidate in the first place.—By definition, an ineligible individual is not even a
candidate in the first place. It is, therefore, erroneous to refer to him or her as a
“winner,” that is, as the “winning candidate,” should he or she obtain the plurality
of votes. Consequently, it is illogical to refer to the candidates who are trailing in
the vote count as “losers,” which is what labels like “second-placer” entail. As his
or her ineligibility as a candidate remains, the number of votes cast for him or her
is ultimately not decisive of who must be proclaimed as winner: The ballot cannot
override the constitutional and statutory requirements for qualifications and
disqualifications of candidates. When the law requires certain qualifications to be
possessed or that certain disqualifications be not possessed by persons desiring to
serve as elective public officials, those qualifications must be met before one even
becomes a candidate. When a person who is not qualified is voted for and
eventually garners the highest number of votes, even the will of the electorate
expressed through the ballot cannot cure the defect in the qualifications of the
candidate. To rule otherwise is to trample upon and rent asunder the very law that
sets forth the qualifications and disqualifications of candidates. We might as well
write off our election laws if the voice of the electorate is the sole determinant of
who should be proclaimed worthy to occupy elective positions in our republic.
240
240 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Petition-in-
Intervention.
The facts are stated in the opinion of the Court.
Rodolfo G. Palattao for petitioner.
Renato G. Dela Cruz for petitioner-intervenor.
Pacifico A. Agabin for private respondent.
LEONARDO-DE CASTRO, J.:
Before the Court are (1) a Petition for Certiorari filed under Rule 64, in relation
to Rule 65, both of the Revised Rules of Court, by Atty. Alicia Risos-Vidal (Risos-
Vidal), which essentially prays for the issuance of the writ of certiorari annulling
and setting aside the April 1, 20131 and April 23, 20132 Resolutions of the
Commission on Elections (COMELEC), Second Division and En Banc,
respectively, in SPA No. 13-211 (DC), entitled “Atty. Alicia Risos-Vidal v. Joseph
Ejercito Estrada” for having been rendered with grave abuse of discretion
amounting to lack or excess of jurisdiction; and (2) a Petition-in-Intervention3 filed
by Alfredo S. Lim (Lim), wherein he prays to be declared the 2013 winning
candidate for Mayor of the City of Manila in view of private respondent former
President Joseph Ejercito Estrada’s (former President Estrada) disqualification to
run for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former President
Estrada, a former President of the Republic of the Philippines, for the crime of
plunder in Criminal Case No.
_______________
1 Rollo (Vol. I), pp. 39-46.
2 Id., at pp. 49-50.
3 Id., at pp. 395-414.
241
VOL. 747, JANUARY 21, 2015 241
Risos-Vidal vs. Commission on Elections
 26558, entitled “People of the Philippines v. Joseph Ejercito Estrada, et al.” The MALACAÑAN PALACE
dispositive part of the graft court’s decision reads: MANILA
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in
Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito
Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in
and penalized by Republic Act No. 7080, as amended. On the other hand, for failure
of the prosecution to prove and establish their guilt beyond reasonable doubt, the
Court finds the accused Jose “Jinggoy” Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the Court hereby orders
their ACQUITTAL. WHEREAS, this Administration has a policy of releasing inmates who have
The penalty imposable for the crime of plunder under Republic Act No. 7080, reached the age of seventy (70),
as amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being _______________
no aggravating or mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article 63 of the Revised Penal Code. Accordingly, the 4 Id., at pp. 260-262.
accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer 243
the penalty of Reclusion Perpetua and the accessory penalties of civil VOL. 747, JANUARY 21, 2015 243
interdiction during the period of sentence and perpetual absolute disqualification. Risos-Vidal vs. Commission on Elections
The period within which accused Former President Joseph Ejercito Estrada
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a
has been under detention shall be credited to him in full as long as he agrees
half years,
voluntarily in writing to abide by the same disciplinary rules imposed upon
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek
convicted prisoners.
any elective position or office,
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
government of the following:
ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty of
(1) The total amount of Five Hundred Forty[-]Two Million Seven Hundred
Reclusion Perpetua. He is hereby restored to his civil and political rights.
Ninety[-] One Thousand Pesos (P545,291,000.00), with interest and income
The forfeitures imposed by the Sandiganbayan remain in force and in full,
earned, inclusive of the amount of Two Hundred Million Pesos
including all writs and processes issued by the Sandiganbayan in pursuance hereof,
242
except for the bank account(s) he owned before his tenure as President.
242 SUPREME COURT REPORTS ANNOTATED Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this
Risos-Vidal vs. Commission on Elections pardon shall take effect.
(P200,000,000.00), deposited in the name and account of the Erap Muslim Given under my hand at the City of Manila, this 25th Day of October, in the
Youth Foundation. year of Our Lord, two thousand and seven.
(2) The amount of One Hundred Eighty[-] Gloria M. Arroyo (sgd.)
Nine Million Pesos (P189,000,000.00), inclusive of interests and income earned, By the President:
deposited in the Jose Velarde account. IGNACIO R. BUNYE (sgd.)
(3) The real property consisting of a house and lot dubbed as “Boracay Acting Executive Secretary5
Mansion” located at #100 11th Street, New Manila, Quezon City.
The cash bonds posted by accused Jose “Jinggoy” Estrada and Atty. Edward S. On October 26, 2007, at 3:35 p.m., former President Estrada “received and
Serapio are hereby ordered cancelled and released to the said accused or their duly accepted”6 the pardon by affixing his signature beside his handwritten notation
authorized representatives upon presentation of the original receipt evidencing thereon.
payment thereof and subject to the usual accounting and auditing procedures. On November 30, 2009, former President Estrada filed a Certificate of
Likewise, the hold departure orders issued against the said accused are hereby Candidacy7 for the position of President. During
recalled and declared functus oficio.4 _______________

On October 25, 2007, however, former President Gloria Macapagal-Arroyo 5 Id., at p. 265.
(former President Arroyo) extended executive clemency, by way of pardon, to 6 Id.
former President Estrada. The full text of said pardon states: 244
244 SUPREME COURT REPORTS ANNOTATED
 Risos-Vidal vs. Commission on Elections (a) Those sentenced by final judgment for an offense involving moral
that time, his candidacy earned three oppositions in the COMELEC: (1) SPA turpitude or for an offense punishable by one (1) year or more of
No. 09-024 (DC), a “Petition to Deny Due Course and Cancel Certificate of imprisonment, within two (2) years after serving sentence;
Candidacy” filed by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (b) Those removed from office as a result of an administrative case;
(DC), a petition for “Disqualification as Presidential Candidate” filed by Evilio C. (c) Those convicted by final judgment for violating the oath of allegiance to
Pormento (Pormento); and (3) SPA No. 09-104 (DC), a “Petition to Disqualify the Republic;
Estrada Ejercito, Joseph M. from Running as President due to Constitutional (d) Those with dual citizenship;
Disqualification and Creating Confusion to the Prejudice of Estrada, Mary Lou B” (e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
filed by Mary Lou Estrada. In separate Resolutions 8 dated January 20, 2010 by _______________
the COMELEC, Second Division, however, all three petitions were effectively
dismissed on the uniform grounds that: (i) the Constitutional proscription on 10 Rollo (Vol. I), p. 266.
reelection applies to a sitting president; and (ii) the pardon granted to former 11 Id., at p. 271.
President Estrada by former President Arroyo restored the former’s right to vote 246
and be voted for a public office. The subsequent motions for reconsideration thereto 246 SUPREME COURT REPORTS ANNOTATED
were denied by the COMELEC En Banc. Risos-Vidal vs. Commission on Elections
After the conduct of the May 10, 2010 synchronized elections, however, former
(f) Permanent residents in a foreign country or those who have acquired the
President Estrada only managed to garner the second highest number of votes.
right to reside abroad and continue to avail of the same right after the effectivity
Of the three petitioners above mentioned, only Pormento sought recourse to
of this Code; and
this Court and filed a petition for certiorari, which was docketed as G.R. No.
(g) The insane or feeble-minded. (Emphasis supplied)
191988, entitled “Atty. Evilio C. Pormento v. Joseph ‘ERAP’ Ejercito Estrada and
Sec. 12, Omnibus Election Code:
Commission on Elections.” But in a Resolution9 dated August 31, 2010, the Court
Section 12. Disqualifications.—Any person who has been declared by
dismissed the aforementioned petition on the ground of mootness considering that
competent authority insane or incompetent, or has been sentenced by final
former President Estrada lost his presidential bid.
judgment for subversion, insurrection, rebellion, or for any offense for which he
On October 2, 2012, former President Estrada once more ventured into the
has been sentenced to a penalty of more than eighteen months or for a crime
political arena, and filed a Certificate of
involving moral turpitude, shall be disqualified to be a candidate and to hold
_______________
any public office, unless he has been given plenary pardon or granted
amnesty. (Emphases supplied)
7 Rollo (Vol. II), p. 615.
8 Id., at pp. 509-533 and 534-572. In a Resolution dated April 1, 2013, the COMELEC, Second Division,
9 Pormento v. Estrada, G.R. No. 191988, August 31, 2010, 629 SCRA 530. dismissed the petition for disqualification, the fallo of which reads:
245 WHEREFORE, premises considered, the instant petition is
VOL. 747, JANUARY 21, 2015 245 hereby DISMISSED for utter lack of merit.12
Risos-Vidal vs. Commission on Elections
Candidacy,10 this time vying for a local elective post, that of the Mayor of the The COMELEC, Second Division, opined that “[h]aving taken judicial
City of Manila. cognizance of the consolidated resolution for SPA No. 09-028 (DC) and SPA No. 09-
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a Petition 104 (DC) and the 10 May 2010 En Banc resolution affirming it, this Commission
for Disqualification against former President Estrada before the COMELEC. The will not belabor the controversy further. More so, [Risos-Vidal] failed to present
petition was docketed as SPA No. 13-211 (DC). Risos-Vidal anchored her petition cogent proof sufficient to reverse the standing pronouncement of this Commission
on the theory that “[Former President Estrada] is Disqualified to Run for Public declaring categorically that [former President Estrada’s] right to seek public office
Office because of his Conviction for Plunder by the Sandiganbayan in Criminal has been effectively restored by the pardon vested upon him by former President
Case No. 26558 entitled ‘People of the Philippines v. Joseph Ejercito Estrada’ Gloria M. Arroyo. Since this Com-
Sentencing Him to Suffer the Penalty of Reclusion Perpetua with Perpetual _______________
Absolute Disqualification.”11 She relied on Section 40 of the Local Government
Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC), which 12 Id., at p. 43.
state respectively, that: 247
Sec. 40, Local Government Code: VOL. 747, JANUARY 21, 2015 247
SECTION 40. Disqualifications.—The following persons are disqualified
Risos-Vidal vs. Commission on Elections
from running for any elective local position:
 mission has already spoken, it will no longer engage in disquisitions of a settled
matter lest indulged in wastage of government resources.”13
The subsequent motion for reconsideration filed by Risos-Vidal was denied in
a Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing the
present petition. She presented five issues for the Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT RESPONDENT ESTRADA’S PARDON WAS NOT
CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
NOT FINDING THAT RESPONDENT ESTRADA IS DISQUALIFIED TO RUN
AS MAYOR OF MANILA UNDER SEC. 40 OF THE LOCAL GOVERNMENT
CODE OF 1991 FOR HAVING BEEN CONVICTED OF PLUNDER, AN
OFFENSE INVOLVING MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
DISMISSING THE PETITION FOR DISQUALIFICATION ON THE GROUND
THAT THE CASE INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY
RESOLVED IN THE CASES OF “PORMENTO V. ESTRADA,” SPA NO. 09-028
(DC) AND IN “RE: PETITION TO DISQUALIFY ESTRADA EJERCITO,
JOSEPH M. FROM RUNNING AS PRESIDENT, ETC.,” SPA NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO
_______________
13 Id.
248
248 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
LACK OR EXCESS OF JURISDICTION IN NOT RULING THAT
RESPONDENT ESTRADA’S PARDON NEITHER RESTORED HIS RIGHT OF
SUFFRAGE NOR REMITTED HIS PERPETUAL ABSOLUTE
DISQUALIFICATION FROM SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
NOT HAVING EXERCISED ITS POWER TO MOTU PROPRIO DISQUALIFY
RESPONDENT ESTRADA IN THE FACE OF HIS PATENT
DISQUALIFICATION TO RUN FOR PUBLIC OFFICE BECAUSE OF HIS
PERPETUAL AND ABSOLUTE DISQUALIFICATION TO SEEK PUBLIC
OFFICE AND TO VOTE RESULTING FROM HIS CRIMINAL CONVICTION
FOR PLUNDER.14
While this case was pending before the Court, or on May 13, 2013, the elections
were conducted as scheduled and former President Estrada was voted into office
with 349,770 votes cast in his favor. The next day, the local board of canvassers
proclaimed him as the duly elected Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s opponents for the
position of Mayor, moved for leave to intervene in this case. His motion was
granted by the Court in a Resolution15dated June 25, 2013. Lim subscribed to
Risos-Vidal’s theory that former President Estrada is disqualified to run for and
hold public office as the pardon granted to the latter failed to expressly remit his
perpetual disqualification. Further, given that former President Estrada is
disqualified to run for and hold public office, all the votes obtained by the latter
should be declared stray, and, being the second placer with 313,764 votes to his
name, he (Lim) should be declared
_______________
14 Id., at pp. 10-11.
15 Id., at p. 438.
249
VOL. 747, JANUARY 21, 2015 249
Risos-Vidal vs. Commission on Elections
the rightful winning candidate for the position of Mayor of the City of Manila.
The Issue
Though raising five seemingly separate issues for resolution, the petition filed
by Risos-Vidal actually presents only one essential question for resolution by the
Court, that is, whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in ruling that former President Estrada
is qualified to vote and be voted for in public office as a result of the pardon granted
to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the
pardon granted to former President Estrada was conditional as evidenced by the
latter’s express acceptance thereof. The “acceptance,” she claims, is an indication
of the conditional nature of the pardon, with the condition being embodied in the
third Whereas Clause of the pardon, i.e., “WHEREAS, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office.” She explains
that the aforementioned commitment was what impelled former President Arroyo
to pardon former President Estrada, without it, the clemency would not have been
extended. And any breach thereof, that is, when former President Estrada filed his
Certificate of Candidacy for President and Mayor of the City of Manila, he
breached the condition of the pardon; hence, “he ought to be recommitted to prison
to serve the unexpired portion of his sentence x x x and disqualifies him as a
candidate for the mayoralty [position] of Manila.”16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon which
former President Estrada must be disqualified from running for and holding public
elective office is actually the proscription found in Section 40 of the LGC, in
relation to Section 12 of the OEC. She argues that the crime of plunder is
_______________
16 Id., at pp. 12-15.
 250
250 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
both an offense punishable by imprisonment of one year or more and involving
moral turpitude; such that former President Estrada must be disqualified to run
for and hold public elective office.
Even with the pardon granted to former President Estrada, however, Risos-
Vidal insists that the same did not operate to make available to former President
Estrada the exception provided under Section 12 of the OEC, the pardon being
merely conditional and not absolute or plenary.
Moreover, Risos-Vidal puts a premium on the ostensible requirements
provided under Articles 36 and 41 of the Revised Penal Code, to wit:
ART. 36. Pardon; its effects.—A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal — their accessory
penalties.—The penalties of reclusion perpetua and reclusion temporal shall carry
with them that of civil interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute disqualification which the offender
shall suffer even though pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon. (Emphases
supplied)
She avers that in view of the foregoing provisions of law, it is not enough that
a pardon makes a general statement that such pardon carries with it the
restoration of civil and political rights. By virtue of Articles 36 and 41, a pardon
restoring civil and political rights without categorically making mention what
specific civil and political rights are restored “shall
251
VOL. 747, JANUARY 21, 2015 251
Risos-Vidal vs. Commission on Elections
not work to restore the right to hold public office, or the right of suffrage; nor
shall it remit the accessory penalties of civil interdiction and perpetual absolute
disqualification for the principal penalties of reclusion perpetua and reclusion
temporal.”17 In other words, she considers the above constraints as mandatory
requirements that shun a general or implied restoration of civil and political rights
in pardons.
Risos-Vidal cites the concurring opinions of Associate Justices Teodoro R.
Padilla and Florentino P. Feliciano in Monsanto v. Factoran, Jr.18 to endorse her
position that “[t]he restoration of the right to hold public office to one who has lost
such right by reason of conviction in a criminal case, but subsequently pardoned,
cannot be left to inference, no matter how intensely arguable, but must be stated
in express, explicit, positive and specific language.”
Applying Monsanto to former President Estrada’s case, Risos-Vidal reckons
that “such express restoration is further demanded by the existence of the
condition in the [third] [W]hereas [C]lause of the pardon x x x indubitably
indicating that the privilege to hold public office was not restored to him.”19
On the other hand, the Office of the Solicitor General (OSG) for public
respondent COMELEC, maintains that “the issue of whether or not the pardon
extended to [former President Estrada] restored his right to run for public office
had already been passed upon by public respondent COMELEC way back in
2010 via its rulings in SPA Nos. 09-024, 09-028 and 09-104, there is no cogent
reason for it to reverse its standing pronouncement and declare [former President
Estrada] disqualified to run and be voted as mayor of the City of Manila in the
absence of any new argument that would warrant its reversal. To be sure, public
respondent COMELEC correctly exercised its discretion in taking judicial cogni-
_______________
17 Id., at p. 25.
18 252 Phil. 192, 207; 170 SCRA 190, 203-204 (1989).
19 Rollo (Vol. I), p. 29.
252
252 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
zance of the aforesaid rulings which are known to it and which can be verified
from its own records, in accordance with Section 2, Rule 129 of the Rules of Court
on the courts’ discretionary power to take judicial notice of matters which are of
public knowledge, or are capable of unquestionable demonstration, or ought to be
known to them because of their judicial functions.”20
Further, the OSG contends that “[w]hile at first glance, it is apparent that
[former President Estrada’s] conviction for plunder disqualifies him from running
as mayor of Manila under Section 40 of the [LGC], the subsequent grant of pardon
to him, however, effectively restored his right to run for any public office.”21 The
restoration of his right to run for any public office is the exception to the prohibition
under Section 40 of the LGC, as provided under Section 12 of the OEC. As to the
seeming requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the
express restoration/remission of a particular right to be stated in the pardon, the
OSG asserts that “an airtight and rigid interpretation of Article 36 and Article 41
of the [RPC] x x x would be stretching too much the clear and plain meaning of the
aforesaid provisions.”22 Lastly, taking into consideration the third Whereas
Clause of the pardon granted to former President Estrada, the OSG supports the
position that it “is not an integral part of the decree of the pardon and cannot
therefore serve to restrict its effectivity.”23
Thus, the OSG concludes that the “COMELEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the assailed
Resolutions.”24
For his part, former President Estrada presents the following significant
arguments to defend his stay in office: that
_______________
20 Rollo (Vol. II), p. 498.
21 Id., at pp. 498-499.
22 Id., at p. 502.
 23 Id., at p. 503.
24 Id., at p. 505.
253
VOL. 747, JANUARY 21, 2015 253
Risos-Vidal vs. Commission on Elections
“the factual findings of public respondent COMELEC, the Constitutional body
mandated to administer and enforce all laws relative to the conduct of the
elections, [relative to the absoluteness of the pardon, the effects thereof, and the
eligibility of former President Estrada to seek public elective office] are binding
[and conclusive] on this Honorable Supreme Court”; that he “was granted an
absolute pardon and thereby restored to his full civil and political rights, including
the right to seek public elective office such as the mayoral (sic) position in the City
of Manila”; that “the majority decision in the case of Salvacion A. Monsanto v.
Fulgencio S. Factoran, Jr., which was erroneously cited by both Vidal and Lim as
authority for their respective claims, x x x reveal that there was no discussion
whatsoever in the ratio decidendi of the Monsanto case as to the alleged necessity
for an expressed restoration of the ‘right to hold public office in the pardon’ as a
legal prerequisite to remove the subject perpetual special disqualification”; that
moreover, the “principal question raised in this Monsanto case is whether or not a
public officer, who has been granted an absolute pardon by the Chief Executive, is
entitled to reinstatement to her former position without need of a new
appointment”; that his “expressed acceptance [of the pardon] is not proof that the
pardon extended to [him] is conditional and not absolute”; that this case is a mere
rehash of the cases filed against him during his candidacy for President back in
2009-2010; that Articles 36 and 41 of the Revised Penal Code “cannot abridge or
diminish the pardoning power of the President expressly granted by the
Constitution”; that the text of the pardon granted to him substantially, if not fully,
complied with the requirement posed by Article 36 of the Revised Penal Code as it
was categorically stated in the said document that he was “restored to his civil and
political rights”; that since pardon is an act of grace, it must be construed favorably
in favor of the grantee;25 and that his dis-
_______________
25 Id., at pp. 582-596.
254
254 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
qualification will result in massive disenfranchisement of the hundreds of
thousands of Manileños who voted for him.26
The Court’s Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes the right to seek
public elective office, the focal point of this controversy. The wording of the pardon
extended to former President Estrada is complete, unambiguous, and unqualified.
It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only
reasonable, objective, and constitutional interpretation of the language of the
pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal
Code.
Recall that the petition for disqualification filed by Risos-Vidal against former
President Estrada, docketed as SPA No. 13-211 (DC), was anchored on Section 40
of the LGC, in relation to Section 12 of the OEC, that is, having been convicted of
a crime punishable by imprisonment of one year or more, and involving moral
turpitude, former President Estrada must be disqualified to run for and hold public
elective office notwithstanding the fact that he is a grantee of a pardon that
includes a statement expressing “[h]e is hereby restored to his civil and political
rights.”
Risos-Vidal theorizes that former President Estrada is disqualified from
running for Mayor of Manila in the May 13, 2013 Elections, and remains
disqualified to hold any local elective post despite the presidential pardon extended
to him in 2007 by former President Arroyo for the reason that it (pardon) did not
expressly provide for the remission of the penalty of perpetual absolute
disqualification, particularly the restoration of his (former President Estrada)
right to vote and
_______________
26 Id., at p. 607.
255
VOL. 747, JANUARY 21, 2015 255
Risos-Vidal vs. Commission on Elections
be voted upon for public office. She invokes Articles 36 and 41 of the Revised
Penal Code as the foundations of her theory.
It is insisted that, since a textual examination of the pardon given to and
accepted by former President Estrada does not actually specify which political
right is restored, it could be inferred that former President Arroyo did not
deliberately intend to restore former President Estrada’s rights of suffrage and to
hold public office, or to otherwise remit the penalty of perpetual absolute
disqualification. Even if her intention was the contrary, the same cannot be upheld
based on the pardon’s text.
The pardoning power of the President cannot be limited by legislative
action.
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of
Article IX-C, provides that the President of the Philippines possesses the power to
grant pardons, along with other acts of executive clemency, to wit:
Section 19. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a
majority of all the Members of the Congress.
xxxx
 Section 5. No pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules, and regulations shall be granted by the President
without the favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions that the only
instances in which the President may not extend
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pardon remain to be in: (1) impeachment cases; (2) cases that have not yet
resulted in a final conviction; and (3) cases involving violations of election laws,
rules and regulations in which there was no favorable recommendation coming
from the COMELEC. Therefore, it can be argued that any act of Congress by way
of statute cannot operate to delimit the pardoning power of the President.
In Cristobal v. Labrador27 and Pelobello v. Palatino,28 which were decided
under the 1935 Constitution, wherein the provision granting pardoning power to
the President shared similar phraseology with what is found in the present 1987
Constitution, the Court then unequivocally declared that “subject to the
limitations imposed by the Constitution, the pardoning power cannot be restricted
or controlled by legislative action.” The Court reiterated this pronouncement
in Monsanto v. Factoran, Jr.29 thereby establishing that, under the present
Constitution, “a pardon, being a presidential prerogative, should not be
circumscribed by legislative action.” Thus, it is unmistakably the long-standing
position of this Court that the exercise of the pardoning power is discretionary in
the President and may not be interfered with by Congress or the Court, except only
when it exceeds the limits provided for by the Constitution.
This doctrine of non-diminution or non-impairment of the President’s power of
pardon by acts of Congress, specifically through legislation, was strongly adhered
to by an overwhelming majority of the framers of the 1987 Constitution when they
flatly rejected a proposal to carve out an exception from the pardoning power of
the President in the form of “offenses involving graft and corruption” that would
be enumerated and defined by Congress through the enactment of a law. The
following is the pertinent portion lifted from the Record of the Commission (Vol.
II):
_______________
27 71 Phil. 34, 38 (1940).
28 72 Phil. 441, 442 (1941).
29 Monsanto v. Factoran, Jr., supra note 18 at p. 202; p. 199.
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MR. ROMULO. I ask that Commissioner Tan be recognized to introduce an
amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of
corrupt practices laws may be limited by legislation.
I suggest that this be deleted on the grounds that, first, violations of corrupt
practices may include a very little offense like stealing P10; second, which I think
is more important, I get the impression, rightly or wrongly, that subconsciously we
are drafting a constitution on the premise that all our future Presidents will be
bad and dishonest and, consequently, their acts will be lacking in wisdom.
Therefore, this Article seems to contribute towards the creation of an anti-
President Constitution or a President with vast responsibilities but no
corresponding power except to declare martial law. Therefore, I request that
these lines be deleted.
MR. REGALADO. Madam President, may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of Commissioner
Davide because of the fact that similar to the provisions on the Commission on
Elections, the recommendation of that Commission is required before executive
clemency is granted because violations of the election laws go into the very political
life of the country.
With respect to violations of our Corrupt Practices Law, we felt that it is also
necessary to have that subjected to the same condition because violation of our
Corrupt Practices Law may be of such magnitude as to affect the very economic
system of the country. Nevertheless, as a compromise, we provided here that it will
be the Congress that will provide for the classification as to which
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convictions will still require prior recommendation; after all, the Congress
could take into account whether or not the violation of the Corrupt Practices Law
is of such magnitude as to affect the economic life of the country, if it is in the
millions or billions of dollars. But I assume the Congress in its collective wisdom
will exclude those petty crimes of corruption as not to require any further stricture
on the exercise of executive clemency because, of course, there is a whale of a
difference if we consider a lowly clerk committing malversation of government
property or funds involving one hundred pesos. But then, we also anticipate the
possibility that the corrupt practice of a public officer is of such magnitude as to
have virtually drained a substantial portion of the treasury, and then he goes
through all the judicial processes and later on, a President who may have close
connections with him or out of improvident compassion may grant clemency under
such conditions. That is why we left it to Congress to provide and make a
classification based on substantial distinctions between a minor act of corruption
or an act of substantial proportions.
SR. TAN. So, why do we not just insert the word GROSS or GRAVE before the
word “violations?”
MR. REGALADO. We feel that Congress can make a better distinction because
“GRAVE” or “GROSS” can be misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
 MR. RODRIGO. The power to grant executive clemency is essentially an
executive power, and that is precisely why it is called executive clemency. In this
sentence, which the amendment seeks to delete, an exception is being
made. Congress, which is the legislative arm, is allowed to intrude into
this prerogative of the executive. Then it limits the power of
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Congress to subtract from this prerogative of the President to grant executive
clemency by limiting the power of Congress to only corrupt practices laws. There
are many other crimes more serious than these. Under this amendment, Congress
cannot limit the power of executive clemency in cases of drug addiction and drug
pushing which are very, very serious crimes that can endanger the State; also, rape
with murder, kidnapping and treason. Aside from the fact that it is a
derogation of the power of the President to grant executive clemency, it
is also defective in that it singles out just one kind of crime. There are far
more serious crimes which are not included.
MR. REGALADO. I will just make one observation on that. We admit that the
pardoning power is an executive power. But even in the provisions on the
COMELEC, one will notice that constitutionally, it is required that there be a
favorable recommendation by the Commission on Elections for any violation of
election laws.
At any rate, Commissioner Davide, as the principal proponent of that and as a
member of the Committee, has explained in the committee meetings we had why
he sought the inclusion of this particular provision. May we call on Commissioner
Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal. We have just
approved the Article on Accountability of Public Officers. Under it, it is mandated
that a public office is a public trust, and all government officers are under
obligation to observe the utmost of responsibility, integrity, loyalty and efficiency,
to lead modest lives and to act with patriotism and justice.
In all cases, therefore, which would go into the very core of the concept that a
public office is a public trust, the violation is itself a violation not only of the
economy but the moral fabric of public officials. And that is the reason we now
want that if there is any conviction for the
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violation of the Anti-Graft and Corrupt Practices Act, which, in effect, is a
violation of the public trust character of the public office, no pardon shall be
extended to the offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the concurrence of the
convicting court, but the Committee left it entirely to the legislature to formulate
the mechanics at trying, probably, to distinguish between grave and less grave or
serious cases of violation of the Anti-Graft and Corrupt Practices Act. Perhaps this
is now the best time, since we have strengthened the Article on Accountability of
Public Officers, to accompany it with a mandate that the President’s right to grant
executive clemency for offenders or violators of laws relating to the concept of a
public office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the amendment by deletion.
Madam President, over and over again, we have been saying and arguing
before this Constitutional Commission that we are emasculating the powers
of the presidency, and this provision to me is another clear example of
that. So, I speak against this provision. Even the 1935 and the 1973 Constitutions
do not provide for this kind of provision.
I am supporting the amendment by deletion of Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like to be recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the amendment by
deletion because I am in sympathy with the stand of Commissioner Francisco “Soc”
Rodrigo. I do believe and we should remember that above all the elected or
appointed officers of our Republic, the
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leader is the President. I believe that the country will be as the President
is, and if we systematically emasculate the power of this presidency, the
time may come when he will be also handcuffed that he will no longer be
able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this particular line.
MR. ROMULO. Commissioner Colayco would like to be recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend the approval of
proposals, but now I find that the proposal of Commissioner Tan is worthy of
approval of this body.
Why are we singling out this particular offense? There are other crimes which
cast a bigger blot on the moral character of the public officials.
Finally, this body should not be the first one to limit the almost
absolute power of our Chief Executive in deciding whether to pardon, to
reprieve or to commute the sentence rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be recognized, and after
him will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The Sandiganbayan has
been called the Anti-Graft Court, so if this is allowed to stay, it would mean that
the President’s power to grant pardon or reprieve will be limited to the cases
decided by the Anti-Graft Court, when as already stated, there are many
provisions in the
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Revised Penal Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the case merits the
consideration of the exercise of executive clemency, usually under Article V of the
Revised Penal Code the judge will recommend such exercise of clemency. And so,
I am in favor of the amendment proposed by Commissioner Tan for the deletion of
this last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will again chip more
powers from the President. In case of other criminals convicted in our society, we
extend probation to them while in this case, they have already been convicted and
we offer mercy. The only way we can offer mercy to them is through this executive
clemency extended to them by the President. If we still close this avenue to
them, they would be prejudiced even worse than the murderers and the
more vicious killers in our society. I do not think they deserve this opprobrium
and punishment under the new Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready to vote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to submit this to
the floor and also because of the objection of the main proponent, Commissioner
Davide. So we feel that the Commissioners should vote on this question.
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VOTING
THE PRESIDENT. As many as are in favor of the proposed amendment of
Commissioner Tan to delete the last sentence of Section 17 appearing on lines 7, 8
and 9, please raise their hand. (Several Members raised their hand)
As many as are against, please raise their hand. (Few Members raised their
hand)
The results show 34 votes in favor and 4 votes against; the amendment
is approved.30 (Emphases supplied)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon persons convicted of violating
penal statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that the said
Articles contain specific textual commands which must be strictly followed in order
to free the beneficiary of presidential grace from the disqualifications specifically
prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects. – A pardon shall not work the restoration of the
right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
_______________
30 Records of the Constitutional Commission of 1986 (Vol. II), July 31, 1986,
pp. 524-526.
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A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal — their accessory
penalties.—The penalties of reclusion perpetua and reclusion temporal shall carry
with them that of civil interdiction for life or during the period of the sentence as
the case may be, and that of perpetual absolute disqualification which the offender
shall suffer even though pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon. (Emphases
supplied)
A rigid and inflexible reading of the above provisions of law, as proposed by
Risos-Vidal, is unwarranted, especially so if it will defeat or unduly restrict the
power of the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. Verba legis non est recedendum. From
the words of a statute there should be no departure.31 It is this Court’s firm view
that the phrase in the presidential pardon at issue which declares that former
President Estrada “is hereby restored to his civil and political rights” substantially
complies with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos-Vidal that
there was no express remission and/or restoration of the rights of suffrage and/or
to hold public office in the pardon granted to former President Estrada, as required
by Articles 36 and 41 of the Revised Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal provisions
must be followed by the President, as
_______________
31 Republic v. Camacho, G.R. No. 185604, June 13, 2013, 698 SCRA 380, 398.
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 they do not abridge or diminish the President’s power to extend clemency. He
opines that they do not reduce the coverage of the President’s pardoning power.
Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form. They only
provide a procedural prescription. They are not concerned with areas where or the
instances when the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no other governmental
instrumentality needs to intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to
include in the pardon the restoration of the rights of suffrage and to hold public
office, or the remission of the accessory penalty of perpetual absolute
disqualification, he or she should do so expressly. Articles 36 and 41 only ask that
the President state his or her intentions clearly, directly, firmly, precisely, and
unmistakably. To belabor the point, the President retains the power to make such
restoration or remission, subject to a prescription on the manner by which he or
she is to state it.32
With due respect, I disagree with the overbroad statement that Congress may
dictate as to how the President may exercise his/her power of executive clemency.
The form or manner by which the President, or Congress for that matter, should
exercise their respective Constitutional powers or prerogatives cannot be
interfered with unless it is so provided in the Constitution. This is the essence of
the principle of separation of powers deeply ingrained in our system of government
which “ordains that each of the three great branches of government has exclusive
cognizance of and is supreme in matters falling within its own constitutionally
allocated sphere.”33
_______________
32 Dissenting Opinion (Justice Marvic M.V.F. Leonen), pp. 440-441.
33 Bureau of Customs Employees Association (BOCEA) v. Teves, G.R. No.
181704, December 6, 2011, 661 SCRA 589, 604.
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More so, this fundamental principle must be observed if noncompliance with
the form imposed by one branch on a coequal and coordinate branch will result
into the diminution of an exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be
construed in a way that will give full effect to the executive clemency granted by
the President, instead of indulging in an overly strict interpretation that may serve
to impair or diminish the import of the pardon which emanated from the Office of
the President and duly signed by the Chief Executive himself/herself. The said
codal provisions must be construed to harmonize the power of Congress to define
crimes and prescribe the penalties for such crimes and the power of the President
to grant executive clemency. All that the said provisions impart is that the pardon
of the principal penalty does not carry with it the remission of the accessory
penalties unless the President expressly includes said accessory penalties in the
pardon. It still recognizes the Presidential prerogative to grant executive clemency
and, specifically, to decide to pardon the principal penalty while excluding its
accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the
effect of the pardon so decided upon by the President on the penalties imposed in
accordance with law.
A close scrutiny of the text of the pardon extended to former President Estrada
shows that both the principal penalty of reclusion perpetua and its accessory
penalties are included in the pardon. The first sentence refers to the executive
clemency extended to former President Estrada who was convicted by
the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The
latter is the principal penalty pardoned which relieved him of imprisonment. The
sentence that followed, which states that “(h)e is hereby restored to his civil and
political rights,” expressly remitted the accessory penalties that attached to the
principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41
of the Revised Penal Code, it is indubitable from the text of the pardon
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that the accessory penalties of civil interdiction and perpetual absolute
disqualification were expressly remitted together with the principal penalty
of reclusion perpetua.
In this jurisdiction, the right to seek public elective office is recognized by law
as falling under the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as the “Citizenship
Retention and Reacquisition Act of 2003,” reads as follows:
Section 5. Civil and Political Rights and Liabilities.—Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under existing
laws of the Philippines and the following conditions:
(1) Those intending to exercise their right of suffrage must meet the
requirements under Section 1, Article V of the Constitution, Republic Act No. 9189,
otherwise known as “The Overseas Absentee Voting Act of 2003” and other existing
laws;
(2) Those seeking elective public office in the Philippines shall meet
the qualifications for holding such public office as required by the Constitution and
existing laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and swear an oath of
allegiance to the Republic of the Philippines and its duly constituted authorities
prior to their assumption of office: Provided, That they re-
_______________
34 An Act Making the Citizenship of Philippine Citizens who Acquire Foreign
Citizenship Permanent, Amending for the Purpose Commonwealth Act No. 63, as
Amended, and for Other Purposes.
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 nounce their oath of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply
with the proper authority for a license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the
Philippines cannot be exercised by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of
which they are naturalized citizens; and/or
(b) are in active service as commissioned or noncommissioned officers in the
armed forces of the country which they are naturalized citizens. (Emphases
supplied)
No less than the International Covenant on Civil and Political Rights, to which
the Philippines is a signatory, acknowledges the existence of said right. Article
25(b) of the Convention states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in Article 2 and without unreasonable restrictions:
xxxx
(b) To vote and to be elected at genuine periodic elections which shall be
by universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors[.] (Emphasis supplied)
Recently, in Sobejana-Condon v. Commission on Elections,35 the Court
unequivocally referred to the right to seek public elective office as a political right,
to wit:
_______________
35 G.R. No. 198742, August 10, 2012, 678 SCRA 267, 292.
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Stated differently, it is an additional qualification for elective office specific
only to Filipino citizens who reacquire their citizenship under Section 3 of R.A. No.
9225. It is the operative act that restores their right to run for public office. The
petitioner’s failure to comply therewith in accordance with the exact tenor of the
law, rendered ineffectual the Declaration of Renunciation of Australian
Citizenship she executed on September 18, 2006. As such, she is yet to regain
her political right to seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible to run for and hold any
elective office in the Philippines. (Emphasis supplied)
Thus, from both law and jurisprudence, the right to seek public elective office
is unequivocally considered as a political right. Hence, the Court reiterates its
earlier statement that the pardon granted to former President Estrada admits no
other interpretation other than to mean that, upon acceptance of the pardon
granted to him, he regained his FULL civil and political rights — including the
right to seek elective office.
On the other hand, the theory of Risos-Vidal goes beyond the plain meaning of
said penal provisions; and prescribes a formal requirement that is not only
unnecessary but, if insisted upon, could be in derogation of the constitutional
prohibition relative to the principle that the exercise of presidential pardon cannot
be affected by legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in Monsanto v.
Factoran, Jr.36 to justify her argument that an absolute pardon must expressly
state that the right to hold public office has been restored, and that the penalty of
perpetual absolute disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned views
of Justices Teodoro R. Padilla and
_______________
36 Supra note 18.
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Florentino P. Feliciano are to be respected, they do not form part of the
controlling doctrine nor to be considered part of the law of the land. On the
contrary, a careful reading of the majority opinion in Monsanto, penned by no less
than Chief Justice Marcelo B. Fernan, reveals no statement that denotes
adherence to a stringent and overly nuanced application of Articles 36 and 41 of
the Revised Penal Code that will in effect require the President to use a statutorily
prescribed language in extending executive clemency, even if the intent of the
President can otherwise be deduced from the text or words used in the pardon.
Furthermore, as explained above, the pardon here is consistent with, and not
contrary to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the
LGC in relation to Section 12 of the OEC was removed by his acceptance of
the absolute pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for any
elective local position. Risos-Vidal argues that former President Estrada is
disqualified under item (a), to wit:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence[.] (Emphasis
supplied)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it
provides for an exception, to wit:
Section 12. Disqualifications.—x x x unless he has been given plenary
pardon or granted amnesty. (Emphasis supplied)
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 As earlier stated, Risos-Vidal maintains that former President Estrada’s
conviction for plunder disqualifies him from running for the elective local position
of Mayor of the City of Manila under Section 40(a) of the LGC. However, the
subsequent absolute pardon granted to former President Estrada effectively
restored his right to seek public elective office. This is made possible by reading
Section 40(a) of the LGC in relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the LGC is
worded in absolute terms, Section 12 of the OEC provides a legal escape from the
prohibition — a plenary pardon or amnesty. In other words, the latter provision
allows any person who has been granted plenary pardon or amnesty after
conviction by final judgment of an offense involving moral turpitude, inter alia, to
run for and hold any public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates
running for local elective positions is not unprecedented. In Jalosjos, Jr. v.
Commission on Elections,37 the Court acknowledged the aforementioned provision
as one of the legal remedies that may be availed of to disqualify a candidate in a
local election filed any day after the last day for filing of certificates of candidacy,
but not later than the date of proclamation. 38 The pertinent ruling in
the Jalosjos case is quoted as follows:
What is indisputably clear is that false material representation of Jalosjos is a
ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prisión mayor, a petition under
Section 12 of the Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice whether
_______________
37 G.R. Nos. 193237 and 193536, October 9, 2012, 683 SCRA 1.
38 Commission on Elections Resolution No. 9523, Rule 25, Section 3.
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to anchor his petition on Section 12 or Section 78 of the Omnibus
Election Code, or on Section 40 of the Local Government Code. The law
expressly provides multiple remedies and the choice of which remedy to
adopt belongs to petitioner.39 (Emphasis supplied)
The third preambular clause of the pardon did not operate to make the
pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the
pardon, i.e., “[w]hereas, Joseph Ejercito Estrada has publicly committed to no
longer seek any elective position or office,” neither makes the pardon conditional,
nor militate against the conclusion that former President Estrada’s rights to
suffrage and to seek public elective office have been restored. This is especially
true as the pardon itself does not explicitly impose a condition or limitation,
considering the unqualified use of the term “civil and political rights” as being
restored.
Jurisprudence educates that a preamble is not an essential part of an act as it
is an introductory or preparatory clause that explains the reasons for the
enactment, usually introduced by the word “whereas.”40 Whereas clauses do not
form part of a statute because, strictly speaking, they are not part of the operative
language of the statute.41 In this case, the whereas clause at issue is not an
integral part of the decree of the pardon, and therefore, does not by itself alone
operate to make the pardon conditional or to make its effectivity contingent upon
the fulfilment of the aforementioned commitment nor to limit the scope of the
pardon.
_______________
39 Jalosjos, Jr. v. Commission on Elections, supra note 37 at pp. 30-31.
40 People v. Balasa, 356 Phil. 362, 396; 295 SCRA 49, 85 (1998).
41 Llamado v. Court of Appeals, 256 Phil. 328, 339; 174 SCRA 566, 576 (1989).
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On this matter, the Court quotes with approval a relevant excerpt of
COMELEC Commissioner Maria Gracia Padaca’s separate concurring opinion in
the assailed April 1, 2013 Resolution of the COMELEC in SPA No. 13-211 (DC),
which captured the essence of the legal effect of preambular paragraphs/whereas
clauses, viz.:
The present dispute does not raise anything which the 20 January 2010
Resolution did not conclude upon. Here, Petitioner Risos-Vidal raised the same
argument with respect to the 3rd “whereas clause” or preambular paragraph of the
decree of pardon. It states that “Joseph Ejercito Estrada has publicly committed to
no longer seek any elective position or office.” On this contention, the undersigned
reiterates the ruling of the Commission that the 3rd preambular paragraph does
not have any legal or binding effect on the absolute nature of the pardon extended
by former President Arroyo to herein Respondent.
This ruling is consistent with the traditional and customary usage of
preambular paragraphs. In the case of Echegaray v. Secretary of Justice, the
Supreme Court ruled on the legal effect of preambular paragraphs or whereas
clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely an
introduction to show its intent or purposes. It cannot be the origin of rights and
obligations. Where the meaning of a statute is clear and unambiguous,
the preamble can neither expand nor restrict its operation much less
prevail over its text.
If former President Arroyo intended for the pardon to be conditional on
Respondent’s promise never to seek a public office again, the former ought to have
explicitly stated the same in the text of the pardon itself. Since former President
Arroyo did not make this an integral part of the decree of pardon, the Commission
is constrained to rule that the 3rd preambular clause cannot be
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 interpreted as a condition to the pardon extended to former President
Estrada.42 (Emphasis supplied)
Absent any contrary evidence, former President Arroyo’s silence on former
President Estrada’s decision to run for President in the May 2010 elections
against, among others, the candidate of the political party of former President
Arroyo, after the latter’s receipt and acceptance of the pardon speaks volume of
her intention to restore him to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by the
President is in issue, the Court must turn to the only evidence available to it, and
that is the pardon itself. From a detailed review of the four corners of said
document, nothing therein gives an iota of intimation that the third Whereas
Clause is actually a limitation, proviso, stipulation or condition on the grant of the
pardon, such that the breach of the mentioned commitment not to seek public office
will result in a revocation or cancellation of said pardon. To the Court, what it is
simply is a statement of fact or the prevailing situation at the time the executive
clemency was granted. It was not used as a condition to the efficacy or to delimit
the scope of the pardon.
Even if the Court were to subscribe to the view that the third Whereas
Clause was one of the reasons to grant the pardon, the pardon itself does not
provide for the attendant consequence of the breach thereof. This Court will be
hard put to discern the resultant effect of an eventual infringement. Just like it
will be hard put to determine which civil or political rights were restored if the
Court were to take the road suggested by Risos-Vidal that the statement “[h]e is
hereby restored to his civil and political rights” excludes the restoration of former
President Estrada’s rights to suffrage and to hold public office. The aforequoted
text of the executive clem-
_______________
42 Rollo (Vol. I), p. 46.
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ency granted does not provide the Court with any guide as to how and where
to draw the line between the included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for resolution is
not whether the pardon is contingent on the condition that former President
Estrada will not seek another elective public office, but it actually concerns the
coverage of the pardon — whether the pardon granted to former President Estrada
was so expansive as to have restored all his political rights, inclusive of the rights
of suffrage and to hold public office. Justice Leonen is of the view that the pardon
in question is not absolute nor plenary in scope despite the statement that former
President Estrada is “hereby restored to his civil and political rights,” that is, the
foregoing statement restored to former President Estrada all his civil and political
rights except the rights denied to him by the unremitted penalty of perpetual
absolute disqualification made up of, among others, the rights of suffrage and to
hold public office. He adds that had the President chosen to be so expansive as to
include the rights of suffrage and to hold public office, she should have been more
clear on her intentions.
However, the statement “[h]e is hereby restored to his civil and political rights,”
to the mind of the Court, is crystal clear — the pardon granted to former President
Estrada was absolute, meaning, it was not only unconditional, it was unrestricted
in scope, complete and plenary in character, as the term “political rights” adverted
to has a settled meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission of the
qualifying word “full” can be construed as excluding the restoration of the rights
of suffrage and to hold public office. There appears to be no distinction as to the
coverage of the term “full political rights” and the term “political rights” used alone
without any qualification. How to ascribe to the latter term the meaning that it is
“partial” and not
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“full” defies one’s understanding. More so, it will be extremely difficult to
identify which of the political rights are restored by the pardon, when the text of
the latter is silent on this matter. Exceptions to the grant of pardon cannot be
presumed from the absence of the qualifying word “full” when the pardon restored
the “political rights” of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the pardon granted
to former President Estrada was absolute in the absence of a clear, unequivocal
and concrete factual basis upon which to anchor or support the Presidential intent
to grant a limited pardon.
To reiterate, insofar as its coverage is concerned, the text of the pardon can
withstand close scrutiny even under the provisions of Articles 36 and 41 of the
Revised Penal Code.
The COMELEC did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-Vidal, the
COMELEC did not commit grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the assailed Resolutions.
The Court has consistently held that a petition for certiorariagainst 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.43
As settled in jurisprudence, grave abuse of discretion is the arbitrary exercise
of power due to passion, prejudice or per-
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43 Naval v. Commission on Elections, G.R. No. 207851, July 8, 2014, 729
SCRA 299.
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 Risos-Vidal vs. Commission on Elections
sonal hostility; or the whimsical, arbitrary, or capricious exercise of power that
amounts to an evasion or refusal to perform a positive duty enjoined by law or to
act at all in contemplation of law. For an act to be condemned as having been done
with grave abuse of discretion, such an abuse must be patent and gross. 44
The arguments forwarded by Risos-Vidal fail to adequately demonstrate any
factual or legal bases to prove that the assailed COMELEC Resolutions were
issued in a “whimsical, arbitrary or capricious exercise of power that amounts to
an evasion or refusal to perform a positive duty enjoined by law” or were so “patent
and gross” as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it unnecessary to
separately discuss Lim’s petition-in-intervention, which substantially presented
the same arguments as Risos-Vidal’s petition.
WHEREFORE, the petition for certiorari and petition-inintervention
are DISMISSED. The Resolution dated April 1, 2013 of the Commission on
Elections, Second Division, and the Resolution dated April 23, 2013 of the
Commission on Elections, En Banc, both in SPA No. 13-211 (DC),
are AFFIRMED.
SO ORDERED.
Velasco, Jr., Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez,
Reyes and Perlas-Bernabe, JJ., concur.
Sereno, CJ., I join the dissent of J. Leonen.
Carpio, J., I join the dissent of J. Leonen.
Brion,** J., On Official Leave.
_______________
44 Hayudini v. Commission on Elections, G.R. No. 207900, April 22, 2014, 723
SCRA 223.
* * As per CJ. Sereno, J. Brion left his vote. See his Dissenting Opinion.
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Mendoza, J., See Concurring Opinion.
Jardeleza, J., No part.
SEPARATE OPINION
BRION, J.:
I concur with the ponencia’s conclusion that the pardon granted to respondent
Joseph Ejercito Estrada (or Erap for brevity) by President Gloria Macapagal-
Arroyo (or PGMA for brevity) restored his rights to run for and hold public office
and to vote.
I likewise agree with the ponencia that Erap’s pardon complied with the
requirements under Articles 36 and 41 of the Revised Penal Code
(RPC). Specifically, Erap’s pardon contained an express restoration of his rights to
vote and to hold public office and an express remission of Erap’s perpetual absolute
disqualification brought about by his conviction for plunder. As I will discuss
below, these rights are subsumed under the phrase “civil and political rights” that
PGMA expressly restored in Erap’s pardon.
I add that aside from the points discussed by the ponencia, other material legal
justifications exist that would support the same conclusion and address the
vagueness that Risos-Vidal attributes to the textual language of Erap’s pardon.
These legal justifications include an unbiased examination of the third preambular
clause of Erap’s pardon, the official definition of “absolute pardon,” and the
pertinent rules on statutory construction that, in instances of doubt, give primacy
to the interests of the voters in election cases such as the present case. I shall
discuss all these below.
I maintain, too, that despite the ponencia’s resolution of the issue of Erap’s
pardon and its effects on his perpetual absolute disqualification, an equally
important issue lingers and remains unresolved — whether or not the
Commis-
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sion on Elections (COMELEC) gravely abused its discretion in relying
on its 2010 rulings that Erap’s pardon restored his rights to vote and to be
voted for a public office.
This issue is particularly important since the Court’s certiorari jurisdiction is
being invoked and the assailed COMELEC rulings are not being questioned
specifically on its ruling on the issue of Erap’s pardon but on the COMELEC’s
reliance on its 2010 ruling on this particular issue.
This 2010 disqualification ruling pertained to the consolidated COMELEC
Resolution in SPA No. 09-028 (DC) and SPA No. 09-104 (DC), entitled Atty. Evilio
C. Pormento v. Joseph Ejercito Estrada and In Re: Petition to Disqualify Estrada
Ejercito, Joseph M. From Running As President Due to Constitutional
Disqualification and Creating Confusion to the Prejudice of Estrada, Mary Lou
B. These cases were filed against Erap when he ran as President of the Philippines
in the 2010 elections.
For clarity, the COMELEC Second Division’s resolution dated April 1, 2013
that is being questioned in the present case states: “Today, this Commission is
confronted with a controversy that is far from novelty. Albeit raised by another
petitioner, the issue raised in the present case is glaringly similar to or intertwined
with the issues involved in the consolidated resolution for SPA No. 09-028 (DC) and
SPA No. 09-104 (DC). Therefore, it cannot be gainsaid that the question of
whether or not the pardon granted to respondent has restored his right to
run for public office, which was curtailed by virtue of his conviction for
plunder that carries with it the penalty of perpetual absolute
disqualification, has been passed upon and ruled out by this Commission
way back in 2010... Having taken judicial cognizance of the consolidated
resolution for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and the 10 May 2010
En Banc resolution affirming it, this Commission will not belabor the controversy
further. More so, petitioner failed to present cogent
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 proof sufficient to reverse the standing pronouncement of this Commission
declaring categorically that respondent’s right to seek public office has been
effectively restored by the pardon vested upon him by former President Gloria M.
Arroyo. Since this Commission has already spoken, it will no longer engage
in disquisitions of a settled matter lest indulged in wastage of government
resources.”
This COMELEC Second Division ruling was upheld by the COMELEC En
Banc in its Resolution dated April 23, 2013, which is also being assailed in the
present case.
I stress that the above 2013 COMELEC rulings that are sought to be nullified
in the present case did not explicitly rule on the issue of Erap’s pardon but merely
relied on the 2010 COMELEC rulings on this particular issue. According to Risos-
Vidal, this “reliance” constituted grave abuse of discretion.
To my mind, in the exercise of the Court’s certiorari jurisdiction, the issue of
whether or not the COMELEC gravely abused its discretion in relying on its 2010
rulings on Erap’s pardon should be squarely ruled upon on the merits, especially
because Risos-Vidal and the parties raised this particular issue in the present case.
Another crucial issue that must be resolved, in view of its jurisprudential
repercussions, is the legal propriety of Alfredo S. Lim’s (Lim) intervention in the
present case.
I discuss all these issues below.
I.
Prefatory Statement
Before this Court is an election disqualification case involving a candidate (and
subsequent winner) in the 2013 elections. By their nature, disqualification cases
are not unusual; in our political system they are given free rein because they affect
voters’ choice and governance.
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What distinguishes this case is the basis for the objection — the executive
clemency (or as interchangeably used in this Opinion, the pardon) previously
granted by the former President of the Republic Gloria Macapagal-Arroyo to her
immediate predecessor, respondent President Joseph Ejercito Estrada, whom the
former replaced under extraordinary circumstances.
At issue is not the validity of the pardon as this issue has not been raised; at
issue (to be decided in the context of the presence or absence of grave abuse
of discretion by the COMELEC) are the interpretation of the terms of the
pardon and the grantor’s intent, a matter that — in the absence of direct
evidence from grantor PGMA — the Court has to discern from the pardon’s written
terms. Intertwined with this issue is the question of whether or not the
COMELEC gravely abused its discretion in dismissing the Risos-Vidal
petition based on its 2010 ruling that Erap’s pardon restored his rights to
vote and to be voted for a public office.
Thus, we are largely left with the task of interpreting the terms of the pardon
that a politician granted to another politician, for the application of its terms to a
dispute in a political setting — the elections of 2013. This characterization of the
present case, however, should not change nor affect the Court’s mode of resolution:
the Constitution only allows us to adjudicate on the basis of the law, jurisprudence
and established legal principles.
Under this approach, the Court should also be aware that beyond the direct
parties, another party — the formally unnamed and unimpleaded electorate — has
interests that the Court should take into account. The electorate has a continuing
stake in this case because they participated and expressed their choice in the 2013
elections; in fact, not one of the entities that could have prevented them from voting
— the COMELEC and this Court — acted to prevent Erap from being voted upon.
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Their participation, to my mind, brings into the picture the need to consider
and apply deeper democratic principles: while the voters are generally the
governed, they are at the same time the sovereign who decides how and by whom
they are to be governed. This step is particularly relevant in the present case
since the electorate’s unquestioned preference was Erap, the recipient of
the disputed pardon.
I recite all these as they are the underlying considerations I shall take into
account in this Separate Opinion.
Aside from points of law, I also take into account the interests of the voters.
These interests, in my view, should not only be considered but given weight and
even primacy, particularly in a situation of doubt.
II.
The Roots of the Present Case
A. The Early Roots: The Plunder and the Pardon.
The present case traces its roots to respondent Erap’s term as President of the
Philippines which started at noon of June 30, 1998. He relinquished his post in the
middle of his term and was thereafter charged with the crime of
Plunder.1 The Sandiganbayan convicted him on September 12, 2007 and imposed
on him the penalty of reclusion perpetua and its accessory penalties.
On October 25, 2007, former President Gloria Macapagal-Arroyo (PGMA)
granted Erap executive clemency under terms that in part provides:
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
ESTRADA,
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1 Section 2, Republic Act No. 7080.
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 convicted by the Sandiganbayan of Plunder and imposed a penalty
of Reclusion Perpetua. He is hereby restored to his civil and political rights.
[Emphasis supplied]
Erap accepted the pardon without qualifications on October 26, 2007.
B. Erap’s 2010 Presidential Candidacy & Disqualification Cases.
On November 30, 2009, Erap filed his Certificate of Candidacy (CoC) for the
position of President of the Philippines.
His candidacy immediately drew a trilogy of cases that were filed on or about
the same time, with the intent of disqualifying him from running as President and
from holding office if he would win.
The first was a petition to cancel and deny due course to Estrada’s CoC [SPA
09-024 (DC)]2 filed by Elly Velez B. Lao Pamatong (Pamatong). PGMA was also
impleaded as a respondent. Pamatong alleged that Erap could not validly run for
the presidency because of the constitutional ban against reelection; he also claimed
that PGMA was also prohibited from running for any elective public office, even as
a representative of the 2nd district of Pampanga. Pamatong also argued in his
position paper that Erap’s pardon was not absolute as it was conditioned
on his promise not to run for any public office.3
_______________
2 Resolution of the COMELEC dated January 20, 2010 was attached as Annex
4 to Annex H of the Petitioner’s Memorandum.
3 See page 8 of the COMELEC, Second Division Resolution dated January 20,
2010 in SPA No. 09-024(DC) entitled Rev. Elly Velez B. Lao Pamatong, Esq v.
Joseph Ejercito Estrada and Gloria Macapagal-Arroyo. This Resolution was
attached as Exhibit “4” to Annex “E” of the Memorandum that Petitioner Risos-
Vidal submitted to the Court.
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The second formal objection to Erap’s presidential candidacy came
from Evilio C. Pormento (Pormento) who filed his “Urgent Petition for
Disqualification as Presidential Candidate” on December 5, 2009 (docketed
as SPA 09-028). Pormento alleged that Erap was not eligible for reelection for the
position of President pursuant to Article VII, Section 4 of the Constitution. In his
answer to Pormento, Erap re-pleaded his defenses in the Pamatong case and added
that the grant of executive clemency in his favor removed all legal impediments
that might bar his candidacy for the presidency.4
The third objection was filed by Mary Lou Estrada, a presidential candidate,
who filed a petition for disqualification and cancellation of Erap’s CoC based on
the grounds that he was not eligible for reelection and that Erap’s candidacy would
confuse the electorate, to her prejudice. This case was docketed as SPA 09-104.
The COMELEC, Second Division, called the trilogy to a joint hearing but opted
to issue separate but simultaneous decisions because the Pamatong case, SPA 09-
024, involved PGMA as a second respondent, while the two other cases [docketed
as SPA Nos. 09-028 (DC) and 09-104 (DC)] only involved Erap as the respondent.
Significantly, while three separate decisions were issued, they all commonly
discussed, practically using the same wording, the pardon extended to Erap
and concluded that the pardon restored Erap’s “right to vote and to be voted for
a public office.”5
_______________
4 COMELEC, Second Division Resolution on SPA No. 09-028 (DC), attached
as Annex “O” to Memorandum of Intervenor Lim.
5 A. At page 22 of the COMELEC Resolution dated January 20, 2010 in the
Pamatong petition [SPA No. 09-024 (DC)], the COMELEC Second Division ruled
that:
“Furthermore, there is absolutely no indication that the executive clemency
exercised by President Arroyo to pardon Former President Estrada was a mere
conditional pardon. It clearly stated that the former president is “restored to his
civil and political rights” and there is nothing in the same which limits the
restoration. The
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B.1. The Disqualification Rulings in the 2010 Election Cases.
Thus, in clear and explicit terms, the Resolutions in all three cases uniformly
ruled that Erap was not disqualified from running and from holding office, not only
because he was not running for reelection, but likewise because of the pardon that
had been extended to him.
_______________
only thing stated therein that may have some bearing on the supposed
conditions is that statement in the whereas clause that contained the following:
Whereas, Joseph Ejercito Estrada has publicly committed to no longer seek any
elective position or office, but that is not a condition but is merely part of a
preliminary statement. It cannot therefore serve to restrict the operation of or
prevail over the explicit statement in the executive clemency which restored all of
Estrada’s civil and political rights, including the “right to vote and to be voted for
a public office,” including the position of the Presidency.
This executive clemency granted to the former President being absolute and
unconditional and having been accepted by him, the same can no longer be
revoked.”
B. At pages 23-24 of the of the COMELEC Resolution dated January 20, 2010
in the Pormento and Mary Lou petitions [SPA Nos. 09-028 (DC) and 09-104 (DC)],
the COMELEC Second Division ruled that:
Furthermore, there is absolutely no indication that the executive clemency
exercised by President Arroyo to pardon Former President Estrada was a mere
conditional pardon. It clearly stated that the former president is “restored to his
civil and political rights” and there is nothing in the same which limits the
restoration. The only thing stated therein that may have some bearing on the
supposed conditions is that statement in the whereas clause thereof that contained
the following: “Whereas, Joseph Ejercito Estrada has publicly committed to no
longer seek any elective position or office,” but that is not really a condition but is
merely part of a preliminary statement, referring to what respondent Estrada had
said publicly. There is nothing stated in the dispositive part that it was conditioned
upon said respondent’s purported public commitment. His public statement
cannot, therefore, restrict the operation of, or pre-
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The COMELEC specifically ruled that the statement in the pardon stating that
— “Whereas, Joseph Estrada has publicly committed to no longer seek any elective
position or office” — was not really a condition but was merely a part of the
pardon’s preliminary statement. The dispositive portion of the pardon did not state
that it was conditioned on this purported public commitment. Additionally, his
public statement cannot serve to restrict the operation of, or prevail over, the
explicit statement in the pardon that restored all his civil and political rights,
including the right to vote and to be voted for a public office.6
Petitioner Mary Lou Estrada pointedly questioned the COMELEC rulings in
her motion for reconsideration, including the terms of the pardon extended to
Erap.7 Before the 2010 elections took place, the COMELEC En Banc adopted the
Second Division ruling and denied all the motions. 8 Only Pormento responded
to the denial by filing a petition for certiorari before the Court, docketed
as G.R. No. 191988.
In resolving Pormento’s petition, the Court solely touched on the issue of
“reelection” and held that there was no longer
_______________
vail over, the explicit statement in the executive clemency which restored all
of Estrada’s civil and political rights, including the “right to vote and to be voted
for a public office,” including to the position of the Presidency. This executive
clemency granted to the former President being absolute and unconditional and
having been accepted by him, the same can no longer be revoked or be made subject
to a condition.
6 Id.
7 The COMELEC En Banc denied the motions for reconsideration of
Pormento and Mary Lou Estrada in its Resolutions dated May 4, 2010 and April
27, 2010, respectively. These resolutions were attached as Exhibits “5” and “6,”
respectively, to Annex “E” of Petitioner Risos-Vidal’s Memorandum that she
submitted to the Court.
8 See Exhibits “5” and “6” attached to Annex “E” of Petitioner Risos-Vidal’s
Memorandum that she submitted to the Court.
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any justiciable issue to be resolved because Erap had already lost the 2010
elections. Thus, the Court dismissed the whole petition, observing that Erap fully
participated in the elections since Pormento did not pray for the issuance of a
TRO.
Pamatong and Mary Lou Estrada did not pursue further remedies after the
COMELEC En Banc denied their respective motions for reconsideration. This
Court, on the other hand, dismissed Pormento’s Rules 64/65 petition assailing the
COMELEC ruling. Thus, the COMELEC ruling in the three cases
became final, executory, non-appealable and non-assailable.9
As I will discuss below, these final COMELEC decisions on Erap’s pardon and
his resulting qualification to run for elective public office preclude this same issue
of pardon from again being questioned because res judicata has already set in.
Significantly, when voting took place on May 10, 2010, no prohibition was in
place to prevent the voters from voting for Erap as a candidate. Neither the
COMELEC (because it had dismissed the petitions against Erap’s candidacy) nor
this Court (because it did not issue any temporary restraining order or
injunction) prevented Erap from being voted upon. In a field of ten
(10) candidates, Erap garnered 9,487,837 votes and landed in second place, as
against the winner’s 15,208,678 votes.10
_______________
9 They are final and non-appealable pursuant to Section 3, Rule 37 of the
COMELEC Rules of Procedure; they are no longer assailable because the period to
question them before the Supreme Court had lapsed pursuant to Section A(7),
Article IX, 1987 Constitution
10 Pursuant to the Congress’ Joint Public Session, Resolution of Both Houses
No. 01 entitled, Resolution of Both Houses Approving the Report of the Joint
Committee, Declaring the Results of the National Elections Held on May 10, 2010,
For the Offices of Presi-
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Risos-Vidal vs. Commission on Elections
III.
The Risos-Vidal Petition
On October 2, 2012, Erap filed his Certificate of Candidacy (CoC) for the
position of City Mayor of Manila. As had happened in the past, this Erap move did
not go unchallenged.
A. The COMELEC Petition.
Petitioner Risos-Vidal filed on January 24, 2013 — or before the 2013 elections
— a petition for disqualification against private respondent Erap based on Section
4011 of the Local Government Code (R.A. No. 7160, the LGC) in relation with
Section 1212 of the Omnibus Election Code (B.P. No. 881, the OEC). Both the LGC
and the OEC commonly disqualify
_______________
 dent and Vice President, and Proclaiming the Duly Elected President and Vice
President of the Republic of the Philippines.
11 Section 40. Disqualifications.—The following persons
are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of imprisonment,
within two (2) years after serving sentence. [Emphasis supplied]
12 Sec. 12. Disqualifications.—Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by final
judgmentfor subversion, insurrection, rebellion or for any offense for which he
has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold
any office, unless he has been given plenary pardon or granted amnesty.
This disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five years
from his service of sentence, unless within the same period he again becomes
disqualified. [Emphasis supplied]
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any person convicted of an offense involving moral turpitude from running for
office.
She sought to disqualify Erap from running for mayor for having been
convicted of a crime involving moral turpitude (plunder), an offense that carries
the penalty of reclusion perpetua and the accessory penalties of interdiction and
perpetual absolute disqualification. She alleged that Erap’s subsequent pardon
was conditional and did not cover the accessory penalty of perpetual absolute
disqualification.
Risos-Vidal and Erap fully argued the pardon aspect of the case before the
COMELEC and before the Court. In Risos-Vidal’s Memorandum that she
submitted to the Court, she attached as Annex “E” the COMELEC Memorandum
of Erap with the attached Pamatong,13 Pormento14 and Mary Lou
Estrada15 COMELEC resolutions.
B. The COMELEC Ruling.
On April 1, 2013 or 42 days before the 2013 elections, the COMELEC Second
Division dismissed the petition for disqualification, citing its 2010 rulings in the
cases filed against Erap after he filed his CoC for the position of President of the
Philippines in 2010. According to the COMELEC, it had already ruled in these
disqualification cases and had then held that the pardon granted to Erap was
absolute and unconditional; hence, his previous conviction no longer barred him
from running for an elective public office.
The COMELEC En Banc denied Risos-Vidal’s motion
reconsideration,16 prompting her to file the present petition
_______________
13 See Exhibit “4” attached to Annex “E” of Petitioner Risos-Vidal’s
Memorandum that she submitted to the Court.
14 See Exhibit “5” attached to Annex “E” of Petitioner Risos-Vidal’s
Memorandum that she submitted to the Court.
15 See Exhibit “6” attached to Annex “E” of Petitioner Risos-Vidal’s
Memorandum that she submitted to the Court.
16 April 23, 2013.
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for certiorari, where she alleged that the COMELEC gravely abused its
discretion in issuing the assailed COMELEC resolutions.17
While the petition was pending before the Court, the 2013 elections took
place. Neither the COMELEC nor this Court barred Erap from running and
being voted upon. He obtained 349,770 votes and was proclaimed as the “duly
elected” Mayor on May 14, 2013. His opponent, Lim, obtained 313,764 votes and
conceded that Erap had won.18
C. The Lim Intervention.
On June 7, 2013 — i.e., after the 2013 elections; Erap’s proclamation as elected
Mayor; his concession of the elections to Erap; and while the present petition was
pending before the Court — Lim (Erap’s opponent in the mayoralty race) filed a
motion for leave to intervene, which motion the Court granted in a Resolution
dated June 25, 2013.
IV.
The Issues for Resolution
The main issue in this case is whether the COMELEC committed GRAVE
ABUSE OF DISCRETION in ruling that Erap had been extended a
PARDON that qualified him to run for City Mayor of Manila in the 2013
elections.
Interrelated with this issue is the question of whether or not the
COMELEC committed GRAVE ABUSE OF DISCRETION in dismissing the
Risos-Vidal petition based on the 2010 COMELEC rulings that
_______________
17 Filed on April 30, 2013.
18 See the COMELEC Provincial Canvass Report attached to the Petitioner’s
Memorandum as Annex “L.”
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Erap’s pardon restored his rights to vote and to be voted for a public
office.
 Closely related to these main issues is the question of whether — based
on the voting circumstances that surrounded the 2010 and 2013 elections
— equitable reasons exist that should now prevent the Court from
declaring Erap ineligible for the position to which he had been elected by
the majority of Manila voters.
Central to these issues is the determination of the nature and effects of the
pardon granted to Erap, as well as the effects of all the developments in the case
on the electorate — the innocent third party whose exercise of the democratic
right to vote underlies the present dispute.
A tangential side issue that should be settled for its jurisprudential value is
the legal propriety of the intervention of Alfredo S. Lim only at the Supreme Court
level.
Other subsidiary issues must necessarily be resolved to get at the main and
side issues. They shall all be topically identified in the course of resolving the
leading issues.
V.
My Separate Opinion
A. Preliminary Considerations.
A.1. The Standard of Review in Considering the present petition.
In the review of the COMELEC’s ruling on the Risos-Vidal petition, an issue
that we must settle at the outset is the nature and extent of the review we shall
undertake. This determination is important so that everyone — both the direct
parties as well as the voting public — will know and understand how this case was
decided and that the Court had not engaged in any kind of “overreach.”
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Section 7, Article IX of the Constitution provides that “unless otherwise
provided by this Constitution or by law, any decision, order or ruling of each
Commission may be brought to the Supreme Court on certiorari by the aggrieved
party.” A similar provision was found in the 1973 Constitution.
In Aratuc v. COMELEC (a 1979 case)19 the Court clarified that unlike in the
1935 Constitution where the Court had the power of review over the decisions,
orders and rulings of the COMELEC,20the 1973 Constitution changed the
nature of this remedy from appellate review to certiorari.
Aratuc explained that under the then existing Constitution and statutory
provisions, the certiorari jurisdiction of the Court over orders, and decisions of the
COMELEC was not as broad as it used to be and should be confined to instances
of grave abuse of discretion amounting to patent and substantial denial of due
process.21
The Court further observed that these constitutional, statutory and
jurisprudential changes show the definite intent to enhance and
invigorate the role of the COMELEC as the independent constitutional
body tasked to safeguard free, peaceful and honest elections. In other words,
the limited reach and scope of certiorari, compared with appellate review, direct
that utmost respect be given the COMELEC as the constitutional body given the
charge of elections.22
A.1(a) Certiorari v. Appeal.
An appellate review includes the full consideration of the merits, demerits
and errors of judgment in the decision under review, while certiorari deals
exclusively with the presence
_______________
19 177 Phil. 205, 222; 88 SCRA 251, 269 (1979)
20 Sec. 2, first paragraph, Article X.
21 Aratuc v. COMELEC, supra at p. 223; p. 272.
22 Id.
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or absence of grave abuse of discretion amounting to lack of jurisdiction
that rendered the assailed decision or ruling a nullity; such kind of abuse is way
beyond mere error in the assailed judgment or ruling, and is not necessarily
present in a valid but erroneous decision.
A.1(b) Grave Abuse of Discretion.
The grave abuse of discretion that justifies the grant of certiorari involves
a defect of jurisdiction brought about, among others, by an indifferent disregard
for the law, arbitrariness and caprice, an omission to weigh pertinent
considerations, or a decision arrived at without rational deliberation 23 — due
process issues that rendered the decision or ruling void.
Our 1987 Constitution maintained the same remedy of certiorari in the review
of COMELEC decisions elevated to the Supreme Court as the Constitutional
Convention deliberations show.24 This constitutional provision has since then been
reflected under Rules 64 and 65 of the Rules of Court.
_______________
23 Id.
24 Fr. Bernas: The decision I cited was precisely an interpretation of the clause
in the provisions on the COMELEC which says: “Any decision, order, or ruling of
the Commission may be brought to the Supreme Court on certiorari…” In
interpreting that provision in the case of Aratuc, the Supreme Court said:
We hold therefore that under the existing constitutional and statutory
provisions, the certiorari jurisdiction of the Court over orders, rulings and decision
of the COMELEC is not as broad as it used to be and should be confined to
instances of grave abuse of discretion amounting to patent and substantial denial
of due process. Does that express the sense of the Committee?
Mr. Regalado. That was the view of Justice Barredo in the Aratuc case while
he was the ponente x x x In subsequent decisions wherein Chief Justice Teehankee
concurred, he believed that the mode of review on certiorari under Rule XLV
[should be LXV] is to be under-
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Aside from the jurisdictional element involved, another basic and important
element to fully understand the remedy of certiorari, is that it applies to rulings
that are not, or are no longer, appealable. Thus, certiorari is not an appeal
that opens up the whole case for review; it is limited to a consideration of a specific
aspect of the case, to determine if grave abuse of discretion had intervened.
For example, it is a remedy that may be taken against an interlocutory order
(or one that does not resolve the main disputed issue in the case and is thus not a
final order on the merits of the case) that was issued with grave abuse of discretion.
This is the remedy to address a denial of a bill of particulars 25 or of the right to
bail26 by the trial court in a criminal
_______________
stood as including acts of the Constitutional Commissions, without jurisdiction
or acting in excess of jurisdiction.
Fr. Bernas. This seems to be the same thing. If it is without jurisdiction or in
excess of jurisdiction, there is grave abuse of discretion.
Mr. Regalado. No, Commissioner. Grave abuse of discretion may be equivalent
to lack of jurisdiction, if it was done in a capricious or whimsical manner. But
excess of jurisdiction is a little different, meaning, that the Supreme Court had
jurisdiction but it overstepped the bounds of jurisdiction in the exercise thereof.
That is what Justice Teehankee also pointed out. Grave abuse of discretion, I
agree, results in lack of jurisdiction, but excess of jurisdiction presupposes that the
Court, while with jurisdiction just overstepped the permissible bounds in the
exercise thereof.
Fr. Bernas: So, for purposes of the record now, what is the intention of the
Committee? What are the grounds for certiorari?
Mr. Regalado. The Committee which refers specifically to technical term of
review by certiorari would be relying on the provisions of Rule XLV [Should be
LXV] of the Rules of Court that laid down the three grounds. (The Intent of the
1986 Constitution Writers, 1995 ed., Fr. Joaquin Bernas, SJ)
25 Virata v. Sandiganbayan, G.R. No. 106527, April 6, 1993, 221 SCRA 52,
60-61.
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case. It is also the sole remedy available against a COMELEC ruling on the
merits of a case as this ruling on the main disputed issue is considered by the
Constitution and by the law to be final and non-appealable.27
A.1(c) Application of the Stardards of Review to the COMELEC
Ruling.
To assail a COMELEC ruling, the assailing party must show that the final
and inappealable ruling is void, not merely erroneous, because the
COMELEC acted with grave abuse of discretion in considering the case or in
issuing its ruling.
Under our established jurisprudence, this grave abuse of discretion has been
almost uniformly defined as a “capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction.” The abuse of discretion, to be grave, must be so
patent and gross as to amount to an “evasion of a positive duty or to a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law,
as where the power is exercised in an arbitrary and despotic manner by reason of
passion and hostility.”
The present Erap case is an election case brought from a ruling of the
COMELEC En Banc to this Court as an independent action for
certiorari under Rule 64 in relation with Rule 65 of the Rules of Court, and must
perforce be judged under the above discussed standards.
The question before us is not simply whether the COMELEC erred in
appreciating the nature of the pardon granted to Erap and in relying on its 2010
rulings on this matter; the question to ask is, even if the COMELEC did err,
_______________
26 Caballes v. Court of Appeals, 492 Phil. 410, 417-418; 452 SCRA 312, 328
(2005).
27 Section A(7), Article IX, 1987 Constitution; Section 3, Rule 37 of the
COMELEC Rules of Procedure.
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whether its error is to the point of grave abuse of discretion.
1. The Interests of the Electorate.
As I narrated above, the Erap story did not end with his crime and conviction.
While he had undeniably committed a crime involving betrayal of the public trust,
he was subsequently and lawfully pardoned for his misdeed. While jurisprudence
may be divided on the effects of pardon (i.e., whether it erases both the guilt and
the penalty), the various cases giving rise to this jurisprudence do not appear to
have considered at all the election setting that presently confronts us.
Where the crime from which the guilt resulted is not unknown and was in fact
a very widely publicized event in the country when it happened, the subsequent
electoral judgment of the people on the recipient of the executive clemency cannot
and should not be lightly disregarded. People participation is the essence of
democracy and we should be keenly aware of the people’s voice and heed it to the
extent that the law does not bar this course of action. In case of doubt,
the sentiment that the people expressed should assume primacy.
When the recipient of pardon is likewise the people’s choice in an election held
after the pardon, it is well to remember that pardon is an act of clemency and grace
exercised to mitigate the harshness of the application of the law and should be
understood in this spirit, i.e., in favor of the grantee whom the people themselves
have adjudged and found acceptable.
It ought not be forgotten that in two high profile elections, the State had
allowed Erap to offer himself as a candidate without any legal bar and without
notice to the voting public that a vote for him could be rendered useless and stray.
In the 2010 presidential elections, he had offered himself as a presidential
candidate and his candidacy was objected to, among others, because of the nature
of the pardon extended to
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him. The COMELEC resolved the objection and he was voted upon without any
formal notice of any legal bar to his candidacy. It is now a matter of record and
history that he landed 2nd in these elections, in a field of ten (10) candidates, with
9,487,837 voting for him as against the winner who garnered 15,208,678 votes. To
Erap’s credit, he gracefully accepted his electoral defeat.28
In 2013, he again ran for office. He won this time but a case was again filed
against him with the COMELEC and the case eventually reached this Court. This
is the present case.
The COMELEC cleared Erap by election day of 2013, dismissing the
disqualification case against him and ruling that the pardon granted to him
restored his right to vote and to be voted upon. Notably, even this Court did not
prevent Erap’s candidacy and did not prevent him from being voted upon after his
disqualification case was brought to this Court. Thus, the people went to the
polls and voted Erap into office with no expectation that their votes could
be rendered stray.
Under these circumstances, we cannot and should not rashly rule on the basis
of black letter law and jurisprudence that address only the fact of pardon; we
cannot forget the election setting and simply disregard the interests of the voters
in our ruling. While the people were not impleaded as direct parties to the case,
we cannot gloss over their interests as they are the sovereign who cannot be
disregarded in a democratic state like ours.
2. The Intervention of former Mayor Alfredo S. Lim.
I have included the intervention of former Mayor Alfredo S. Lim as a matter
for Preliminary Consideration as it is an immaterial consideration under my
position that the COMELEC did not gravely abuse its discretion in its assailed
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28 Supra note 10.
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ruling. Despite its immateriality, I nevertheless discuss it in light of the
Court’s prior action approving his intervention, which court approval was an
interlocutory order that is subject to the Court’s final ruling on the merits of the
case.
I have to discuss the intervention, too, for jurisprudential reasons: this
intervention, apparently granted without in-depth consideration, may sow
confusion into the jurisprudence that those who came before us in this Court took
pains to put in order.
2.a. Intervention in General.
Intervention is a remedy whereby a third party, not originally impleaded in
the proceedings, becomes a litigant in the case so that the intervenor could protect
or preserve a right or interest that may be affected by the proceedings.
The intervenor’s interest must be actual, substantial, material, direct and
immediate, and not simply contingent or expectant. It must be of such direct
and immediate character that the intervenor will either gain or lose by the direct
legal operation and effect of the judgment.
As discussed below, there are also other equally important limitations and
restrictions to consider before an intervention can be allowed, among them, the
need for the intervention to be timely filed.
2.b. The context of Lim’s intervention.
The timing and incidents of Lim’s intervention are jurisprudentially
interesting and, by themselves, speak loudly against his cause.
The records of this case show that Lim never filed any petition to cancel
Erap’s CoC nor to disqualify him. Neither did he intervene in the COMELEC
proceedings in the Risos-Vidal petition. Instead, Lim allowed Erap to continue as
his rival
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candidate in the 2013 elections for Mayor of the City of Manila.
It will be recalled that Risos-Vidal filed her petition for certiorari before this
Court on April 30, 2013 (or before the May 13, 2013 elections). Lim likewise did
not intervene at that point. Erap won in the elections and in fact, on May 14, 2013,
Lim publicly announced that he respected and acknowledged the COMELEC’s
proclamation of Erap and wished him all the best.29
On June 7, 2013 (25 days after the May 13, 2013 elections, or 24 days after
Erap’s proclamation, and 24 days likewise after Lim conceded victory to Erap), Lim
then filed with this Court his motion for leave to intervene with the attached
petition-in-intervention. His arguments were: 1) Erap was disqualified to run for
public office as his pardon did not restore his rights to vote and to hold public
office;30 and 2) his intervention was still timely.
Lim also argued that it would have been premature to intervene in the Risos-
Vidal petition before the proclamation because had Erap’s votes not then been
counted, they would have been considered stray and intervention would have been
unnecessary. Lim further argued that, in view of Erap’s disqualification, he should
be declared as the winner, having obtained the second highest number of votes.
Lim also additionally alleged that he never conceded defeat, and the COMELEC
committed grave abuse of discretion when it dismissed Risos-Vidal’s petition for
disqualification based on its 2010 rulings.31
_______________
29 See page 45 of Memorandum for Intervenor.
30 Id., at pp. 22-23.
31 Id., at pp. 46-55.
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2.c. Lim’s petition-in-intervention should be dismissed.
Since Lim intervened only in the present petition for certiorari before this
Court, the Rules of Court on intervention directly applies. Section 2, Rule 19 of the
Rules of Court provides that the time to intervene is at any time before the
rendition of judgment by the trial court.
The Court explained in Ongco v. Dalisay32 that “the period within which a
person may intervene is restricted and after the lapse of the period set in Section 2,
Rule 19, intervention will no longer be warranted. This is because, basically,
intervention is not an independent action but is ancillary and supplemental to an
existing litigation.”
In Ongco,33 the Court further traced the developments of the present rule on
the period to file a motion for intervention. The former rule was that intervention
may be allowed “before or during a trial.” Thus, there were Court rulings that a
motion for leave to intervene may be filed “before or during a trial,” even on the
day when the case is submitted for decision as long as it will not unduly delay the
disposition of the case.34 There were also rulings where the Court interpreted
“trial” in the restricted sense such that the Court upheld the denial of the motion
for intervention when it was filed after the case had been submitted for
decision.35 In Lichauco v. CA,36 intervention was allowed at any time after the
rendition of the final judgment.37 In one exceptional case,38 the Court
_______________
32 677 SCRA 232, 241 (2012).
33 Id., at pp. 240-241.
34 Id., at p. 241, citing Falcasantos v. Falcasantos, No. L-4627, May 13, 1952.
35 Id., citing Vigan Electric Light Co., Inc. v. Arciaga, Nos. L-29207 and L-
29222, July 31, 1974, 58 SCRA 211.
36 Id., citing L-23842, March 13, 1975, 63 SCRA 723.
37 Id.
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allowed the intervention in a case pending before it on appeal in order to avoid
injustice.
To cure these inconsistent rulings, the Court clarified in Ongco that [t]he
uncertainty in these rulings has been eliminated by the present Section 2, Rule 19,
which permits the filing of the motion to intervene at any time before the rendition
of the judgment, in line with the ruling in Lichauco.39
The justification for this amendment is that before judgment is
rendered, the court, for good cause shown, may still allow the introduction
of additional evidence as this is still within a liberal interpretation of the
period for trial. Also, since no judgment has yet been rendered, the matter
subject of the intervention may still be readily resolved and integrated in
the judgment disposing of all claims in the case, without requiring an
overall reassessment of these claims as would be the case if the judgment
had already been rendered.40
The Court held in Ongco that under the present rules, [t]he period within
which a person may intervene is also restricted… after the lapse of this period, it
will not be warranted anymore. This is because, basically, intervention is not an
independent action but is ancillary and supplemental to an existing litigation.41
The Court further held in Ongco that “there is wisdom in strictly enforcing the
period set by Rule 19 of the Rules of Court for the filing of a motion for intervention.
Otherwise, undue delay would result from many belated filings of motions for
intervention after judgment has already been rendered, because a reassessment of
claims would have to be done. Thus, those who slept on their lawfully granted
privi-
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38 Id., citing Director of Lands v. Court of Appeals, No. L-45168, September
25, 1979, 93 SCRA 238.
39 Id.
40 Id.
41 Id., at pp. 241-243.
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lege to intervene will be rewarded, while the original parties will be unduly
prejudiced.”42
While the Court may have liberally relaxed the rule on intervention in some
cases, a liberal approach cannot be made in the present case because of
jurisdictional restrictions, further explained below.
Other than these reasons, I add that under COMELEC rules, only “a person
allowed to initiate an action or proceeding may, before or during the trial of an
action or proceeding, be permitted by the Commission, in its discretion, to intervene
in such action or proceeding, if he has legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against both, or when he is so
situated as to be adversely affected by such action or proceeding.” Thus, Lim could
have intervened at the COMELEC level before or during the hearing of the petition
for disqualification that Risos-Vidal filed.
The records show that Lim intervened only after Risos-Vidal filed the present
petition for certiorari with the Court and not during the disqualification
proceedings before the COMELEC. He was therefore never a party in the
disqualification proceeding before the COMELEC and, consequently, has not
presented any evidence to support his claims; nor was Erap ever given the chance
to controvert Lim’s claims before the COMELEC, the tribunal vested with the
jurisdiction to settle the issues that he raised in his petition-in-
intervention before the Court.
From the perspective of Rule 65 of the Rules of Court, I add that because
Lim was not a party before the COMELEC, he never had the chance to file a motion
for reconsideration before that body — a constitutional and procedural
requirement before a petition for certiorari may be
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42 Ongco v. Dalisay, supra note 32 at p. 242.
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filed before the Court.43 As a nonparty to the disqualification case before the
COMELEC, he cannot be deemed an “aggrieved party” who has earned the rights
under Rule 65 to file a certiorari petition or to intervene to assail the COMELEC’s
decision. The Court, in particular, has no jurisdiction to grant the prayer
of Lim to be declared as the winner, especially since the COMELEC never
had the chance to rule on this in its assailed decision.
The original jurisdiction to decide election disputes lies with the COMELEC,
not with this Court.44 Thus, any ruling from us in the first instance on who should
sit as mayor (in the event we grant the Risos-Vidal petition) will constitute grave
abuse of discretion. Unfortunately, no recourse is available from our ruling.
This character of finality renders it very important for us to settle the Lim
intervention correctly.
At this juncture, I refer back to Ongco, where the Court held that the filing of
a motion for intervention with the CA after the MTC had rendered judgment is an
inexcusable delay and is a sufficient ground for denying a motion for
intervention.45
Note that in Ongco, the Court still upheld the CA’s denial of the motion for
intervention and strictly applied the period to intervene even if what was involved
was an appeal or a continuation of the proceedings of the trial court.
In contrast, the present case is not a continuation of the COMELEC
proceedings and decision, but an original special civil action of certiorari. Thus,
with more reason should the rules on intervention be more stringently applied,
given too that the Court has no original jurisdiction over the issues
_______________
43 See Esteves v. Sarmiento, 591 Phil. 620, 625; 570 SCRA 656, 662 (2008).
44 Section 12, Article I and Section 68, Article IX of the OEC; Section 6, RA
6646.
45 Ongco v. Dalisay, supra note 32 at p. 240.
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involved in the requested intervention, in particular, over the issue of who
should sit as Mayor of the City of Manila if Risos-Vidal petition would be granted.
As my last two points on the requested intervention, I would deny the
intervention even if it technically satisfies the rules by reason of the estoppel that
set in when Lim publicly announced that he was acknowledging and respecting
Erap’s proclamation. This public announcement is an admission against his
interest that, in a proper case, would be admissible against Lim.
I also disregard outright, for lack of relevance, the cases that Lim cited
regarding intervention. In his cited Maquiling v. COMELEC46and Aratea v.
COMELEC47 cases, the intervenors filed their intervention before the COMELEC
and not before the Court. Thus, any reliance on these cases would be misplaced.
In sum, I maintain that Lim should be barred from participating in the present
case as intervenor. Otherwise, the Court will effectively throw out of the window
the jurisprudence that has developed on intervention, while disregarding as well
the sound and applicable COMELEC rules on the same topic.
VI.
The Merits of the Petition
A.
On the Issue of Pardon and the COMELEC’s Grave Abuse of
Discretion.
The COMELEC did not err at all and thus could not have committed
grave abuse of discretion in its ruling that the terms of Erap’s pardon
restored to him the
_______________
46 G.R. No. 195649, April 16, 2013, 696 SCRA 420.
47 G.R. No. 195229, October 9, 2012, 683 SCRA 1.
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right to vote and to be voted upon. Too, the COMELEC did not gravely
abuse its discretion in dismissing the petition of Risos-Vidal and in citing its 2010
final and executory rulings that Erap’s pardon restored his right to vote and be
voted upon.
A.1. Pardoning Power and the Pardon Extended.
Section 19, Article VII of the Constitution provides for the pardoning power of
the President. It states that except in cases of impeachment, or as otherwise
provided in this Constitution, the President may grant reprieves, commutations,
and pardons, and remit fines and forfeitures, after conviction by final judgment.
Pardon is defined as an act of grace, proceeding from the power entrusted with
the execution of the laws, which exempts the individual, on whom it is bestowed,
from the punishment that the law inflicts for a crime he has committed.48
The power to pardon, when exercised by the Chief Executive in favor of persons
convicted of public crimes, is plenary, limited only by the terms of the Constitution;
its exercise within these limits is otherwise absolute and fully discretionary. The
reasons for its exercise are not open to judicial inquiry or review, and indeed it
would appear that he may act without any reason, or at least without any
expressed reason, in support of his action.49
Where appropriate, however, his acts may be subject to the expanded
jurisdiction of the Court under Article VIII, Section 1, paragraph 2 of the
Constitution. This jurisdiction may be triggered, for example, if the President acts
outside, or in excess, of the limits of the pardoning power granted him, as
_______________
48 Monsanto v. Factoran, Jr., 252 Phil. 192, 198-199; 170 SCRA 190, 196
(1989).
49 The ruling in Guarin v. US, 30 Phil. 85, 87 (1915), accordingly adapted to
the terms of the 1987 Constitution.
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when he extends a pardon for a crime as yet not committed or when he extends
a pardon before conviction.50
Llamas v. Orbos,51 a 1991 case, discussed the extent and scope of the
President’s pardoning power:
During the deliberations of the Constitutional Commission, a subject of
deliberations was the proposed amendment to Art. VII, Sec. 19 which reads as
follows: “However, the power to grant executive clemency for violation of corrupt
practices laws may be limited by legislation.” The Constitutional Commission,
however, voted to remove the amendment, since it was in derogation of the powers
of the President. As Mr. Natividad stated:
I am also against this provision which will again chip more powers from the
President. In case of other criminals convicted in our society we extend probation
to them while in this case, they have already been convicted and we offer mercy.
The only way we can offer mercy to them is through this executive clemency
extended to them by the President. If we still close this avenue to them, they would
be prejudiced even worse than the murderers and the more vicious killers in our
society x x x.
The proposal was primarily intended to prevent the President from
protecting his cronies. Manifestly, however, the Commission preferred to
trust in the discretion of Presidents and refrained from putting
additional limitations on his clemency
_______________
50 Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
51 229 Phil. 920, 937-938; 202 SCRA 844, 858-859 (1991).
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powers. (II RECORD of the Constitutional Commission, 392, 418-419, 524-
525)
It is evident from the intent of the Constitutional Commission, therefore, that
the President’s executive clemency powers may not be limited in terms of coverage,
except as already provided in the Constitution, that is, “no pardon, amnesty,
parole, or suspension of sentence for violation of election laws, rules and
regulations shall be granted by the President without the favorable
recommendation of the COMELEC.” (Article IX, C, Section 5, Constitution) If those
already adjudged guilty criminally in court may be pardoned, those adjudged
guilty administratively should likewise be extended the same benefit. [Emphasis
supplied]
In considering and interpreting the terms of the pardon therefore, the
starting point for analysis is the position that the President’s power is full and
plenary, save only for the textual limits under the Constitution. In the exercise of
this power, too, it is not unreasonable to conclude, in the absence of any plain and
expressed contrary intention, that the President exercised the full scope of his
power.
A.2. Structural Examination of the Erap Pardon.
The whole text of the pardon that PGMA granted states:
WHEREAS, this Administration has a policy of releasing inmates who have
reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and half
years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek
any elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
ESTRADA, convicted by the Sandiganbayanof Plunder and imposed
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a penalty of Reclusion Perpetua. He is hereby restored to his civil and political
rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full,
including all writs and processes issued by the Sandiganbayan in pursuance
hereof, except for the bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this
pardon shall take effect.
Structurally, this grant is composed of two parts, namely, the introductory
Whereas Clauses consisting of three (3) paragraphs, and the Dispositive or
Command portion which defines the clemency extended and commands its
implementation.
In issuing a pardon, the President not only exercises his full discretion but
likewise directs and gives notice to all — the recipient, the officials and entities
concerned — that the recipient should now be released and his disqualification
lifted, pursuant to the terms of the pardon. In this sense, the structure of the
written pardon assumes importance as pardon has to be implemented in
accordance with its express terms and is no different in this sense from a judicial
decision that likewise must be implemented.
In judicial decisions, the Court’s resolution on a given issue before it is always
embodied in the decision or order’s fallo or dispositive portion.52 It is the directive
part of the decision or order which must be enforced or, in legal parlance, subjected
to execution. A court that issues an order of execution contrary to the terms of its
final judgment exceeds its jurisdiction, thus rendering its order invalid.53 Hence,
the order of
_______________
52 Obra v. Badua, 556 Phil. 456, 458; 529 SCRA 621, 626 (2007).
53 Id., at p. 461; p. 622.
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execution should always follow the terms of the fallo or dispositive portion.
Other than the fallo, a decision or executory order contains a body — the
court’s opinion — explaining and discussing the decision. This opinion serves
as the reason for the decision or order embodied in the fallo. In legalese, this
opinion embodies the decision’s ratio decidendi54 or the matter or issue directly
ruled upon and the terms and reasons for the ruling.
The decision’s structure has given rise in certain instances to conflicts, or at
the very least, to ambiguities that clouded the implementation of the decision.
In Gonzales v. Solid Cement Corporation,55 this Court laid down the rule when
these instances occur: in a conflict between the body of the decision and its fallo or
dispositive portion, the rule is:
The resolution of the court in a given issue — embodied in the fallo or
dispositive part of a decision or order — is the controlling factor in resolving
the issues in a case. The fallo embodies the court’s decisive action on the issue/s
posed, and is thus the part of the decision that must be enforced during execution.
The other parts of the decision only contain, and are aptly called, the ratio
decidendi (or reason for the decision) and, in this sense, assume a lesser role in
carrying into effect the tribunal’s disposition of the case.
When a conflict exists between the dispositive portion and the opinion
of the court in the text or body of the decision, the former must prevail over
the latter under the rule that the dispositive portion is the definitive order,
while the opinion is merely an explanatory statement without the effect of
a directive. Hence, the execution must conform with what the
_______________
54 PH Credit Corporation v. Court of Appeals, 421 Phil. 821, 833; 370 SCRA
155, 166 (2001).
55 G.R. No. 198423, October 23, 2012, 684 SCRA 344, 352.
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fallo or dispositive portion of the decision ordains or decrees. 56[Emphasis
supplied]
Thus, the body of the decision (or opinion portion) carries
no commanding effect; the fallo or dispositive portion carries the definite directive
that prevails over whatever is written in the opinion of the court. The body
contains the reasons or conclusions of the court, but orders nothing; execution
springs from the fallo or dispositive portion, not from the decision’s body or opinion
portion. In short, the fallo or dispositive portion prevails in case of conflict.
I say all these, aware that in Cobarrubias v. People,57 the Court made an
exception to the general rule that the fallo or dispositive portion always prevails
over the decision or order’s body. The exception is when one can clearly and
unquestionably conclude, based on the body of the decision and its discussions,
that a mistake had been committed in formulating the dispositive portion. In such
cases, reason dictates that the body of the decision should prevail.58
This contrary Cobarrubias result, to be properly understood, must be read and
considered in its factual context. In this case, the court itself made a blatant
mistake in the dispositive portion as it mixed up the criminal docket case numbers,
thus resulting in the erroneous dismissal of the wrong criminal case. Since the
decision’s body very clearly discussed which criminal case should be dismissed, the
Court then held that the body should prevail over the dispositive portion. In other
words, when the decision’s intent is beyond doubt and is very clear but was simply
beclouded by an intervening mistake, then the body of the decision must prevail.
A pardon, as an expression of an executive policy decision that must be
enforced, hews closely to the structure of a court
_______________
56 Id.
57 G.R. No. 160610, August 14, 2009, 596 SCRA 77, 89-90.
58 Id.
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decision. Their structures run parallel with each other, with the Whereas
Clauses briefly stating the considerations recognized and, possibly, the intents and
purposes considered, in arriving at the directive to pardon and release a convicted
prisoner.
Thus, while a pardon’s introductory or Whereas Clauses may be considered in
reading the pardon (in the manner that the opinion portion of a court decision is
read), these whereas clauses — as a rule — cannot also significantly affect the
pardon’s dispositive portion. They can only do so and in fact may even prevail, but
a clear and patent reason indicating a mistake in the grantor’s intent must be
shown, as had happened in Cobarrubias where a mistake intervened in the fallo.
A.3. The Pardon Extended to Erap Examined.
A.3(a) The Decision Convicting Erap.
 To fully understand the terms of the granted executive clemency, reference
should be made to the September 12, 2007 decision of the Sandiganbayan which
states:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in
Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito
Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER, defined in
and penalized by Republic Act No. 7080, as amended. On the other hand, for failure
of the prosecution to prove and establish their guilt beyond reasonable doubt, the
Court finds the accused Jose “Jinggoy” Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder and, accordingly, the Court hereby orders their
ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No. 7080,
as amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being
no aggravating or mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article
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63 of the Revised Penal Code. Accordingly, the accused Former President
Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion
Perpetua and the accessory penalties of civil interdiction during the period of
sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph Ejercito Estrada
has been under detention shall be credited to him in full as long as he agrees
voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended
by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the
government of the following:
(1) The total amount of Five Hundred Forty Two Million Seven Hundred
Ninety One Thousand Pesos (P545,291,000.00), with interest and income earned,
inclusive of the amount of Two Hundred Million Pesos (P200,000,000.00),
deposited in the name and account of the Erap Muslim Youth Foundation.
(2) The amount of One Hundred Eighty-Nine Million Pesos
(P189,000,000.00), inclusive of interests and income earned, deposited in the Jose
Velarde account.
(3) The real property consisting of a house and lot dubbed as Boracay
Mansion located at #100 11th Street, New Manila, Quezon City.
The cash bonds posted by accused Jose Jinggoy Estrada and Atty. Edward S.
Serapio are hereby ordered cancelled and released to the said accused or their duly
authorized representatives upon presentation of the original receipt evidencing
payment thereof and subject to the usual accounting and auditing procedures.
Likewise, the hold departure orders issued against the said accused are hereby
recalled and declared functus officio.
SO ORDERED.
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A.3(b) The Pardon in light of the Judgment of Conviction.
This judgment has several components, namely: the finding of guilt; the
principal penalty of imprisonment imposed; the inherent accessory penalties; the
confiscation and forfeitures; and the disposition of the cash bonds that the
acquitted accused filed.
Of these, actions on the forfeitures and the cash bonds have apparently been
recognized as completed pursuant to Article 45 of the RPC, and have been
expressly excluded from the executive clemency.59 Thus, what remained for the
executive clemency to touch upon were the principal and the accessory penalties
that were outstanding, i.e., the remaining terms of the imprisonment; and the
accessory penalties decreeing that Erap is “restored to his civil and political
rights.”
B.
The Risos-Vidal’s
Objections Relating to Pardon.
The Risos-Vidal petition sows confusion into the plain terms of the executive
clemency by arguing that: first, the Third Whereas Clause (referring to Erap’s
public commitment that he would no longer seek public office) in fact embodies a
condition for the grant of the executive clemency; and second, no express
restoration of the right to hold public office and to suffrage was made as the
“restoration” was under general terms that did not cover these specific rights.
59 The pardon reads in part that “The forfeitures imposed by
the Sandiganbayanremain in force and in full, including all writs and processes
issued by the Sandiganbayan in pursuance hereof, except for the bank account(s)
he owned before his tenure as President.”
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B.1. Refutation of the Risos-Vidal Objections.
B.1(a) “Absolute Pardon” as Officially Defined.
A ready reference to understand a pardon is its official definitionunder the
applicable law and applicable rules and regulations. The definition of absolute
pardon appears in the rules and regulations of the Board of Pardons and Parole
(BPP).60 The BPP is the constituent office in the Executive
Department61 responsible for the handling of cases of pardon upon petition, or any
referral by the Office of the President on pardons and parole, or motu propio.62 In
other words, the BPP is the foremost authority on what its title plainly states —
pardons and paroles.
Under the BPP’s Revised Rules and Regulations, “absolute pardon”
refers “to the total extinction of the criminal liability of the individual to
whom it is granted without any condition. It restores to the individual his
civil and political rights and remits the penalty imposed for the particular
offense of which he was convicted.”63
 Aside from absolute pardon, there is the conditional pardon64which is
defined as “the exemption of an individual, within certain limits or conditions, from
the punishment which the law inflicts for the offense he had committed resulting in
the partial extinction of his criminal liability.”
_______________
60 Rule 1, Section 2 paragraph (p) of the Revised Rules and Regulations of the
Board of Pardons and Parole; This definition is also found in the 2006 Revised
Manual of the BPP.
61 Under the Department of Justice pursuant to the Administrative Code,
Book IV, Title III, Chapter I, Section 4(6).
62 2006 Revised Manual on Parole and Executive Clemency.
63 Supra note 60.
64 Rule 1, Section 2 paragraph (q) of the Revised Rules and Regulations of the
Board of Pardons and Parole; This definition is also found in the 2006 Revised
Manual of the BPP.
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These are the authoritative guidelines in determining the nature and extent of
the pardon the President grants, i.e., whether it is absolute or conditional. To
stress, the BPP is the body that investigates and recommends to the President
whether or not a pardon should be granted to a convict, and that closely
coordinates with the Office of the President on matters of pardons and parole.
Even a cursory examination of the Erap pardon and the BPP Rules would show
that the wordings of the pardon, particularly on civil and political rights, carried
the wordings of the BPP Rules. Thus, Erap’s pardon states:
IN VIEW HEREOF, and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty of
Reclusion Perpetua. He is hereby restored to his civil and political rights.
In these lights, when PGMA (as President and Head of the Executive
Department to which the BPP belongs) granted Erap executive clemency
and used the words of the BPP rules and regulations, she raised the
inference that her grant was in the spirit in which the terms of the pardon
are understood in the BPP rules.
In other words, she clearly intended the granted pardon to be absolute.
Thus, the pardon granted totally extinguished the criminal liability of Erap,
including the accessory penalty of perpetual absolute disqualification. It cannot be
otherwise under the plain and unequivocal wording of the definition of absolute
pardon, and the statement in the pardon that Erap is restored to his civil and
political rights.
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B.2. The Third Whereas Clause as a Condition.
The pardon extended to Erap was very briefly worded. After three
short Whereas Clauses referring to: the Administration policy on the release of
inmates;65 the period Erap had been under detention;66 and Erap’s attributed past
statement publicly committing that he would no longer seek any elective
position,67 the pardon proceeds to its main directives touching on the principal
penalty of reclusion perpetua and the accessory penalties by expressly restoring
Erap’s civil and political rights.
Unlike in a court decision where the ratio decidendi fully expounds on the
presented issues and leads up to the dispositive portion, the Whereas Clauses all
related to Erap but did not, singly or collectively, necessarily indicate that they are
conditions that Erap must comply with for the continued validity of his pardon.
Notably, the first two Whereas Clauses are pure statements of fact that the
grantor recognized, referring as they do to an administration policy and to the age
of Erap.
The statement on the administration policy of releasing convicts who are 70
years old, to be sure, could not have been intended to be conditional so that a future
change of policy or a mistake in Erap’s age would have led to the invalidity of the
pardon. Purely and simply, these two Whereas clauses were nothing more
than statements of fact that the grantor recognized in the course of
considering the pardon and they were never intended to operate as conditions.
_______________
65 Under Section 3(e) of the 2006 Revised Manual on Parole and Executive
Clemency, the BPP could recommend for pardon [p]risoners who are 70 years old
and above and who have served at least 5 years of their sentence or those whose
continued imprisonment is inimical to their health.
66 Presumably from Court and Department of Justice records.
67 Source and circumstances unknown.
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The third Whereas Clause, one of the three clauses that the pardon contains,
is similarly a statement of fact — what Erap had publicly committed in the
past, i.e., that he would no longer seek public office. Such a statement would not
be strange coming from a 70-year-old man convicted of plunder and sentenced
to reclusion perpetua (literally, life imprisonment) and who, in the ordinary course,
looks forward to an extended prison term. Under these conditions, he could easily
say he would not seek political office again.
Of course, because the statement, standing by itself, can be equivocal, it can
also be read with a bias against Erap and be understood to be a promise or a
“commitment.” The plain reality, however, is that this clause does not bear the
required context that would lead to this conclusion, and is totality lacking in any
indicator that would make it a condition for the pardon. In short, a clear link to
this kind of conclusion is plainly missing.
This link, for example, would have been there and would have radically
changed the meaning of this Whereas clause had it stated that Erap publicly
committed that, if pardoned, he would not seek public office. No such link,
however, appears in the body of the pardon, nor is any evidence available from the
records of the case, to show that a promissory commitment had been made and
adopted by PGMA, as grantor.
Thus, as matters stand, the third Whereas clause stands in the same footing
and should be characterized in the same manner that the two other clauses are
characterized: singly or collectively, they are simply declarations of what the
grantor recognized as facts at the time the pardon was granted. In the manner the
Court spoke of preambles in the case of Kuwait Airways Corporation v. Philippine
Airlines, Inc.,68 the Whereas clauses merely manifest considerations that cannot
be the
_______________
68 G.R. No. 156087, May 8, 2009, 587 SCRA 388, 410.
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origin of rights and obligations69 and cannot make the Erap pardon
conditional.
Simply as an aside (as I feel the topic does not deserve any extended
consideration), I do not believe that the “acceptance” of the pardon is
important in the determination of whether the pardon extended is absolute or
conditional.
Irrespective of the nature of the pardon, the moment the convict avails of the
clemency granted, with or without written acceptance, then the pardon is already
accepted. If this is to be the standard to determine the classification of the pardon,
then there would hardly be any absolute pardon; upon his release, the pardon is
deemed accepted and therefore conditional.
If an express acceptance would serve a useful purpose at all, it is in the binding
effect that this acceptance would put in place. As in the case of an appointment, a
pardon can be withdrawn at any time before it is accepted by the grantor.
Acceptance would thus be the means to tie the grantor to the grant.
What is important, to my mind, is proof of the communication of the pardon to
the convict, in the cases when terms and conditions are attached to the pardon.
Communications of these terms, and proof that the convict availed himself of the
granted clemency, would suffice to conclude that the terms and conditions had
been accepted and should be observed.
B.3. Any Doubt Should Take Popular Vote into Account.
At most, I can grant in a very objective reading of the bare terms of the
third Whereas clause that it can admit of various interpretations. Any
interpretative exercise, however, in order to be meaningful and conclusive must
bring into play relevant
_______________
69 Id.
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interpretative aids, even those extraneous to the pardon, such as the events
that transpired since the grant of the pardon. This case, in particular, the most
relevant interpretative aids would be the two elections where Erap had been a
candidate, the electorate’s choices, and the significant number who voted in good
faith to elect Erap.
In 2010, this number was sizeable but Erap only landed in second place with a
vote of 9,487,837 in a field of ten (10) candidates. This result though cannot but be
given appropriate recognition since the elections were nationwide and Erap’s
conviction and pardon were issues used against him.
In the 2013 elections (where Erap’s qualification is presently being contested),
the results were different; he garnered sufficient votes to win, beating the
incumbent in this electoral fight for the premiere post in the City of Manila.
Under these circumstances, no reason exists to disregard the popular vote,
given that it is the only certain determinant under the uncertainty that
petitioner Risos-Vidal NOW TRIES to introduce in the present case. If this
is done and the popular vote is considered together with the official definition of
pardon under the BPP regulations, the conclusion cannot but be the recognition by
this Court that Erap had been given back his right to vote and be voted upon.
B.3(a) The Express Restoration of the Right to Hold Office.
The petitioner Risos-Vidal in her second substantive objection posits that the
pardon did not expressly include the right to hold office, relying on Article 36 of
the RPC that provides:
Pardon; its effects.—A pardon shall not work on the restoration of the right to
hold public office or the right of suffrage, unless such rights be expressly restored
by the terms of the pardon.
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To the petitioner, it was not sufficient that under the express terms of the
pardon, Erap had been “restored to his civil and political rights.” Apparently, she
wanted to find the exact wording of the above quoted Article 36 or, as stated in her
various submissions, that Erap should be restored to his “full” civil and political
rights.
To set the records straight, what is before us is not a situation where a pardon
was granted without including in the terms of the pardon the restoration of civil
and political rights. What is before us is a pardon that expressly and pointedly
restored these rights; only, the petitioner wants the restoration in her own terms.
In raising this objection, the petitioner apparently refuses to accept the official
definition of “absolute pardon” pointed out above; she also fails or refuses to grasp
the full import of what the term “civil and political rights” connotes. The term
traces its roots to the International Covenant on Civil and Political
Rights70 which in turn traces its genesis to the same process that led to
the Universal Declaration of Human Rights to which the Philippines is a
signatory.71
_______________
 70 The International Covenant on Civil and Political Rights (ICCPR) is a
multilateral treaty adopted by the United Nations General Assembly on December
16, 1966, and in force from March 23, 1976. It commits its parties to respect the
civil and political rights of individuals, including the right to life, freedom of
religion, freedom of speech, freedom of assembly, electoral rights and rights to due
process and a fair trial. As of April 2014, the Covenant has 74 signatories and 168
parties. The ICCPR is part of the Declaration on the Granting of Independence to
Colonial Countries and Peoples, International Bill of Human Rights, along with
the International Covenant on Economic, Social and Cultural Rights (ICESCR)
and the Universal Declaration of Human Rights (UDHR). The Philippines signed
this treaty on December 19, 1966 and ratified it on October 23, 1986.
[Source: http://en.wikipedia.or/wiki/International_Covenant_
on_Civil_and_Political_Rights]
71 The Universal Declaration of Human Rights (UDHR) is a declaration
adopted by the United Nations General Assembly on 10
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Closer to home, Republic Act No. 9225 (The Citizenship Retention and
Reacquisition Act of 2003) also speaks of “Civil and Political Rights and
Liabilities” in its Section 5 by providing that “Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and
be subject to all the attendant liabilities and responsibilities under existing laws of
the Philippines…” and in Section 5(5) mentions the “right to vote and be elected
or appointed to any public office in the Philippines x x x.”
In Simon v. Commission on Human Rights,72 the Court categorically
explained the rights included under the term “civil and political rights,” in the
context of Section 18, Article XIII of the Constitution which provides for the
Commission on Human Rights’ power to investigate all forms of human rights
violations involving civil and political rights.
According to Simon, the term “civil rights,” has been defined as referring (t)o
those (rights) that belong to every citi-
_______________
December 1948 at the Palais de Chaillot, Paris. The Declaration arose directly
from the experience of the Second World War and represents the first global
expression of rights to which all human beings are inherently entitled. The
Declaration consists of thirty articles which have been elaborated in subsequent
international treaties, regional human rights instruments, national constitutions,
and other laws. The International Bill of Human Rights consists of the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, and the International Covenant on Civil and Political Rights and
its two Optional Protocols. In 1966, the General Assembly adopted the two detailed
Covenants, which complete the International Bill of Human Rights. In 1976, after
the Covenants had been ratified by a sufficient number of individual nations, the
Bill took on the force of international law.
The Declaration was commissioned in 1946 and was drafted over two years by
the Commission on Human Rights. The Philippine representative was part of the
Commission; the Philippines voted in favor of this Declaration.
(Source: http://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights)
72 G.R. No. 100150, January 5, 1994, 229 SCRA 117, 132-133.
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zen of the state or country, or, in wider sense, to all its inhabitants, and are not
connected with the organization or administration of the government. They include
the rights of property, marriage, equal protection of the laws, freedom of
contract, etc. or, as otherwise defined, civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community. Such term may also
refer, in its general sense, to rights capable of being enforced or redressed in a civil
action. Also quite often mentioned are the guarantees against involuntary
servitude, religious persecution, unreasonable searches and seizures, and
imprisonment for debt.73
Political rights, on the other hand, refer to the right to participate, directly
or indirectly, in the establishment or administration of government, the right of
suffrage, the right to hold public office, the right of petition and, in general,
the rights appurtenant to citizenship vis-à-vis the management of government.74
In my view, these distinctions and enumerations of the rights included in the
term “civil and political rights,”75 as accepted internationally and domestically, are
sufficiently clear and cannot be made the serious basis of the present
_______________
73 Id.
74 Id.
75 Civil rights include the rights of property, marriage, equal protection of the
laws, freedom of contract, etc. or, as otherwise defined, civil rights are rights
appertaining to a person by virtue of his citizenship in a state or community. Such
term may also refer, in its general sense, to rights capable of being enforced or
redressed in a civil action. Also quite often mentioned are the guarantees against
involuntary servitude, religious persecution, unreasonable searches and seizures,
and imprisonment for debt.
Political rights refer to the right to participate, directly or indirectly, in the
establishment or administration of government, the right of suffrage, the right to
hold public office, the right of petition and, in general, the rights appurtenant to
citizenship vis-à-vis the management of government.
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objection, i.e., that further specification should be made in light of Article 36 of
the RPC that requires the restoration of the rights of the right to suffrage and to
hold office to be express. To insist on this argument is to require to be written into
the pardon what is already there, in the futile attempt to defeat the clear intent of
the pardon by mere play of words.
B.3(a)(i) The RPC Perspectives.
 From the perspective of the RPC, it should be appreciated, as discussed above,
that a conviction carries penalties with varying components. These are mainly the
principal penalties and the accessory penalties.76
Reclusion perpetua, the penalty imposed on Erap, carries with it the
accessory penalty of civil interdiction for life or during the period of the sentence
and that of perpetual absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless the same shall have been
remitted in the pardon.77
The full understanding of the full practical effects of pardon on the
principal and the accessories penalties as embodied in the RPC, requires the
combined reading of Articles 36 and 41 of the RPC, with Article 41 giving full
meaning to the requirement of Article 36 that the restoration of the right to hold
office be expressly made in a pardon if indeed this is the grantor’s intent. An
express mention has to be made of the restoration of the rights to vote and be voted
for since a pardon with respect to the principal penalty would not have the effect
of restoring these specific rights unless their specific restoration is expressly
mentioned in the pardon.
The Erap’s pardon sought to comply with this RPC requirement by specifically
stating that he was “restored to his
_______________
76 See Articles 40 to 45 of the Revised Penal Code on penalties in which
accessory penalties are inherent.
77 Article 41, Revised Penal Code.
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324 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
civil and political rights.” I take the view that this restoration already includes
the restoration of the right to vote and be voted for as these are rights subsumed
within the “political rights” that the pardon mentions; in the absence of any
express accompanying reservation or contrary intent, this formulation grants a
full restoration that is coterminous with the remitted principal penalty of reclusion
perpetua.
Risos-Vidal objects to this reading of Article 36 on the ground that Section
3678 and 4179 expressly require that the restoration be made specifically of the
right to vote and to be voted upon. J. Leonen supports Risos-Vidal’s arguments
and opines that civil and political rights collectively constitute a bundle of rights
and the rights to vote and to be voted upon are specific rights expressly singled out
and required by these RPC articles and thus must be expressly restored. It posits
too that these are requirements of form that do not diminish the pardoning power
of the President.
I note in this juncture that J. Leonen’s position on the requirements of Articles
36 and 41, is a very literal reading of 80-year-old
provisions124 whose interpretations have been overtaken by events and should now
be updated. As I discussed
_______________
78 Pardon; its effect.—A pardon shall not work the restoration of the right to
hold public office, or the right of suffrage, unless such rights be expressly restored
by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
79 Reclusion perpetua and reclusion temporal; Their accessory penalties.—The
penalties of reclusion perpetua and reclusion temporal shall carry with them that
of civil interdiction for life or during the period of the sentence as the case may be,
and that of perpetual absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon.
80 The Revised Penal Code, Act No. 3815 was passed on December 8, 1930 and
become effective on January 1, 1932. It has undergone a lot of amendments but
Articles 36 and 41 are provisions that have largely been left intact.
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above, technical meanings have since then attached to the term “civil and
political rights,” which meanings cannot be disregarded without doing violence to
the safeguards that these rights have acquired over the years.
In this age and time, “political rights” cannot be understood meaningfully as
rights with core values that our democratic system protects, if these rights will not
include the right to vote and be voted for. To exclude the rights of suffrage and
candidacy from the restoration of civil and political rights shall likewise signify a
diminution, other than what the Constitution allows, of the scope of pardon that
the President can extend under the 1987 Constitution. Significantly, this
Constitution itself did not yet exist when the Revised Penal Code was passed so
that this Code could not have taken into account the intent of the framers of this
Constitution to maintain the plenary nature of the pardoning power.81
B.3(a)(ii) Harmonization of Conflicting Provisions.
Where seeming conflicts appear between or among provisions of law,
particularly between a constitutional provision and a statute, the primary rule in
understanding these seeming conflicts is to harmonize them, giving effect to
both provisions within the limits of the constitutional provision.82
As posed in this case, this seeming conflict occurs between the terms and intent
of the current Constitution to give the President the full power to grant executive
clemency, limited only by the terms of the Constitution itself, on the one hand, and
the collective application of the Articles 36 and 41 of the RPC, on the other.
In my view, harmonization occurs under the Erap pardon by giving due
recognition to the essentially plenary nature of
_______________
81 See: discussions and footnotes at pp. 304-307 and 316-318.
82 Teehankee v. Rovira, 75 Phil. 634, 643 (1945).
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326 SUPREME COURT REPORTS ANNOTATED
 Risos-Vidal vs. Commission on Elections Casido,88 and in 2000, in People v. Patriarca, Jr.89 — which cited with approval
the President’s pardoning power under Section 19, Article VII of the this Court’s statement in Barrioquinto v. Fernandez.90
Constitution, while giving effect to the RPC intent to make clear in the terms of J. Leonen added that the Monsanto inclusion must also be deemed
the pardon the intent to restore the convict’s rights to vote and to be voted upon, superseded by the Court’s ruling in Romeo Jalosjos v. COMELEC91 which
as a matter of form that is satisfied by reference to the restoration of political rights recognized that “one who is previously convicted of a crime punishable by reclusion
that, as now understood internationally and domestically, include the restoration perpetua or reclusion temporal continues to suffer the accessory penalty of
of the right to vote and to be voted upon. Understood in this manner, the RPC perpetual absolute disqualification even though pardoned as to the principal
provisions would not be constitutionally infirm as they would not diminish the penalty, unless the accessory penalty shall have been expressly remitted in the
pardoning power of the President. pardon.”
To address another concern that J. Leonen expressed, no need exists to require _______________
the President to grant the “full” restoration of Erap’s civil and political rights as
this kind of interpretation renders illusory the extent of the President’s pardoning 86 Id., at p. 41.
power by mere play of words. In the absence of any contrary intent, the use of the 87 Id.
modifier “full” is an unnecessary surplusage. 88 336 Phil. 344; 269 SCRA 360 (1997).
89 395 Phil. 690; 341 SCRA 464 (2000).
B.3(a)(iii) The Monsanto v. Factoran Case. 90 82 Phil. 642 (1949).
91 G.R. No. 205033, June 18, 2013, 698 SCRA 742.
I also address J. Leonen’s discussion of the Monsanto v. Factoran case. 328
Part and parcel of the topic “RPC Perspectives” is the position that J. Leonen 328 SUPREME COURT REPORTS ANNOTATED
took in Monsanto — in the course of repudiating Cristobal v. Labrador,83 Pelobello
Risos-Vidal vs. Commission on Elections
v. Palatino84 and Ex Parte Garland.85 J. Leonen took notice of the statement
I disagree with these positions, particularly with the statement that
in Monsanto that “[t]he better considered cases regard full pardon x x x as
the Monsanto inclusion was overturned by Casido, Patriarca (citing Barrioquinto)
relieving the party from all the punitive consequences of his criminal
and Romeo Jalosjos.
act, including the disqualification or disabilities based on finding of guilt.” J.
I maintain that the inclusion was the ratio decidendi of the case and was not
Leonen went on to state that this “including phrase or inclusion” is not an
just a passing statement of the Court. In Monsanto, the Court emphasized that a
authority in concluding that the grant of pardon ipso facto
pardon may remit all the penal consequences of a criminal indictment.92 The Court
_______________
even applied this statement by categorically ruling that the full pardon granted
to Monsanto “has resulted in removing her disqualification from holding
83 71 Phil. 34 (1940). public employment.”93 In fact, J. Leonen’s interpretation of Monsanto is
84 72 Phil. 441 (1940). misleading; his conclusion on the superiority
85 71 U.S. 833 (1866). of Casido, Patriarca and Jalosjos over Monsanto is likewise misplaced and
327 without basis.
VOL. 747, JANUARY 21, 2015 327 For clarity, the inclusion phrase is part of the Court’s discussion
Risos-Vidal vs. Commission on Elections in Monsanto and was made in the context that although the Court repudiated
remits the accessory disqualifications or disabilities imposed on a convict the Garland ruling (as cited in Pellobello and Cristobal) that pardon erases the
regardless of whether the remission was explicitly stated, 86citing the following guilt of the convict, the Court still acknowledged that pardon may remove all the
reasons: punitive consequences of a convict’s criminal act, including the
First, J. Leonen maintains that the inclusion was not a pronouncement of a disqualifications or disabilities based on the finding of guilt.94
prevailing rule but was merely a statement made in the course of a comparative The complete discussion of the Court in Monsanto where J.
survey of cases during which the Court manifested a preference for “authorities Leonen selectively lifted the inclusion for his own purposes is as follows:95
[that reject] the unduly broad language of the Garland case.”87 Having disposed of that preliminary point, we proceed to discuss the
Second, the footnote to the inclusion indicates that Monsanto relied on a case effects of a full and absolute pardon in relation to the decisive question
decided by a United States court. Thus, Monsantowas never meant as a of whether or not the plenary pardon had the effect of removing
summation of the controlling principles in this jurisdiction and did not consider _______________
Articles 36 and 41 of the RPC.
Lastly, J. Leonen argues that even granting that the inclusion articulated a 92 Supra note 48 at p. 202; p. 199.
rule, this inclusion, made in 1989, must be deemed to have been abandoned, in 93 Id., at p. 204; p. 201.
light of the Court’s more recent pronouncements — in 1997, in People v. 94 Id., at p. 201; p. 198.
 95 Id., at pp. 199-204; pp. 197-201.
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the disqualifications prescribed by the Revised Penal Code.
xxxx
The Pelobello v. Palatino and Cristobal v. Labrador cases, and several others
show the unmistakable application of the doctrinal case of Ex Parte Garland,
whose sweeping generalizations to this day continue to hold sway in our
jurisprudence despite the fact that much of its relevance has been downplayed by
later American decisions. Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the guilt
of the offender; and when the pardon is full, it releases the punishment and blots
out of existence the guilt, so that in the eye of the law the offender is as innocent
as if he had never committed the offense. If granted before conviction, it prevents
any of the penalties and disabilities, consequent upon conviction, from attaching;
if granted after conviction, it removes the penalties and disabilities and restores
him to all his civil rights; it makes him, as it were, a new man, and gives him a
new credit and capacity.
Such generalities have not been universally accepted, recognized or approved.
The modern trend of authorities now rejects the unduly broad language of
the Garland case (reputed to be perhaps the most extreme statement which has
been made on the effects of a pardon). To our mind, this is the more realistic
approach. While a pardon has generally been regarded as blotting out the existence
of guilt so that in the eye of the law the offender is as innocent as though he never
committed the offense, it does not operate for all purposes. The very essence of a
pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase
the fact of the commission of the crime and the conviction thereof. It does not wash
out the moral stain. It involves forgiveness and not forgetfulness.
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Risos-Vidal vs. Commission on Elections
The better considered cases regard full pardon (at least one not based on the
offender’s innocence) as relieving the party from all the punitive consequences of
his criminal act, including the disqualifications or disabilities based on the
finding of guilt. But it relieves him from nothing more. “To say, however, that
the offender is a ‘new man,’ and ‘as innocent as if he had never committed the
offense’; is to ignore the difference between the crime and the criminal. A person
adjudged guilty of an offense is a convicted criminal, though pardoned; he may be
deserving of punishment, though left unpunished; and the law may regard him as
more dangerous to society than one never found guilty of crime, though it places
no restraints upon him following his conviction.”
xxxx
In this ponencia, the Court wishes to stress one vital point: While we are
prepared to concede that pardon may remit all the penal consequences of
a criminal indictment if only to give meaning to the fiat that a pardon,
being a presidential prerogative, should not be circumscribed by
legislative action, we do not subscribe to the fictitious belief that pardon
blots out the guilt of an individual and that once he is absolved, he should
be treated as if he were innocent. For whatever may have been the judicial
dicta in the past, we cannot perceive how pardon can produce such “moral changes”
as to equate a pardoned convict in character and conduct with one who has
constantly maintained the mark of a good, law-abiding citizen.
xxxx
Pardon granted after conviction frees the individual from all the penalties and
legal disabilities and restores him to all his civil rights. But unless expressly
grounded on the person’s innocence (which is rare), it cannot bring back lost
reputation for honesty, integrity and fair dealing. This must be constantly kept in
mind lest we lose track of the true character and purpose of the privilege.
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Thus, notwithstanding the expansive and effusive language of
the Garland case, we are in full agreement with the commonly held
opinion that pardon does not ipso facto restore a convicted felon to public
office necessarily relinquished or forfeited by reason of the conviction
although such pardon undoubtedly restores his eligibility for
appointment to that office.
xxxx
For petitioner Monsanto, this is the bottom line: the absolute
disqualification or ineligibility from public office forms part of the
punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred to
that when her guilt and punishment were expunged by her pardon, this
particular disability was likewise removed. Henceforth, petitioner may apply
for reappointment to the office which was forfeited by reason of her conviction. And
in considering her qualifications and suitability for the public post, the facts
constituting her offense must be and should be evaluated and taken into account
to determine ultimately whether she can once again be entrusted with public
funds. Stated differently, the pardon granted to petitioner has resulted in
removing her disqualification from holding public employment but it
cannot go beyond that. To regain her former post as assistant city treasurer,
she must reapply and undergo the usual procedure required for a new
appointment. [Emphasis and underscoring supplied; citations omitted]
As against J. Leonen’s interpretation of the Monsanto ruling above, I deduce
the following contrary points:
First, contrary to J. Leonen’s statement, the Court took into consideration
the provisions of the RPC in arriving at its ruling in Monsanto.
To reiterate, Monsanto exhaustively discussed the effects of a full and absolute
pardon on the accessory penalty of dis-
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332 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
qualification. Hence, the Court ruled that the full pardon granted to Monsanto
resulted in removing her disqualification from holding public employment under
the RPC but did not result in her automatic reinstatement as Assistant City
Treasurer due to the repudiation of the Garland ruling cited
in Pelobello and Labrador.
In contrast, the ruling of the Court in Casido96 and Patriarca,97which both
cited Barrioquinto,98 all related to amnesty
_______________
96 In the Court’s July 30, 1996 resolution, it ruled that the conditional pardons
granted in this case to accused-appellants William Casido and Franklin Alcorin
are void for having been extended during the pendency of their instant appeal.
However, subsequent to this, the applications for amnesty of accused-appellants
were granted by the National Amnesty Commission on February 22, 1996. Issue:
Whether or not Casido and Alcorin may now be released on the basis of the
amnesty granted to them.
97 Accused-appellant Jose Patriarca is a member of the New People’s Army.
He was convicted of murder for killing persons in pursuit of his group’s political
belief. Subsequently, accused-appellant applied for amnesty under Proclamation
No. 724 amending Proclamation No. 347, dated March 25, 1994, entitled “Granting
Amnesty to Rebels, Insurgents, and All Other Persons Who Have or May Have
Committed Crimes Against Public Order, Other Crimes Committed in
Furtherance of Political Ends, and Violations of the Article of War, and Creating a
National Amnesty Commission.” His application was favorably granted by the
National Amnesty Board.Issue: Whether or not Patriarca is entitled to amnesty.
98 Petitioners Norberto Jimenez and Loreto Barrioquinto were charged with
the crime of murder. Subsequently, Proclamation No. 8, dated September 7, 1946,
which grants amnesty in favor of all persons who may be charged with an act
penalized under the Revised Penal Code in furtherance of the resistance to the
Japanese forces or against persons aiding in the war efforts of the enemy.
After a preliminary hearing had started, the Amnesty Commission issued an
order returning the cases of the petitioners to the Court of First Instance of
Zamboanga, without deciding whether or not they are entitled to the benefits of he
said Amnesty Proclamation, on the ground that inasmuch as neither Barrioquinto
nor
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and not to pardon. The paragraph in Casido and Patriarca that J. Leonen
quoted to contradict the Monsanto inclusion is part of the Court’s attempt
in Casido and Patriarca to distinguish amnesty from pardon.
For clarity, below is the complete paragraph
in Casido99 and Patriarca100 where J. Leonen lifted the portion (highlighted in
bold) that he used to contradict the Monsanto inclusion:
The theory of the respondents, supported by the dissenting opinion, is
predicated on a wrong contention of the nature or character of an amnesty.
Amnesty must be distinguished from pardon.
Pardon is granted by the Chief Executive and as such it is a private act which
must be pleaded and proved by the person pardoned, because the courts take no
notice thereof; while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the courts should take
judicial notice. Pardon is granted to one after conviction; while amnesty is to classes
of persons or communities who may be guilty of political offenses, generally before
or after the institution of the criminal prosecution and sometimes after
conviction. Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted, that is, it
abolishes or forgives the punishment, and for that reason it does “nor
work the restoration of the rights to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the
pardon,” and it “in no case exempts the culprit
_______________
Jimenez have admitted having committed the offense, because Barrioquinto
alleged that it was Hipolito Tolentino who shot and killed the victim, they cannot
invoke the benefits of amnesty. Issue: Whether or not petitioners may not be
covered by the amnesty because they have not pleaded guilty to the offense
charged.
99 People v. Casido, supra note 88 at pp. 351-352; p. 368.
100 People v. Patriarca, Jr., supra note 89 at p. 699; p. 472.
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Risos-Vidal vs. Commission on Elections
from the payment of the civil indemnity imposed upon him by the
sentence.” (article 36, Revised Penal Code) While amnesty looks
backward and abolishes and puts into oblivion the offense itself, it so
overlooks and obliterates the offense with which he is charged that the
person released by amnesty stands before the law precisely as though he
had committed no offense.101 [Emphasis supplied]
As between Monsanto, involving a full pardon, and the three amnesty cases
(Casido, Patriarca and Barrioquinto), Monsantoclearly applies to the pardon that
is involved in the present case where the dispositive portion made a restoration of
Erap’s civil and political rights. Note that the pardon described in the amnesty
cases does not even identify whether the pardon being described was absolute or
conditional. In fact, the portion cited by the majority in the amnesty cases merely
repeated what Article 36 of the RPC provides. Monsanto, on the other hand and to
the contrary, took into consideration these RPC provisions on disqualifications in
relation with the effects of a full pardon.
From this perspective, J. Leonen is thus careless and misleading in
immediately concluding that the Monsanto ruling on “inclusion” was overturned
by the amnesty cases.
Similarly, contrary to J. Leonen’s argument, the ruling in Romeo Jalosjos v.
COMELEC (Jalosjos) did not supersede the Monsantoruling cited above.
In Jalosjos,102 the Court merely reconciled the apparent conflict between
Section 40(a)103 of the Local Government
_______________
 101 As cited in Barrioquinto v. Fernandez, supra note 90 at pp. 646-647.
102 Jalosjos v. Comelec, supra note 91at pp. 759-760.
103 Sec. 40. Disqualifications.—The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or
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Code and Article 30104 of the RPC, which provides for the effects of perpetual
or temporary absolute disqualification.
The Court held in Jalosjos that Article 41 of the RPC expressly states that one
who was previously convicted of a crime punishable by reclusion
perpetua or reclusion temporal continues to suffer the accessory penalty of
perpetual absolute disqualification even though pardoned as to the principal
penalty, unless this accessory penalty had been expressly remitted in the pardon.
In Jalosjos, the accessory penalty had not been expressly remitted in the Order of
Commutation or by any subsequent pardon; hence, Jalosjos’ disqualification to run
for elective office was deemed to subsist.105
Jalosjos could be harmonized with Monsanto in that the latter also recognized
the provisions of the RPC on the accessory penalty of disqualification but holds
that the full pardon remits this disqualification.
In the present case, Erap’s pardon fully complied with the RPC requirements
for the express remission of the accessory
_______________
more of imprisonment, within two (2) years after serving sentence. (Emphasis
and underscoring supplied)
104 Art. 30. Effects of the penalties of perpetual or temporary absolute
disqualification.—The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender
may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular office or
to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned. In case of temporary disqualification, such
disqualification as is comprised in paragraphs 2 and 3 of this Article shall last
during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office
formerly held. (Emphasis and underscoring supplied)
105 Jalosjos v. COMELEC, supra note 91 at pp. 762-763.
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penalty of perpetual absolute disqualification as the pardon in fact restored
him to his civil and political rights. In this light, the Monsanto ruling still
applies: while the PGMA pardon does not erase Erap’s guilt, it nonetheless
remitted his disqualification to run for public office and to vote as it
expressly restored him to his civil and political rights.
The Office of the Solicitor General succinctly expressed the Monsanto ratio
decidendi when it said that the Court, despite ruling against Monsanto,
“nevertheless reaffirmed the well-settled doctrine that the grant of pardon also
removes one’s absolute disqualification or ineligibility to hold public office.”
B.3(b) Arguments via the Interpretative Route.
Alternatively, if indeed the third Whereas clause had injected doubt in the
express and unequivocal restoration made, then two interpretative recourses can
be made to determine how this doubt can be resolved.
B.3(b)(i) The Liberal Mode of Interpretation.
The first approach is to use by analogy the ruling and reasoning in the case
of Frank v. Wolfe106 which involved commutation of sentence, a lesser grant but
which is an act of grace nevertheless.
The Court held in this case that “it is a principle universally recognized
that all such grants are to the construed favorably to the grantee, and
strictly as to the grantor, not only because they partake of the nature of a
deed, and the general rule of interpretation that the terms of a written
instrument evidencing with especial force to grants or pardon and
commutations, wherein the grantor executes the instrument with little or no
right on the part of the grantee to intervene in its execution or dictate
_______________
106 11 Phil. 466, 470-471, October 21, 1908.
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its terms, but because of the very nature of the grant itself as an act of grace
and clemency. (Bishop Crim. Law, Sec. 757, and cases cited: Osborn v. U.S., 91
U.S. 474; Lee v. Murphy, 22 Grat. Va., 789) Applying the rule we think that, if it
had been the intention of the commuting authority to deprive the prisoner of the
beneficent provisions of Act No. 1533,107 language should have been used and
would have been used which would leave no room for doubt as to its meaning, and
would make clearly manifest the object intended.”
This approach, read with the plain meaning rule of statutory interpretation
(i.e., that an instrument should, as a first rule, be read in accordance with the plain
meaning that its words import)108cannot but lead us to the conclusion that the
Risos-Vidal’s “third Whereas Clause” objection should be thrown out for lack of
merit.
B.3(b)(ii) The Vox Populi Line of Cases.
The second approach is to accept that such doubt cannot be resolved within
the four corners of the written pardon and resort should be taken to the external
surrounding circumstances that followed the grant and the interests involved (i.e.,
protection of the interests of the electorate and the recognition of vox populi), as
already discussed above and supplemented by the rulings below.
In the Fernandez v. House of Representatives Electoral Tribunal109 line of cases
involving the issue of ineligibility based on the residency requirements, that Court
declared that it must exercise utmost caution before disqualifying a
_______________
107 An Act Providing for the Diminution of Sentences Imposed Upon
Prisoners Convicted of Any Offense and Sentenced for a Definite Term of More
than Thirty Days and Less than Life in Consideration of Good Conduct and
Diligence.
108 Bolos v. Bolos, G.R. No. 186400, October 20, 2010, 634 SCRA 429, 437.
109 G. R. No. 187478, December 21, 2009, 608 SCRA 733, 753.
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winning candidate, shown to be the clear choice of the constituents to
represent them in Congress.
Citing Frivaldo v. COMELEC,110 the Court held that time and again it has
liberally and equitably construed the electoral laws of our country to give
fullest effect to the manifest will of our people, for in case of doubt,
political laws must be interpreted to give life and spirit to the popular
mandate freely expressed through the ballot. Otherwise stated, legal niceties
and technicalities cannot stand in the way of the sovereign will.
Furthermore, to successfully challenge a winning candidate’s
qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to
the apparent will of the people, would ultimately create greater prejudice
to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote.
Another significant ruling to consider is Malabaguio v. COMELEC, et
al.111 involving the appreciation of ballots, the Court, citing its ruling in Alberto v.
COMELEC,112 declared that election cases involve public interest; thus, laws
governing election contests must be liberally construed to the end that the
will of the people in the choice of public officials may not be defeated by
mere technical objections.
The Court further reiterated in Maruhom v. COMELEC, et al.113its ruling that
the question really boils down to a choice
_______________
110 G.R. No. 120295, June 28, 1996, 257 SCRA 727, 770-771.
111 400 Phil. 551, 567; 346 SCRA 699, 712 (2000).
112 G.R. No. 132242, July 27, 1999, 311 SCRA 215, 222; See also Punzalan v.
COMELEC, G.R. No. 126669, April 27, 1998, 289 SCRA 702, 720.
113 387 Phil. 491, 516; 331 SCRA 473, 494-495 (2000).
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of philosophy and perception of how to interpret and apply the laws relating to
elections; literal or liberal; the letter or the spirit; the naked provision or the
ultimate purpose; legal syllogism or substantial justice; in isolation or in context
of social conditions; harshly against or gently in favor of the voter’s obvious
choice. In applying election laws, it would be far better to err in favor of
popular sovereignty than to be right in complex but little understood
legalisms.
In Rulloda v. COMELEC, et al.114 involving substitution of candidates, the
Court ruled that the purpose of election laws is to give effect to, rather than
frustrate, the will of the voters. It is a solemn duty to uphold the clear and
unmistakable mandate of the people. It is well-settled that in case of doubt,
political laws must be so construed as to give life and spirit to the popular mandate
freely expressed through the ballot.
Technicalities and procedural niceties in election cases should not be made to
stand in the way of the true will of the electorate. Laws governing election contests
must be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections. 115
Election contests involve public interest, and technicalities and procedural
barriers must yield if they constitute an obstacle to the determination of the true
will of the electorate in the choice of their elective officials. The Court frowns upon
any interpretation of the law that would hinder in any way not only the free and
intelligent casting of the votes in an election but also the correct ascertainment of
the results.116
These rulings, applicable in a situation of doubt yields the conclusion that the
doubt, if any, in the present case should be resolved in Erap’s favor.
_______________
114 443 Phil. 649, 654-655; 395 SCRA 535, 540 (2003).
115 Id.
116 Id.
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B.4. Conclusions on Pardon and Grave Abuse of Discretion.
In the light of all the above arguments on pardon and the refutation of the
positions of the petitioner Risos-Vidal, I submit to the Court that under the Rule
65 standard of review discussed above, no compelling reason exists to conclude
that the COMELEC committed grave abuse of discretion in ruling on the pardon
aspect of the case.
No grave abuse of discretion could have been committed as the COMELEC was
correct in its substantive considerations and conclusions. As outlined above, Erap
indeed earned the right to vote and to be voted for from the pardon that PGMA
granted him. It is the only reasonable and logical conclusion that can be reached
under the circumstances of the case.
 C.
The Objections Relating to the 2010 COMELEC Rulings in the
Disqualification Trilogy.
As I previously discussed, despite the ponencia’s resolution that the
COMELEC did not gravely abuse its discretion in ruling on the issue of Erap’s
pardon, another crucial issue to be resolved is whether or not the COMELEC
gravely abused its discretion in relying on its 2010 rulings in dismissing the Risos-
Vidal petition.
This issue must be resolved in the present case as the assailed COMELEC
rulings did not rule specifically on the issue of Erap’s pardon but resolved instead
that the issue of Erap’s pardon is already a previously “settled matter,” referring
to the consolidated COMELEC Rulings in SPA No. 09-028 (DC) and SPA No. 09-
104 (DC), entitled Atty. Evilio C. Pormento v. Joseph Ejercito Estrada and In Re:
Petition to Disqualify Estrada Ejercito, Joseph M. From Running As President Due
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to Constitutional Disqualification and Creating Confusion to the Prejudice of
Estrada, Mary Lou B.
As I will discuss below, the COMELEC did not gravely abuse its discretion in
relying on its 2010 disqualification rulings in dismissing Risos-Vidal’s petition.
C.1. The Trilogy of Disqualification Cases in 2010.
As narrated above,117 Erap’s 2010 presidential candidacy gave rise to three
cases — the Pamatong, Pormento and Mary Lou Estrada cases — all aimed at
disqualifying him. The COMELEC duly ruled in all these cases. If the effects of
these rulings have been muddled at all in the understanding of some, the confusion
might have been due to the failure to look at the whole 2010 disqualification scene
and to see how these trilogy of disqualification cases interacted with one another.
The three cases, appropriately given their respective docket numbers, were
heard at the same time. While they were essentially based on the same grounds
(hence, the description trilogy or a series of three cases that are closely related
under a single theme — the disqualification of Erap), only the Pormento and Mary
Lou Estradacases were formally consolidated; the Pamatong case, the first of the
cases, was not included because Pamatong also sought the disqualification from
public office of PGMA on the ground that she is also constitutionally barred from
being reelected.
Petitioner Pamatong expressly put in issue Erap’s fitness to be a candidate
based on his previous conviction for plunder and the terms of the pardon extended
him by PGMA; the COMELEC, for its part, directly ruled on the matter. To quote
the relevant portions of the COMELEC Resolution in Pamatong:118
_______________
117 See pp. 283-287.
118 See page 8 of the COMELEC, Second Division Resolution dated January
20, 2010 in SPA No. 09-024(DC) entitled Rev. Elly
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On December 28, 2009, Petitioner Pamatong submitted his Position Paper on
Joseph E. Estrada and Gloria M. Arroyo, asking the questions: Are they above the
law? The Petitioner Pamatong took the absolutist point of view that former
President Joseph Ejercito Estrada is banned forever from seeking the same
position of President of the Republic having been previously elected as such
President. He also espoused the idea that Respondent Gloria Macapagal Arroyo as
the sitting President is forever banned from seeking any other elective office,
including a post such as member of the House of Representatives.
xxxx
Furthermore, Petitioner maintains that the pardon granted Estrada
was conditioned on his promise not to run for any public office again. It
was not a full pardon but was a conditional one. The exercise of executive
clemency was premised on the condition that former President Estrada should not
run again for Office of the President of the Philippines or for any other public
office.119
xxxx
Furthermore, there is absolutely no indication that the executive
clemency exercised by President Gloria Arroyo to pardon Former President
Estrada was a mere conditional pardon. It clearly stated that the Former
President is “restored to his civil and political rights” and there is nothing
in the same which limits the restoration. The only thing stated therein that
may have some bearing on the supposed condition is that statement in the
whereas clause that contained the following: Whereas, Jo-
_______________
Velez B. Lao Pamatong, Esq v. Joseph Ejercito Estrada and Gloria Macapagal-
Arroyo. This Resolution was attached as Exhibit “4” to Annex “E” of the
Memorandum that Petitioner Risos-Vidal submitted to the Court.
119 Id.
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seph Estrada has publicly committed to no longer seek any elective
position or office, but that is not a condition but is merely part of the
preliminary statement. It cannot therefore serve to restrict the operation
of or prevail over the explicit statement in the executive clemency which
restored all of Estrada’s civil and political rights, including the “right to
vote and to be voted for public office” for the position of the Presidency.
This executive clemency granted to the former President being absolute
and unconditional and having been accepted by him, the same can no
longer be revoked.120 [Emphasis supplied]
 How the three cases exactly related to one another in terms of the issues posed
is described by the COMELEC in its consolidated Resolution in the cases
of Pormento and Mary Lou Estrada, as follows:121
However, as to the substantive aspect of the case, the Respondent’s Answer
basically raises and repleads the same defenses which were relied upon in SPA 09-
024, except for the additional ground that “the grant of executive clemency
removed all legal impediments that may bar his candidacy for the
Presidency.”122 These grounds consisted of:
(a) The “President” being alluded to under section 4 of Article VII of the 1987
Constitution refers to the incumbent President;
_______________
120 Id., at p. 22.
121 See pp. 5-6 of the COMELEC, Second Division Resolution on SPA No. 09-
028 (DC), attached as Annex “O” to Memorandum of Intervenor Lim.
122 The original grounds in SPA 09-024 as cited in Erap’s Answer in
Pamatong’s case did not include the issue of pardon which Pamatong later added
in his Position Paper.
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344 SUPREME COURT REPORTS ANNOTATED
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(b) The Prohibition does not apply to the person who merely serves a tenure
and not a complete term;
(c) Joseph Estrada is not running for reelection but is “running again” for the
same position of President of the Philippines;
(d) The Provisions of section 4 (1st par), Article VII of the 1987 Constitution is
clear, unequivocal and unambiguous; hence not subject to any interpretation;
(e) The evil sought to be prevented is directed against the incumbent President;
(f) The sovereignty of the people should be paramount; and
(g) The grant of executive clemency removed all legal impediments
that may bar his candidacy for the presidency. [Emphasis supplied]
As arranged during the COMELEC’s common hearing on the trilogy, separate
decisions were rendered simultaneously.123 They all touched on the issue of
pardon.
As likewise already explained above, all three cases became final, executory
and unappealable five (5) days after its promulgation, pursuant to Section 3, Rule
37 of the COMELEC Rules of Procedure.124 Since all the petitioners filed their
respective motions for reconsideration, finality was reckoned from the denial of
these motions.
_______________
123 Supra notes 2 at p. 7 and 4 at pp. 7-8.
124 Section 3, Rule 37 of the COMELEC Rules of Procedure states:
Decisions Final After Five Days.—Decisions in pre-proclamation cases and
petitions to deny due course to or cancel certificates of candidacy, to declare a
candidate as nuisance candidate or to disqualify a candidate, and to postpone or
suspend elections shall become final and executory after the lapse of five (5) days
from their promulgation, unless restrained by the Supreme Court.
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Of the three, petitioner Pormento went one step further to assail the final
COMELEC ruling before this Court. His effort did not bear fruitful result as the
Court dismissed his petition for mootness — when the Court issued its ruling, Erap
had lost the 2013 presidential elections.
In the dismissal of the Pormento petition before this Court [G.R. No. 191188],
a nagging issue that has left some uncertainty is the effect of the dismissal on the
COMELEC’s Pormento ruling. This assailed COMELEC resolution tackled two
issues: 1) the constitutional prohibition on reelection; and 2) the nature of Erap’s
pardon and its effect on his qualification to run for an elective public office or as
President.
The Court, however, in dismissing the case, focused its discussions solely on
the issue of the constitutional ban on reelection and ruled that this issue had been
rendered moot by the supervening event of Erap’s loss in the 2010 elections; the
Court did not discuss or even mention the issue of whether the COMELEC gravely
abused its discretion in ruling that Erap’s pardon was absolute and had restored
his right to run for the Presidency.
In this situation, the assailed COMELEC ruling simply becomes, not only final
and executory, but unassailable. No appeal is available as an appeal is barred by
the Constitution.125 No petition for certiorari is likewise available unless another
petition had been filed within the period for filing allowed by the Rules of
Court.126 Thus, the COMELEC rulings
_______________
125 Section A(7), Article IX, 1987 Constitution.
126 Id., and Section 3, Rule 64 which provides that the petition
for certiorari shall be filed within thirty (30) days from notice of the judgment or
final order or resolution sought to be reviewed. The filing of a motion for new trial
or reconsideration of said judgment or final order or resolution, if allowed under
the procedural rules of the Commission concerned, shall interrupt the period
herein fixed. If the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than five (5) days in any
event, reckoned from notice of denial.
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346 SUPREME COURT REPORTS ANNOTATED
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on the trilogy of disqualification cases fully stand, enforceable according to
their terms. From the perspective of the Court, no enforceable ruling was made
nor any principle of law established. In other words, the final ruling to be reckoned
with in any future dispute is effectively the COMELEC ruling.
C.2. The Risos-Vidal Petition and its Objections against Erap’s Status.
C.2(a) The Objections and its Fallacies.

The Risos-Vidal petition, fully supported by J. Leonen, objects to the binding
effect of the 2010 disqualification trilogy decisions, on the claim that res
judicata did not apply because pardon was not an issue ruled upon in 2010.
This may have partly stemmed from the statement of issues in the 2010
COMELEC Resolution in Pormento defining the issues common to Pormento
and Mary Lou Estrada, disregarding the incidents that transpired in the trilogy
and the issues that Erap raised in his Answer.127 Another source of confusion
perhaps was the fact that the COMELEC, in ruling on the 2013 Risos-Vidal
petition, only cited the Pormento and Mary Lou Estrada cases.
The objections, in my view, do not take into account the sequence of events in
2010 on the filing of the disqualification cases, the relationship of the
disqualification cases with one another, the law on the finality and binding
effect of rulings, and the reason for the COMELEC’s citation of the
Pormento and Mary Lou Estradarulings in the subsequent 2013 Risos-Vidal
petition.
In Pamatong, Pamatong raised this issue in his Position Paper. Thus,
pardon was an issue raised and ruled
_______________
127 See pp. 5-6 of the COMELEC, Second Division Resolution on SPA No. 09-
028 (DC), attached as Annex “O” to Memorandum of Intervenor Lim.
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upon. The same process took place in the subsequent consolidated cases
of Pormento and Mary Lou Estrada, so that the COMELEC itself, in its resolution
of these cases, recognized that pardon was one of the issues that Erap raised and
accordingly ruled on the matter. Significantly, the COMELEC rulings on the
matter of pardon in all three cases practically carried the same wording,
revealing the COMELEC’s view that the cases constituted a trilogy that posed
practically the same issues, one of which is the pardon of Erap.
C.2(b) Res Judicata and its Application to the Case.
The COMELEC Second Division, in dismissing the Risos-Vidal disqualification
petition against Erap, emphasized that the issue of whether Erap’s pardon allowed
him to run for office had already been fully discussed in previous cases, and no
longer needed reexamination. The COMELEC additionally pointed out that
petitioner Risos-Vidal failed to provide sufficient reason to reverse its prior
decision.
J. Leonen noted that this Court is not barred by res judicata from revisiting
the issue of Erap’s pardon; we can review the COMELEC’s decision because there
is neither identity of the parties, of subject matters, and of causes of action in the
previous disqualification cases. J. Leonen also pointed out that the Court had not
ruled with finality on the issue of Erap’s pardon in Pormento, because supervening
events had rendered the case moot.
I disagree with J. Leonen. As I earlier pointed out, we must review the
COMELEC’s decision using the standard of grave abuse of discretion: we nullify
the COMELEC ruling if it gravely abused its discretion in ruling on the present
case; if no grave abuse of discretion existed, the Risos-Vidal petition should be
dismissed instead of being granted.
As I will proceed to discuss below, the COMELEC did not gravely abuse its
discretion when it ruled in the pre-
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348 SUPREME COURT REPORTS ANNOTATED
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sent case that Erap’s pardon qualified him to run for an elective public
office and that this issue is a previously “settled matter.”128 I say this
because the principle of res judicata, under either of its two modes
— conclusiveness of judgment or bar by prior judgment — applies in the
present case.
Res judicata embraces two concepts: first, the bar by prior judgment under
Rule 39, Section 47(b) of the Rules of Court; and second, the preclusion of a settled
issue or conclusiveness of judgment under Rule 39, Section 47(c) of the Rules of
Court. The COMELEC’s 2010 decision resolving whether Erap’s pardon allowed
him to run for elections precludes further discussion of the very same issue in the
2013 petition filed against his candidacy.
Under our review in the present case that is limited to the determination of
grave abuse of discretion and not legal error, I cannot agree with J. Leonen’s strict
application of the requisites of bar by prior judgment. Jurisprudence has clarified
that res judicatadoes not require absolute identity, but merely substantial
identity. This consideration, under a grave abuse standard of review, leads me to
the conclusion that we cannot reverse the COMELEC’s decision to apply res
judicata, even if it meant the application of the concept of bar by prior judgment.
C.2(b)(i) Issue preclusion or res judicata by conclusiveness of
judgment.
Issue preclusion (or conclusiveness of judgment) prevents the same parties
and their privies from reopening an issue that has already been decided in a prior
case. In other words, once a right, fact, or matter in issue has been directly
_______________
128 See page 2 of the COMELEC’s Resolution dated April 1, 2013 in SPA 13-
211 (DC) entitled Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada.
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adjudicated or necessarily involved in the determination of an action, it is
conclusively settled and cannot again be litigated between the parties and their
privies, regardless of whether or not the claim, demand, or subject matter of the
two actions are the same.
For conclusiveness of judgment to apply, the second case should
have identical parties as the first case, which must have been settled by final
judgment. It does not, unlike the bar by previous judgment, need identity of
subject matter and causes of action.
Note at this point, that Rule 37, Section 3 of the COMELEC Rules of Procedure
renders the COMELEC’s decision final and executory within five days after its
promulgation, unless otherwise restrained by the Court. Neither of the two
COMELEC decisions involving Erap’s disqualification in 2010 had been restrained
by the Court; suffice it to say that the five-day period after promulgation of the
decisions in these cases had long passed.
Thus, the COMELEC did not err in considering its decisions in these cases —
all of which resolved the character of Erap’s pardon on the merits — to be final
and executory. That the Court refused to give due course to Pormento’s petition
assailing the COMELEC decision on the ground that its issues had been rendered
moot by the 2010 elections, did not make the COMELEC’s decision any less final.
In fact, Pormento was already final when it reached the Court, subject to the
Court’s authority to order its nullification if grave abuse of discretion had
intervened.
On the requirement of identity of parties, Erap was the defendant in all four
cases. While the petitioners in these cases were not the same persons, all of them
represented the same interest as citizens of voting age filing their petitions to
ensure that Erap, an election candidate, is declared not qualified to run and hold
office. Notably, Rule 25, Section 2 of the
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350 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
COMELEC Rules of Procedure129 requires a prospective petitioner to be a
citizen of voting age, or a duly registered political party, to file a petition for
disqualification, regardless of the position the candidate sought to be disqualified
aspires for.
We have had, in several instances, applied res judicata to subsequent cases
whose parties were not absolutely identical, but substantially identical in
terms of the interests they represent.130The cases filed against Erap’s candidacy in
the 2010 elections and in the 2013 elections share substantially the common
interest of disqualifying Erap as a candidate; these petitioners also all contended
that Erap was not qualified to be a candidate because of his previous conviction of
plunder.
That the 2010 cases involved Erap’s bid for reelection for presidency and the
2013 cases revolved around his mayoralty bid is not, in my view, relevant for
purposes of applying collateral estoppel because the identity of the causes of action
or the subject matters are not necessary to preclude an issue already litigated and
decided on the merits in a prior case. What is crucial for collateral estoppel to apply
to the second case is the identity of the issues between the two cases, which
had already been decided on the merits in the first case. All the cases seeking to
disqualify Erap from running hinged on his previous conviction and on arguments
characterizing his subsequent pardon to be merely conditional.
_______________
129 Sec. 2. Who May File Petition for Disqualification.—Any citizen of
voting age, or duly registered political party, organization or coalition of
political parties may file with the Law Department of the Commission a petition
to disqualify a candidate on grounds provided by law.
130 See Layos v. Fil-Estate Golf and Development, Inc., 583 Phil. 72, 106; 561
SCRA 75, 106-107 (2008); Valencia v. RTC Quezon City, Branch 90, 262 Phil. 938,
947-948; 184 SCRA 80, 91 (1990).
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The COMELEC had already decided this issue, not once, but twice when it
separately but simultaneously decided Pamatong’s petition and the consolidated
petitions of Pormento and Estrada. In these cases, it gave the petitioners
Pamatong, Pormento and Estrada ample opportunity to present their arguments
regarding the nature of Erap’s pardon, to which Erap had also been allowed to
reply. After considering their arguments, the COMELEC issued its resolutions
that the absolute nature of Erap’s pardon restored both his right to vote and be
voted for.
C.2(b)(ii) Res judicata through bar by prior judgment.
Res judicata, by way of bar by prior judgment, binds the parties to a case, as
well as their privies to its judgment, and prevents them from re-litigating the same
cause of action in another case. Otherwise put, the judgment or decree of the court
of competent jurisdiction on the merits concludes the litigation between the
parties, as well as their privies, and constitutes a bar to a new action or suit
involving the same cause of action before the same or other tribunal.
Res judicata through bar by prior judgment requires (a) that the former
judgment be final; (b) that the judgment was rendered by a court of competent
jurisdiction; (c) that it is a judgment on the merits; and (d) that, between the first
and the second actions, there is identity of parties, subject matters, and causes of
action.
These requisites were complied with in the present case.
C.2(b)(ii)(a) COMELEC as Tribunal of Competent Jurisdiction.
That the COMELEC is a tribunal of competent jurisdiction in cancellation of
CoC and candidate disqualification cases is
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352 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
mandated by the Constitution no less. Section 2(2), Article IX(C) of the
Constitution provides that:
Section 2. The Commission on Elections shall exercise the following
powers and functions:
xxxx
2. Exercise exclusive original jurisdiction over all contests relating
tothe elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests
involving elective municipal officials decided by trial courts of general
jurisdiction, or involving elective barangay officials decided by trial
courts of limited jurisdiction. [Emphasis and underscoring supplied]
Thus, the competence of the COMELEC to rule on these cases at the first
instance needs no further elaboration.
C.2(b)(ii)(b) Finality of the 2010 Disqualification Rulings.
Some aspects of finality of the disqualification trilogy rulings have been
discussed above131 in terms of when COMELEC judgments become final and the
recourses available to assail these judgments. But separately from these questions
is the question of the effects of the finality of judgments.
Once a judgment attains finality, it becomes immutable and unalterable. It
may not be changed, altered or modified in any way even if the modification is for
the purpose of correcting an erroneous conclusion of fact or law. This is
the “doctrine of finality of judgments” which binds the immediate parties
and their privies in personal judgments; the
_______________
131 See p. 284.
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whole world in judgments in rem; and even the highest court of the
land as to their binding effect.132
This doctrine is grounded on fundamental considerations of public policy and
sound practice and that, at the risk of occasional errors, the judgments or orders
of courts must become final at some definite time fixed by law; otherwise, there
would be no end to litigations, thus setting to naught the main role of courts, which
is, to assist in the enforcement of the rule of law and the maintenance of peace and
order by settling justiciable controversies with finality.133
A final judgment vests in the prevailing party a right recognized and protected
by law under the due process clause of the Constitution. A final judgment is a
vested interest and it is only proper and equitable that the government should
recognize and protect this right. Furthermore, an individual cannot be deprived of
this right arbitrarily without causing injustice.134
Just as the losing party has the right to file an appeal within the prescribed
period, the winning party also has the correlative right to enjoy the finality of the
resolution of his case.135
In the present case, the COMELEC’s final rulings in
the Pamatong, Pormento and Mary Lou Estrada petitions had been made
executory through the inclusion of Erap as a candidate not only as a President in
the 2010 elections but as Mayor in the 2013 elections.
Thus, the COMELEC’s 2010 final ruling in Pamatong and Pormento had been
made executory twice not only with respect to the interest of Erap, the winning
party, through the
_______________
132 GSIS v. Group Management Corp., G.R. No. 167000, June 8, 2011, 651
SCRA 279, 305.
133 Id.
134 Celendro v. Court of Appeals, 369 Phil. 1102, 1111; 310 SCRA 835, 844
(1999).
135 Id.
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354 SUPREME COURT REPORTS ANNOTATED
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inclusion of his name as a candidate, but more importantly, the public, by
allowing the electorate to vote for him as a presidential candidate in 2010 and as
a mayoralty candidate in 2013.
The difference of this case from the usual disqualification cases is that the 2010
unalterable COMELEC ruling on the Erap pardon involved the issue of his
political status binding on the whole world and has made his candidacy in the 2013
elections and other future elections valid and immune from another petition for
disqualification based on his conviction for plunder. This topic will be discussed at
length below.
C.2(b)(ii)(c) Judgment on the Merits.
A judgment is on the merits when it determines the rights and liabilities of the
parties based on the disclosed facts, irrespective of formal, technical or dilatory
objections.136
In Pamatong’s petition to cancel and deny due course to Estrada’s CoC 137 for
the position of President in the 2010 elections, the issue of pardon was clearly
raised and argued by the parties, resulting in the COMELEC resolution
quoted above, specifically ruling that the Erap pardon was absolute and
not conditional, entitling him the right to vote and to be voted upon. Not
being conditional simply meant that it was not based on Erap’s promise
not to run for any public office.138
In Pormento (which was consolidated with Mary Lou Estrada), the petitioner
likewise sought to prevent Estrada
_______________
136 Meralco v. Philippine Consumers Foundation, Inc., 425 Phil. 65, 79; 374
SCRA 262, 273-274 (2002).
137 SPA 09-24-DC.
138 Resolution of the COMELEC, Second Division dated January 20, 2010 in
SPA No. 09-024 (DC) [Pamatong petition]; p. 8 of the Resolution; attached as
Exhibit “4” to Annex “H” of the Petitioner’s Memorandum.
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from running as President in the 2010 elections. Estrada re-pleaded in his
answer the defenses that he raised in Pamatong and added the argument that the
grant of executive clemency in his favor removed all legal impediments
that may bar his candidacy for the presidency.139
 That pardon was not an issue specified by the COMELEC when it defined the
issues common to petitioners Pormento and Mary Lou Estrada is of no moment
since COMELEC only outlined the issues that petitioners Pormento and Mary Lou
Estrada commonly shared. The matter of pardon was raised as a defense by
Estrada and this was duly noted by the COMELEC in its resolution.140 Under
these circumstances, what assumes importance are the terms of the COMELEC
resolution itself which expressly discussed and ruled that the Erap pardon was
absolute and had the effect of restoring his right to vote and be voted upon.
In fact, even if petitioners Pormento and Mary Lou Estrada did not fully argue
the pardon issue that Erap raised, it must be appreciated that this issue was
indisputably fully argued, ruled upon and became final in Pamatong which
was one of the 2010 trilogy of disqualification cases. This finality could not but
have an effect on the Pormento and Mary Lou Estrada rulings which carried the
same rulings on pardon as Pamatong. The Pormento and Mary Lou
Estrada rulings on pardon, which themselves lapsed to finality can, at the very
least, be read as a recognition of the final judgment on the pardon in issue
in Pamatong, as well as the official final stand of COMELEC on the issue of the
Erap pardon.
_______________
139 COMELEC, Second Division Resolution dated January 20, 2010 in SPA
No. 09-028 (DC) [Pormento petition] and SPA No. 09-104 [Mary Lou Estrada
petition]; pp. 5-6 of the Resolution; attached as Annex “O” to Memorandum of
Intervenor Lim.
140 See pp. 5-6 of the COMELEC, Second Division Resolution on SPA No. 09-
028 (DC), attached as Annex “O” to Memorandum of Intervenor Lim.
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These antecedent proceedings, the parties’ arguments in their respective
pleadings, and the COMELEC rulings in Pamatong [SPA 09-24 (DC)] and
in Pormento [SPA 09-28] clearly show that the COMELEC rulings in these cases
on the issue of pardon were decisions on the merits that can be cited as authorities
in future cases.
C.2(b)(ii)(d) Identity of Parties, Subject Matter and Cause of Action.
1. Identity of parties
Two kinds of judgments exist with respect to the parties to the case.
The first are the parties in proceedings in personam where the judgments are
enforceable only between the parties and their successors in interests, but not
against strangers thereto. The second type are the judgments in proceedings
where the object of the suit is to bar indifferently all who might be minded to make
an objection of any sort against the right sought to be established, and anyone in
the world who has a right to be heard on the strength of alleged facts which, if true,
show an inconsistent interest; the proceeding is in rem and the judgment is a
judgment in rem.141
This rule is embodied under Section 47, Rule 39 which provides the effect of a
judgment or final order rendered by a court of the Philippines, having jurisdiction
to pronounce the judgment or final order. In paragraph 47(a), the rules provide
that in case of a judgment or final order x x x in respect to the
personal, political, or legal condition or status of a particular person or
his relationship to another, the judgment or final order is conclusive
upon the title to the thing, the will or administration or the condition, status or
relationship of the person x x x.142
_______________
141 Feria and Noche, Civil Procedure Annotated, Vol. II, p. 270.
142 PCI Leasing and Finance, Inc. v. Dai, 560 Phil. 84, 94-95; 533 SCRA 611,
620 (2007).
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In the present case, the 2010 COMELEC final rulings that Erap was qualified
to run for public office, after consideration of the issues of presidential reelection
and the effect of his pardon for the crime of plunder, constituted a judgment in
rem as it was a judgment or final order on the political status of Erap to
run for and to hold public office.
In other words, a declaration of the disqualification or qualification of a
candidate binds the whole world as the final ruling of the COMELEC regarding
Erap’s perpetual absolute disqualification and pardon had already become
conclusive. The 2010 final rulings of the COMELEC thus bar Risos-Vidal in 2013
from raising the same issue in view of the nature of the 2010 rulings as
judgments in rem.
I also reiterate my previous discussion that in determining whether res
judicata exists, the Court had previously ruled that absolute identity of parties is
not required but substantial identity, such that the parties in the first and second
cases share the same or a community of interest. As discussed above, this requisite
is present in the 2010 disqualification cases and the present Risos-Vidal case.
2. Identity of causes of action and subject matters
I discuss first the element of identity of causes of action because, in the process,
the element of identity of subject matters would be likewise covered. On the
element of identity of causes of action between the first and second cases, J.
Leonen asserts that the 2010 disqualification cases filed by Pormento and Mary
Lou Estrada were based on causes of action that were different from those in the
present case.
According to J. Leonen, the 2010 cases were anchored on the constitutional
prohibition against a president’s reelection and the additional ground that Erap
was a nuisance candidate. The present case is anchored on Erap’s conviction for
plunder which carried with it the accessory penalty of perpetual absolute
disqualification. The present case is additionally
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358 SUPREME COURT REPORTS ANNOTATED
 Risos-Vidal vs. Commission on Elections
based on Section 40 of the LGC as well as Section 12 of the OEC. This is clear
from the COMELEC’s recital of issues.143
I disagree with J. Leonen’s positions and short-sighted view of the issues and
I maintain that there are identical subject matters and causes of actions, especially
for purposes of complying with the requirements of res judicata by way of bar by
prior judgment.
At this juncture, I reiterate my disagreement with J. Leonen in strictly
applying the requisites for the application of res judicata through bar by prior
judgment. The Court itself, in numerous cases, did not strictly apply the
requirement that there must be absolute identity of causes of action. In fact, the
Court’s rulings on this particular element leaned towards substantial identity of
causes of action and its determination is arrived at not on the basis of the facial
value of the cases but after an in-depth analysis of each case.
The reason why substantial identity of causes of action is permitted is to
preclude a situation where a party could easily escape the operation of res
judicata by changing the form of the action or the relief sought. The difference in
form and nature of the two actions is also immaterial and is not a reason to exempt
these cases from the effects of res judicata.
The philosophy behind this rule prohibits the parties from litigating the same
issue more than once. When a right or fact has been judicially tried and
determined by a court of competent jurisdiction or an opportunity for
such trial has been given, the judgment of the court, as long as it remains
unreversed, should be conclusive upon the parties and those in privity with
them. In this way, there should be an end to litigation by the same parties and
their privies over a subject, once the issue involving the subject is fully and fairly
adjudicated.144
_______________
143 Id.
144 Pilar Development Corporation v. Court of Appeals, G.R. No. 155943,
August 28, 2013, 704 SCRA 403.
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In light of the jurisprudence on res judicata by way of bar by prior judgment,
it is my view that the COMELEC did not gravely abuse its discretion in ruling that
the issue of Erap’s pardon and its effects on his right to run for elective public office
had already been settled in the 2010 disqualification cases.
In our jurisdiction, the Court uses various tests in determining whether or not
there is identity of causes of action in the first and second cases. One of these tests
is the “absence of inconsistency test” where it is determined whether or not the
judgment sought will be inconsistent with the prior judgment. If inconsistency is
not shown, the prior judgment shall not constitute a bar to subsequent actions.145
The second and more common approach in ascertaining identity of causes of
action is the “same evidence test,” where the criterion is determined by the
question: “would the same evidence support and establish both the present
and former causes of action?” If the answer is in the affirmative, then the prior
judgment is a bar to the subsequent action; conversely, it is not.146
Applying these tests, it is readily apparent that there were identical causes of
action in the 2010 disqualification cases against Erap and the present Risos-Vidal
case.
Using the absence of inconsistency test, the 2010 final COMELEC rulings
that Erap was qualified to run for Presidency, an elective public office, would be
inconsistent with the ruling being sought in the present case which is, essentially,
that Erap’s pardon did not remove his perpetual absolute disqualification to run
for elective public office, this time as Mayor of the City of Manila.
_______________
145 Antonio v. Vda. de Monje, G.R. No. 149624, September 29, 2010, 631
SCRA 471, 482.
146 Id.
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In short, Erap’s pardon and its effects on his perpetual absolute
disqualification brought about by his conviction affect his qualification to run
for all elective public offices. Thus the 2010 rulings cannot be limited or linked
only to the issue of his qualification to run as President of the Philippines but to
any elective public position that he may aspire for in the future.
Applying the “same evidence test,” suffice it to say that the Risos-Vidal’s
petition rests and falls on Erap’s pardon and its effects on his qualification to run
for elective public office. Erap’s pardon is the same evidence necessary for the
COMELEC to resolve in the 2010 disqualification cases the issue of whether or not
Erap’s pardon removed his disqualification to run for elective public office, thus
qualifying him to run for Presidency.
It must be recalled that Risos-Vidal relies on Section 40147 of the LGC and
Section 12148 of the OEC, specifically relating
_______________
147 Section 40. Disqualifications.—The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence.
xxxx
148 Sec. 12. Disqualifications.—Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion or for any offense for which
he has been sentenced to a penalty of more than eighteen months or for
a crime involving moral turpitude, shall be disqualified to be a candidate
and to hold any office, unless he has been given plenary pardon or
granted amnesty.
This disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sen-
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to the disqualification ground of a person’s conviction for a crime involving
moral turpitude, in this case, plunder. However, if we are to look closely at these
provisions,149 Erap would not have been disqualified under these provisions
because he had already served the 2-year prohibitive period under Section 40 of
the LGC.150 The real main issue of the Risos-Vidal petition is the perpetual
absolute disqualification imposed on Erap as an accessory penalty for his
conviction for a crime involving moral turpitude; and that his pardon did not remit
this disqualification. This issue was obviously directly ruled upon by the
COMELEC in the 2010 disqualification cases. Hence, applying the same evidence
test, there is identity of causes of action between the 2010 and the Risos-Vidal
cases. There was likewise identity of subject matters, specifically the qualification
of Erap to run for public office in relation to his pardon.
As a side note, I observe that in the 2010 cases, had the COMELEC ruled that
Erap had been disqualified to run for elective public office despite his pardon, the
issue of the constitutional ban against his reelection would have become moot and
academic as Erap would never be qualified in the first place to run for an elective
office. Therefore, the ground for Erap’s disqualification based on his perpetual
absolute disqualification in relation to his pardon, which were raised by the parties
in 2010, were material and necessary for the resolution of the reelection issue.
Otherwise, to simply disregard the pardon issue and proceed immediately to the
issue on the constitutional ban on reelection is not only absurd but would have
been the height of legal ignorance. Fortunately, the
_______________
tence, unless within the same period he again becomes disqualified.
149 Id.
150 See Magno v. COMELEC, 439 Phil. 339, 347-348; 390 SCRA 495, 498
(2002) where the Court held that the 2-year prohibitive period under the LGC
prevails over the 5-year prohibitive period under Section 12 of the OEC.
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Risos-Vidal vs. Commission on Elections
COMELEC correctly ruled on the pardon issue directly and did not gravely
abuse its discretion in doing so.
Since the COMELEC had already decided the issue of Erap’s pardon in
the past, it did not act with grave abuse of discretion when it chose not to
reverse its prior rulings. Its past decisions, which became final and executory,
addressed this issue on the merits. This, and the substantial causes of action,
subject matters, and substantial identity of the parties in the 2010 and 2013 cases,
sufficiently justified the COMELEC from keeping the discussion of the issue of
Erap’s pardon in the 2013 disqualification case.
3. Grave Abuse of Discretion, the 2010 Disqualification Trilogy, and
COMELEC’s Risos-Vidal Ruling.
In light of the above discussions, the COMELEC did not gravely abuse its
discretion in its Resolution of April 1, 2013 dismissing the Risos-Vidal petition for
lack of merit. In fact, the COMELEC would have gravely abused its discretion had
it granted the petition in light of the 2010 trilogy of disqualification cases and the
finality of its previous final rulings that the third Whereas Clause of Erap’s pardon
did not affect at all the restoration of his civil and political rights, including his
right to vote and to be voted upon.
Whatever might be said of the trilogy of cases, the reality is that the issue of
pardon was brought to the forefront of the argued issues when the parties raised
it in all the disqualification cases against Erap and the COMELEC ruled on the
issue. That the pardon issue was overshadowed by the presidential reelection
issue, not only in the COMELEC, but all the way to this Court, may be an
adjudicatory defect, but certainly is not imperfection on the part of Erap for which
he should suffer.
To be sure, the COMELEC resolution is not a model resolution that is free from
imperfections; it cannot serve as a model for legal drafting or for legal reasoning.
But whatever these
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imperfections might be, they could not — as above explained — have gone
beyond errors of law, into grave abuse of discretion. Having been rulings twice
implemented in 2010 and 2013 elections, these past rulings cannot and should not
now be repudiated without committing fraud against the electorate who cast their
vote and showed their preference for Erap without any notice that their votes ran
the risk of being declared stray.
For all the above reasons, I vote to dismiss the Risos-Vidal petition for lack of
merit.
CONCURRING OPINION
MENDOZA, J.:
At first glance, this case presents itself as an ordinary election case involving
the issue of who is the rightful winner in the 2013 mayoralty elections in the City
of Manila. The matter, however, is engrossed in a deeper constitutional conundrum
that affects the exercise of one of the most benevolent powers of the President —
the power to extend executive clemency in the form of pardon. Undoubtedly, the
Court’s ruling on this case would shape the parameters surrounding the future
exercise of the said power, thus, requiring a pragmatic stance that would equal the
theoretical and practical purpose of the pardoning power, that is, the realization
of checks and balances in government and the relief given to the pardonee.
The undisputed facts as culled from the records:
In its September 12, 2007 Decision, the Sandiganbayanconvicted respondent
former President Joseph Ejercito Estrada (Estrada) of plunder. The fallo of the
decision reads:
 WHEREFORE, in view of all the foregoing, judgment is hereby rendered in
Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito
Estrada, GUILTY beyond reasonable doubt of the crime
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364 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
of PLUNDER, defined in and penalized by Republic Act No. 7080, as amended.
On the other hand, for failure of the prosecution to prove and establish their guilt
beyond reasonable doubt, the Court finds the accused Jose “Jinggoy” Estrada and
Atty. Edward S. Serapio NOT GUILTY of the crime of plunder and, accordingly,
the Court hereby orders their ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No. 7080,
as amended by Republic Act No. 7659, is Reclusion Perpetua to Death. There being
no aggravating or mitigating circumstances, however, the lesser penalty shall be
applied in accordance with Article 63 of the Revised Penal Code. Accordingly, the
accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer
the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction
during the period of sentence and perpetual absolute disqualification.
The period within which accused Former President Joseph Ejercito Estrada
has been under detention shall be credited to him in full as long as he agrees
voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended
by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the
government of the following:
(1) The total amount of Five Hundred Forty Two Million Seven Hundred
Ninety One Thousand Pesos (P545,291,000.00), with interest and income earned,
inclusive of the amount of Two Hundred Million Pesos (P200,000,000.00),
deposited in the name and account of the Erap Muslim Youth Foundation.
(2) The amount of One Hundred Eighty-Nine Million Pesos
(P189,000,000.00), inclusive of interests and income earned, deposited in the Jose
Velarde account.
(3) The real property consisting of a house and lot dubbed as Boracay
Mansion located at #100 11th Street, New Manila, Quezon City.
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The cash bonds posted by accused Jose Jinggoy Estrada and Atty. Edward S.
Serapio are hereby ordered cancelled and released to the said accused or their duly
authorized representatives upon presentation of the original receipt evidencing
payment thereof and subject to the usual accounting and auditing procedures.
Likewise, the hold departure orders issued against the said accused are hereby
recalled and declared functus oficio.
SO ORDERED.
On October 25, 2007, then President Gloria Macapagal-Arroyo (PGMA)
granted executive clemency to Estrada. The text of the said pardon is hereunder
replicated:
MALACAÑAN PALACE
MANILA
Whereas, this Administration has a policy of releasing inmates who have
reached the age of seventy (70),
Whereas, Joseph Ejercito Estrada has been under detention for six and a half
years,
Whereas, Joseph Ejercito Estrada has publicly committed to no longer seek
any elective position or office,
In view hereof and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to Joseph Ejercito Estrada,
convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion
perpetua. He is hereby restored to his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full,
including all writs and processes issued by the Sandiganbayan in pursuance
hereof, except for the bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this
pardon shall take effect.
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Risos-Vidal vs. Commission on Elections
Given under my hand at the City of Manila, this 25th day of October, in the
year of Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary
[Emphasis supplied]
The next day, Estrada accepted the pardon as evidenced by a handwritten
notation in the same document.
Subsequently, Estrada undertook his second bid for the presidency during the
2010 elections. This candidacy hurdled two (2) disqualification cases filed by Atty.
Evilio C. Pormento and Mary Lou B. Estrada (2010 disqualification cases), when
these were denied for lack of merit by the Commission on Elections (COMELEC),
Second Division, and the COMELEC En Banc in its respective resolutions, dated
January 20, 20101 and April 27, 2010.2The COMELEC was of the position that
Estrada was eligible to run for president on the ground that the constitutional
prohibition on reelection3 applies to an incumbent president.
 Upon elevation to the Court, however, the opportunity to resolve the said
constitutional issue was arrested by mootness, with Estrada having lost the
elections to President Benigno Aquino.4
Undaunted by his defeat in the race for national office, Estrada thereafter
sought the position of mayor in no less
_______________
1 Rollo, pp. 1009-1034.
2 Id., at pp. 1035-1054.
3 Section 4, Article VII, 1987 Constitution.
4 Pormento v. Estrada, G.R. No. 191988, August 31, 2010, 629 SCRA 530.
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than the City of Manila. He filed his certificate of candidacy on October 2, 2012.
Petitioner Atty. Alicia Risos-Vidal (petitioner) invoked Estrada’s
disqualification from running for public office, this time on the ground that his
candidacy was a violation of the pardon extended by PGMA. She filed a petition
for disqualification with the COMELEC5 pursuant to Section 12 of Batas
Pambansa Blg. 881 (Omnibus Election Code),6 grounded on a sole argument, viz.:
RESPONDENT IS DISQUALIFIED TO RUN FOR PUBLIC OFFICE
BECAUSE OF HIS CONVICTION FOR PLUNDER BY
THE SANDIGANBAYAN IN CRIMINAL CASE NO. 26558 ENTITLED
“PEOPLE OF THE PHILIPPINES V. JOSEPH EJERCITO ESTRADA”
SENTENCING HIM TO SUFFER THE PENALTY OF RECLUSION
PERPETUA WITH PERPETUAL ABSOLUTE DISQUALIFICATION.
In the main, the petitioner argued that Estrada was still suffering from the
accessory penalties of civil interdiction and perpetual disqualification because the
pardon granted to him failed to expressly restore his right to suffrage and to run
for public office as provided under Articles 36 and 41 of the Revised Penal Code.
Furthermore, the “whereas clause” in the pardon which stated that, “Joseph
Ejercito Estrada has publicly committed to no longer seek any elective position or
office” would indicate a condition that Estrada must abide by under pain of
recommitment to prison in the event of violation thereof. The petitioner likewise
finds support in the concurring opinion of Justice Padilla in Monsanto v. Factoran,
Jr.,7 stated in this wise:
_______________
5 Rollo, pp. 267-285.
6 Docketed as SPA No. 13-211 (DC).
7 252 Phil. 192, 206-207; 170 SCRA 190, 203 (1989).
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Risos-Vidal vs. Commission on Elections
An examination of the presidential pardon in question shows that, while
petitioner was granted “an absolute and unconditional pardon and restored to full
civil and political rights,” yet, nothing therein expressly provides that the right to
hold public office was thereby restored to the petitioner. In view of
the express exclusion by Art. 36, RPC of the right to hold public office,
notwithstanding a pardon unless the right is expressly restored by the pardon, it is
my considered opinion that, to the extent that the pardon granted to the petitioner
did not expressly restore the right to hold public office as an effect of such pardon,
that right must be kept away from the petitioner.
After an exchange of pleadings, the COMELEC Second Division issued its
April 1, 2013 Resolution dismissing the petition for lack of merit.8 The dismissal
was grounded on its resolution of the 2010 disqualification cases where it found
that the pardon granted to Estrada was absolute and unconditional, hence,
entitling him to run for public office. The dismissal was affirmed over petitioner’s
motion for reconsideration in the April 23, 2013 Resolution of the COMELEC En
Banc.9
Impervious to her cause, the petitioner comes to this Court, ascribing grave
abuse of discretion on the part of the COMELEC in declining to disqualify
Estrada motu propio, based on the following grounds cited by it: 1] the issues
raised in the petition have already been passed upon in the past; 2] Estrada’s
pardon was not conditional; 3] Estrada is not disqualified to run as mayor despite
Section 40 of the Local Government Code (LGC); and 4] Estrada’s pardon restored
his right to suffrage and remitted his perpetual disqualification from seeking
public office.
During the pendency of the petition, local elections were conducted on May 13,
2013, yielding a victory for Estrada
_______________
8 Rollo, pp. 39-46.
9 Id., at pp. 49-50.
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over his opponents including then incumbent Mayor Alfredo S. Lim (Lim).
Consequently, the latter moved to intervene in the petition, which was granted by
the Court in its June 25, 2013 Resolution.10 Lim supports petitioner’s theory that
Estrada remains to be disqualified to hold public office as his pardon did not
expressly remit his perpetual disqualification, and, pursuant to the Court’s ruling
in Jalosjos v. COMELEC,11 he must be declared as the rightful mayor of the City
of Manila.
After an exchange of pleadings,12 the parties were required to submit their
respective memoranda. The parties complied on different dates.13
To my mind, the following queries and premises, which are crafted in a clear-
cut and logical sequence, serve as guideposts for the Court in order to arrive at
conclusions that are consonant with prevailing law and jurisprudence:
I. Was the executive pardon extended to Estrada conditional or absolute?
II. What were the effects of the pardon, particularly the statement, “[h]e is
hereby restored to his civil and political rights?” Does this include the restoration
of his right to suffrage and to run for public office?
_______________
10 Id., at p. 438.
11 G.R. No. 193237, October 9, 2012, 683 SCRA 1.
12 Estrada filed his comment to Lim’s petition-in-intervention on July 15,
2013; the COMELEC, through the Office of the Solicitor General (OSG) filed its
consolidated comment on July 29, 2013; Estrada filed his comment to the petition
on August 6, 2013; Lim filed his reply to Estrada’s comment on August 23, 2013;
petitioner filed her reply to Estrada’s comment to the petition on August 27, 2013;
petitioner filed her reply to the COMELEC’s consolidated comment on December
13, 2013.
13 Lim on May 27, 2014; petitioner on June 2, 2014; Estrada on June 16, 2014
and the COMELEC on June 26, 2014.
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III. Given that the nature of pardon, whether absolute or conditional, does not
imply the automatic obliteration of the pardonee’s guilt, is Estrada qualified to run
for and hold a mayoralty position?
I. Estrada’s Pardon was Absolute
After admittedly having failed to argue on this before the COMELEC, the
petitioner expressly elevated this issue for the resolution of the Court. Her
insistence on the conditional nature of Estrada’s pardon is anchored on the latter’s
expressed acceptance of the same. In her words, this acceptance became “the
fundamental basis and indicium of the conditional nature of the pardon.”14 She
contends that had PGMA intended to issue an absolute pardon, she would have
not required Estrada’s acceptance thereof. Having accepted its terms with a
commitment of strict compliance, Estrada should be deemed to have breached the
“contract” when he ran for Mayor.
Amidst this argument, the primordial question continues to nag: was the
pardon bestowed on Estrada conditional or absolute? For the following reasons, I
find that Estrada’s pardon was absolute in nature:
First. I am of the view that the acceptance confers effectivity in both absolute
and conditional pardon.
Pardon is defined as “an act of grace, proceeding from the power entrusted with
the execution of the laws, which exempts the individual, on whom it is bestowed,
from the punishment the law inflicts for a crime he has committed. It is the private,
though official act of the executive magistrate, delivered to the individual for whose
benefit it is intended, and not communicated officially to the Court. ... A pardon is
a deed, to the validity of which
_______________
14 Rollo, p. 12.
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delivery is essential, and delivery is not complete without acceptance.”15
The fact of Estrada’s acceptance of the pardon, by affixing his signature
therein, is an insufficient indication of its conditional nature. Petitioner’s reliance
on Cabantag v. Wolf,16 where the Court ruled that a conditional pardon has no
force until accepted by the condemned because the condition may be less acceptable
to him than the original punishment and may in fact be more onerous, is
misplaced. It merely stated that a conditional pardon must be accepted in the
exercise of the pardonee’s right to choose whether to accept or reject the terms of
the pardon. It does not operate in the manner suggested by petitioner. It does not
work the other way around.
An “acceptance” does not classify a pardon as conditional just by the mere
reception and the placing of an inscription thereon. I am not prepared to ignore
the very intention and content of a pardon as standards to determine its nature,
as against the mere expediency of its delivery and acceptance. I am much more
amenable to the rule consistent with the benevolent nature of pardon: that it is an
act of forgiveness predicated on an admission of guilt. To be effective, therefore,
this admission of past wrongdoing must be manifested by the acceptance of a
pardon, absolute or conditional.
Further, the significance of “acceptance” is more apparent in cases of
“commutation,” which is the substitution of a lighter punishment for a heavier one.
William F. Duker elucidates:
Although for a pardon to be effective it usually must be accepted, commutation
is effective without acceptance. In Chapman v. Scott, the President granted a
commutation to “time-served” to a convict so that he would be available for
prosecution in a state court on a
_______________
15 Monsanto v. Factoran, Jr., supra note 7 at pp. 198-199; p. 196.
16 G.R. No. 3080, May 5, 1906.
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capital case. The convict refused the commutation and argued that it was not
effective until accepted, but the court held that a commutation did not require
acceptance:
Although power to commute is logically derivable from power to pardon,
commutation is essentially different from pardon. Pardon exempts from
punishment, bears no relation to term of punishment, and must be accepted, or it
is nugatory. Commutation merely substitutes lighter for heavier punishment. It
removes no stain, restores no civil privileges, and may be effected without the
consent and against the will of the prisoner.17
As applied to Estrada’s case, his acceptance of the pardon does not necessarily
negate its absolute nature. The more appropriate test to apply in the
determination of the subject pardon’s character is the grantor’s intention as
revealed in the four corners of the document.
 Second. The controversial perambulatory clause which states, “Whereas,
Joseph Ejercito Estrada has publicly committed to no longer seek any elective
position or office,” should not be considered as a restriction on Estrada’s pardon.
Primarily, rules on statutory construction provide that whereas clauses, do not
form part of a statute, strictly speaking; they are not part of the operative language
of the statute.18 While they may be helpful to the extent that they articulate the
general purpose or reason underlying a new enactment, reliance on whereas
clauses as aids in construing statutes is not justified when their interpretation
“control the specific terms of the statute.”19
_______________
17 William and Mary Law Review, The President’s Power to Pardon: A
Constitutional History by William F. Duker, Volume 18, Issue 3, Article 3.
18 Llamado v. Court of Appeals, 256 Phil. 328, 339; 174 SCRA 566, 576 (1989),
citing Yazoo & Mississippi Valley R. Co. v. Thomas, 132 US 174 (1889); 33 L Ed
302.
19 Llamado v. Court of Appeals, id.
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As applied in Estrada’s case, the subject whereas clause does not purport to
control or modify the unequivocal terms found in the pardon’s body. In this sense,
the “whereas clauses” in Estrada’s pardon cannot adversely affect the ultimate
command which it evokes, that is, executive clemency is granted to Estrada absent
any condition.
A conditional pardon basically imposes a condition. I take this to mean that it
must either stipulate a circumstance, a situation, or a requisite that must come
into pass or express a restriction that must not ensue. I find none in this case. The
plain language of the pardon extended to Estrada does not set forth any of these.
It was couched in a straightforward conferment of pardon, to wit:
I hereby grant executive clemency to Joseph Ejercito Estrada, convicted by
the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua.
Had PGMA intended to impress a condition on Estrada, the same would have
been clearly stated as a requirement of, or restriction to, the above conferment. I
am inclined to posit that the extension of a conditional pardon to her political rival
is a matter that PGMA would have regarded with solemnity and tact. After all, the
pardoning power is a pervasive means to bluntly overrule the force and effect, not
only of a court’s judgment of conviction, but the punitive aspect of criminal laws.
As it turned out, no direct showing suggests that the pardon was conditional.
For a condition to be operative, the condition must appear on the face of the
document. The conditions must be clear and specific. The reason is that the
conditions attached to a pardon should be definite and specific as to inform the
person pardoned of what would be required.20 As no condition was patently evinced
in the document, the Court is at no liberty to
_______________
20 Ex Parte Reno, 66 Mo. 266, 269 (Mo. 1877).
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374 SUPREME COURT REPORTS ANNOTATED
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shape one, only because the plain meaning of the pardon’s text is unacceptable
for some waylaid and extraneous reasons. That the executive clemency given to
Estrada was unaccompanied by any condition is clearly visible in the text of the
pardon. The Court must simply read the pardon as it is written. There is no
necessity to resort to construction. I choose to heed the warning enunciated
in Yangco v. Court of First Instance of Manila:
. . . [w]here language is plain, subtle refinements which tinge words so as to
give them the color of a particular judicial theory are not only unnecessary but
decidedly harmful. That which has caused so much confusion in the law, which has
made it so difficult for the public to understand and know what the law is with
respect to a given matter, is in considerable measure the unwarranted interference
by judicial tribunals with the English language as found in statutes and contracts,
cutting the words here and inserting them there, making them fit personal ideas
of what the legislature ought to have done or what parties should have agreed
upon, giving them meanings which they do not ordinarily have cutting, trimming,
fitting, changing and coloring until lawyers themselves are unable to advise their
clients as to the meaning of a given statute or contract until it has been submitted
to some court for its interpretation and construction.21
Suffice it to say, a statement describing Estrada’s previous commitment not to
seek any elective office cannot operate as a condition for his pardon, sans any
indication that it was intended to be so. In light of the clear absence of any
condition in the pardon, no ambiguity warrants interpretation by the Court. At the
most, the subject whereas clause depicts the state of affairs at the time when the
pardon was granted. It should not be considered as part and parcel of the entire
act
_______________
21 29 Phil. 188 (1915).
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as it serves neither the ability to enlarge or confer powers nor the authority to
control the words of the act.
Third. The pardoning power is granted exclusively to the President amidst the
constitutional scheme of checks and balances. While it is most ideal that the
executive strictly adheres to this end, it is undeniable that the pardoning power is
still dependent on the grantor’s measure of wisdom and sense of public policy. This
reality invites, if not bolsters, the application of the political question doctrine. The
only weapon, which the Court has freedom to wield, is the exercise of judicial power
against a blatant violation of the Constitution. When unavailing, the Court is
constrained to curb its own rebuking power and to uphold the acumen of a coequal
branch. It would do the Court well to remember that neither the Congress nor the
courts can question the motives of the President in the use of the power.22
 Hence, in determining the nature of Estrada’s pardon, the Court must
undertake a tempered disposition and avoid a strained analysis of the obvious.
Where there is no ostensible condition stated in the body of the pardon, to envisage
one by way of statutory construction is an inexcusable judicial encroachment.
The absolute nature of Estrada’s pardon now begets a more astute query: what
rights were restored in his favor?
II. Estrada’s Civil and Political Rights Restored
In this particular issue, the ponencia deserves my full agreement in finding
that the third preambular clause of Estrada’s pardon does not militate against the
conclusion that Estrada’s rights to suffrage and to seek public office have been
restored. Further, the subject pardon had substantially complied with the
statutory requirements laid down in Articles 36 and 41 of the RPC. The authority
of the said provi-
_______________
22 Supra note 17.
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Risos-Vidal vs. Commission on Elections
sions of law was reinforced by the ruling of the Court in Monsanto v. Factoran,
Jr. A deeper analysis of Monsanto, however, reveals that its repercussions actually
favor Estrada.
Consider these points:
1. Monsanto involved an absolute pardon, from which, Estrada likewise
benefits.
2. The issue in Monsanto involved the propriety of an automatic reinstatement
to public office. In refutation of the Garland cases, the Court maintained that while
an absolute pardon remits all the penal consequences of a criminal indictment if
only to give meaning to the fiat that a pardon, being a presidential prerogative ...
it, however, rejected the “fictitious belief that pardon blots out the guilt of an
individual and that once he is absolved, he should be treated as if he were
innocent.”
3. Monsanto’s absolute disqualification or ineligibility from public office was
considered to have formed part of the punishment prescribed against
her. Ultimately, when her guilt and punishment were expunged by her
pardon, this particular disability was likewise removed.
4. Noteworthy is the observation of the Court that she may apply for
reappointment to the office, but in the appraisal of her suitability to a public post,
the facts constituting her past offense should be taken into account to determine
whether she could once again serve in a public office.
After serious reflection, I am convinced that the foregoing pronouncement
parallels that which should apply to Estrada.
In Monsanto, the Court declared that the absolute pardon granted to her by
the President effectively expunged her dis-
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qualification or ineligibility to hold public office because this formed part of the
penalty against her. As in the foregoing discussion on the absolute nature of
Estrada’s pardon, there is no question that his pardon likewise remitted the
punishment previously imposed in his conviction for plunder. As such, he was
released from incarceration and thereafter regained his liberty of movement, albeit
ordered to abide by the forfeiture of his properties as listed in the judgment of
the Sandiganbayan. More significantly, there was no categorical statement
impressed in Monsanto that banned her from holding public office again. All that
it withheld was an automatic reinstatement to her previous office and her
entitlement to backpay. In other words, Monsanto may hold public office provided
that there is favorable action on her application.
While I generally acquiesce with the scholarly opinions of Justices Padilla and
Feliciano in Monsanto, I find it difficult to apply their respective observations (that
based on Article 36 of the RPC, it was clear that the pardon extended by the
President did not per seentitle Monsanto to again hold public office or to suffrage
because nothing therein expressly provided the restoration of the said rights with
specifity) precisely because this was not adopted in the majority decision. There is
a stark difference between the positions taken by the concurring justices from the
very holding of the majority. The former entirely and perpetually denied Monsanto
of her right to hold public office, while the latter merely disallowed an automatic
reinstatement but permitted her to undergo reapplication with the
only caveat that her pardon did not place her in a state of complete innocence. In
other words, her past conviction should be considered as forming part of her
credentials in her reapplication for public office. Between these two conclusions, I
choose with steadfast belief that the holding pronounced in the majority decision
should prevail. The strict interpretation of Article 36 as advocated in the
concurring opinion was not adopted in the main decision, hence, rendering the
same as mere obiter dictum which has no controlling effect.
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378 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
While I do not subscribe to Estrada’s theory that Articles 36 and 41 of the RPC
have the effect of abridging and diminishing the power of the President, I also
remain unconvinced that the said provisions of law should apply to his case
because the strict interpretation of these provisions were not encapsulated in
jurisprudence, particularly Monsanto. Therefore, the statement, “He is hereby
restored to his civil and political rights,” as found in the subject pardon does not
fall short of producing the effect of wiping away the penalties being suffered by the
pardonee. As things stand now, an absolute and full pardon erases both the
principal and accessory penalties meted against him, thereby allowing him to hold
public office once again.
Corollary to this, I am of the opinion that PGMA’s failure to use the term “full,”
apropos to the restoration of Estrada’s rights does not denigrate its coverage.
PGMA’s omission to use such term in the case of Estrada may have been caused
by reasons unknown to the Court. The Court cannot discount the possibility that
this was borne out of plain inadvertence, considering the fact that the pardon was
unaccompanied by a clear condition. Had it been PGMA’s intention to restrict the
rights restored to Estrada, she could have stated clear exceptions thereto, instead
of employing a phrase, which, in its plain meaning, comprises the right to vote and
to run for public office. Besides, the deprivation of these rights is a dangerous
ground that the Court should not tread on, especially when the intention to restrict
their exercise is impalpable.
Applying this to the case at bench, no ban from holding public office should be
imposed on Estrada, because the absolute pardon given to him had effectively
extinguished both the principal and accessory penalties brought forth by his
conviction. Succinctly, Estrada’s civil and political rights had been restored in full.
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III. Estrada’s Right to Run for Public Office Restored
Consistent with my view that Monsanto reflects the obliteration of Estrada’s
perpetual disqualification, I conclude that he now possesses the right to vote and
to run for public office.
Lest it be misunderstood, this conclusion does not degenerate from the doctrine
that a pardon only relieves a party from the punitive consequences of his past
crimes, nothing more. Indeed, “a person adjudged guilty of an offense is a convicted
criminal, though pardoned; he may be deserving of punishment, though left
unpunished; and the law may regard him as more dangerous to society than one
never found guilty of crime, though it places no restraints upon him following his
conviction.”23 Estrada was not reborn into innocence by virtue of the forgiveness
bestowed in by the pardon. The moral stain caused by his past crimes remains to
be part of his person, then as now. In no way did his pardon serve as a stamp of
incorruptibility. It is not a magic spell that superimposes virtuousness over guilt.
His past conviction for plunder would forever form part of his person, whether as
a private individual or a public officer.
Without squabble, plunder is a crime involving moral turpitude. Nevertheless,
this fact alone negates a mechanical application of statutory provisions on
disqualification. One thing is clear, in the exercise of her exclusive power to grant
executive clemency, PGMA pardoned Estrada, thereby wiping away the penalties
of his crime and entitling him the right to run for public office. Corollary to this,
Estrada’s fitness to hold public office is an issue that should not concern the Court.
All that the Court can rule on is the availability of Estrada’s right to seek public
office. This ruling on his eligibility is not tantamount to a declaration that Estrada
befits a person wholly deserving of the people’s trust. The Manileños’
_______________
23 Monsanto v. Factoran, Jr., supra note 7 at p. 201; p. 198, citing State v.
Cullen, 127 P. 2d 257, cited in 67 C.J.S. 577, note 18.
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380 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
decision alone can mould the city’s journey to either development or decline.
Indeed, election expresses the sovereign will of the people consistent with the
principle of vox populi est suprema lex. This is the beauty of democracy which the
Court must endeavour to protect at all cost. As Abraham Lincoln put it with both
guile and eloquence:
Elections belong to the people. It’s their decision. If they decide to turn their
back on the fire and burn their behinds, then they will just have to sit on their
blisters.
For the foregoing reasons, I vote to CONCUR with the majority opinion.
DISSENTING OPINION
LEONEN, J.:
This case has distressing consequences on the Rule of Law. By reading an
ambiguity in favor of a convicted public officer, impunity is tolerated.
I dissent.
Joseph Ejercito Estrada, former President of the Republic of the Philippines,
was found guilty beyond reasonable doubt of the crime of plunder. A heinous crime
of the highest order, the law penalizing plunder — Republic Act No. 7080 — made
possible the imposition of the supreme penalty of death upon public officers who
amass ill-gotten wealth on a grand scale through a combination or series of
acts.1 Though an interven-
_______________
1 Rep. Act No. 7080 (1991), Sec. 2:
Sec. 2. Definition of the Crime of Plunder; Penalties.—Any public officer who,
by himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt
or criminal acts as described in Section 1(d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be
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Risos-Vidal vs. Commission on Elections
ing statute2 now prevents the imposition of the penalty of death, our laws have
no less abhorrence for this crime.
Joseph Ejercito Estrada, former President of the Republic of the Philippines,
was pardoned shortly after he had been convicted. This case presents to this court
a dilemma engendered by ambiguities in the pardon extended to him.
The court must decide on whether these ambiguities shall be interpreted to
benefit a convicted former President, shown to have amassed ill-gotten wealth on
a grand scale and to have betrayed the trust given to him through the investiture
of the highest office in the land; or to benefit the public which reposes its trust on
elected public officials. Many other public officials have been found liable for graft
and corrupt practices of far lesser scales than those for which Joseph Ejercito
Estrada had been convicted. They now languish in jails, deprived of liberties and
entitlements. This case is not about their pardon. They continue to suffer the
penalties that their convictions entail, unlike the former President of the Republic
of the Philippines.
 This case, in short, will affect the public’s attitude to the Rule of Law and the
possibilities for immunity for very influential public officials.
_______________
guilty of the crime of plunder and shall be punished by reclusion perpetua to
death. Any person who participated with the said public officer in the commission
of an offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets including
the properties and shares of stocks derived from the deposit or investment thereof
forfeited in favor of the State. (As amended by Rep. Act No. 7659, approved on
December 13, 1993)
2 Rep. Act No. 9346 (2006), otherwise known as An Act Prohibiting the
Imposition of Death Penalty in the Philippines.
382
382 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
Not having been unequivocally restored to a status worthy of being a repository
of the public trust, there is no reason to lavish Joseph Ejercito Estrada by
facilitating his reversion to elective public office. Thus, I dissent from the majority
decision.
I ACQUITTAL.
Through a petition for certiorari, Atty. Alicia Risos-Vidal (Risos-Vidal) prays
that the assailed resolutions3 dated April 1, 2013 of the Second Division of public
respondent Commission on Elections (COMELEC), and April 23, 2013 of
COMELEC, sitting En Banc, be annulled and set aside. In addition, she prays that
a new judgment be entered disqualifying private respondent Joseph Ejercito
Estrada (Estrada) from running as Mayor of the City of Manila, and cancelling the
certificate of candidacy he filed in connection with the May 13, 2013 election for
the position of Mayor of the City of Manila.4
The assailed April 1, 2013 resolution dismissed the petition for disqualification
filed by Risos-Vidal and docketed as SPA No. 13-211 (DC). The assailed April 23,
2013 resolution denied her motion for reconsideration.
A motion for leave to intervene5 was filed by Estrada’s opponent in the
mayoralty race, Alfredo S. Lim (Lim). Attached to Lim’s motion was his petition-
in-intervention.6 Lim’s motion was granted by the court in the resolution7 dated
June 25, 2013.
______________
3 Rollo, pp. 39-43, 49-50.
4 Id., at p. 34.
5 Id., at pp. 390-392.
6 Id., at pp. 395-412.
7 Id., at p. 438.
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Risos-Vidal vs. Commission on Elections
II
Statement of the antecedents
On April 4, 2001, the Office of the Ombudsman filed against
private respondent, Joseph Ejercito Estrada, former President of the Republic of
the Philippines, and several other accused,8 an information for plunder, penalized
by Republic Act No. 7080, as amended by Republic Act No. 7659. This case was
filed before the Sandiganbayan and docketed as Criminal Case No. 26558.
In the decision9 dated September 12, 2007, the Sandiganbayan, Special
Division, convicted Estrada of the crime of plunder. He was sentenced to suffer
“the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction
during the period of sentence and perpetual absolute disqualification.”10
The dispositive portion of this decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in
Criminal Case No. 26558 finding the accused, Former President Joseph Ejercito
Estrada, GUILTY beyond reasonable doubt of the crime of PLUNDER defined in
and penalized by Republic Act No. 7080, as amended. On the other hand, for failure
of the prosecution to prove and establish their guilt beyond reasonable doubt, the
Court finds the accused Jose “Jinggoy” Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the Court hereby orders their
_______________
8 Jose “Jinggoy” Estrada, Charlie “Atong” Tiu Hay Sy Ang, Edward S. Serapio,
Yolanda T. Ricaforte, Alma Alfaro, a John Doe (also known as Eleuterio Ramos
Tan or Mr. Uy), a Jane Doe (also known as Delia Rajas), and several other John
and Jane Does.
9 Rollo, pp. 52-262.
10 Id., at p. 261.
384
384 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
The penalty imposable for the crime of plunder under Republic Act No.
7080,11 as amended by Republic Act No. 7659,12 is Reclusion Perpetua to Death.
There being no aggravating or mitigating circumstances, however, the lesser
penalty shall be applied in accordance with Article 63 of the Revised Penal
Code.13Accordingly, the accused Former President Joseph Ejercito Estrada
is hereby sentenced to suffer the penalty of Reclusion Perpetua and the
accessory penalties of civil interdiction during the period of sentence and
perpetual absolute disqualification.
_______________
 11 Rep. Act No. 7080 (1991), otherwise known as An Act Defining and _______________
Penalizing the Crime of Plunder.
12 Rep. Act No. 7659 (1993), otherwise known as An Act to Impose the Death 14 In the decision dated September 12, 2007, Rollo, p. 261, the numbers in
Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal words and in figures do not match.
Laws, as Amended, Other Special Penal Laws, and for Other Purposes. 15 Rollo, pp. 260-262.
13 Art. 63. Rules for the application of indivisible penalties.— In all cases in 386
which the law prescribes a single indivisible penalty, it shall be applied by the
386 SUPREME COURT REPORTS ANNOTATED
courts regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed. Risos-Vidal vs. Commission on Elections
In all cases in which the law prescribes a penalty composed of two indivisible On October 25, 2007, then President Gloria Macapagal-Arroyo granted pardon
penalties, the following rules shall be observed in the application thereof: to Estrada. The complete text of this pardon reads:
1. When in the commission of the deed there is present only one aggravating MALACAÑAN PALACE
circumstance, the greater penalty shall be applied. MANILA
2. When there are neither mitigating nor aggravating circumstances and there
is no aggravating circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating
circumstances and there is no aggravating circumstance, the lesser penalty shall
be applied.
4. When both mitigating and aggravating circumstances attended the
commission of the act, the court shall reasonably allow them to offset one another
in consideration of their number and importance, for the purpose of applying the WHEREAS, this Administration has a policy of releasing inmates who have
penalty in accordance with the preceding rules, according to the result of such reached the age of seventy (70),
compensation. WHEREAS, Joseph Ejercito Estrada has been under detention for six and a
385 half years,
VOL. 747, JANUARY 21, 2015 385 WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek
any elective position or office,
Risos-Vidal vs. Commission on Elections
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
The period within which accused Former President Joseph Ejercito Estrada
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
has been under detention shall be credited to him in full as long as he agrees
ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty
voluntarily in writing to abide by the same disciplinary rules imposed upon
of Reclusion Perpetua. He is hereby restored to his civil and political rights.
convicted prisoners.
The forfeitures imposed by the Sandiganbayan remain in force and in full,
Moreover, in accordance with Section 2 of Republic Act No. 7080, as amended
including all writs and processes issued by the Sandiganbayan in pursuance
by Republic Act No. 7659, the Court hereby declares the forfeiture in favor of the
hereof, except for the bank account(s) he owned before his tenure as President.
government of the following:
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this
(1) The total amount of Five Hundred Forty-Two Million Seven Ninety-One
pardon shall take effect.
Thousand Pesos (P545,291,000.00)14 with interest and income earned, inclusive of
the amount of Two Hundred Million Pesos (P200,000,000.00), deposited in the
Given under my hand at the City of Manila, this 25th Day of October, in the
name and account of the Erap Muslim Youth Foundation.
year of Our Lord, two thousand and seven.
(2) The amount of One Hundred Eighty-Nine Million Pesos
Gloria M. Arroyo (sgd.)
(P189,000,000.00), inclusive of interests and income earned, deposited in the Jose
Velarde account.
By the President:
(3) The real property consisting of a house and lot dubbed as “Boracay
IGNACIO R. BUNYE (sgd.)
Mansion” located at #100 11th Street, New Manila, Quezon City.
Acting Executive Secretary16
The cash bonds posted by accused Jose “Jinggoy” Estrada and Atty. Edward S.
Serapio are hereby ordered cancelled and released to the said accused or their duly
On October 26, 2007, Estrada accepted the entire pardon without
authorized representatives upon presentation of the original receipt evidencing
qualifications. This acceptance is evidenced by a handwritten notation on the
payment thereof and subject to the usual accounting and auditing procedures.
pardon, which reads:
Likewise, the hold departure orders issued against the said accused are hereby
Received & accepted
recalled and declared functus officio.
SO ORDERED.15 (Emphasis and citations supplied)
 Joseph E. Estrada (sgd.) (f) Permanent residents in a foreign country or those who have acquired the
DATE: 26 Oct. ‘07 right to reside abroad and continue to avail of the same right after the effectivity
TIME: 3:35 PM17 of this Code; and
(g) The insane or feeble-minded.
On October 2, 2012, Estrada filed his certificate of candidacy18for the position 21 Sec. 12. Disqualifications.—Any person who has been declared by
of Mayor of the City of Manila. competent authority insane or incompetent, or has been sentenced by final
On January 14, 2013, Risos-Vidal, a resident and registered voter of the City judgment for subversion, insurrection, rebellion or for any offense for which he has
of Manila, filed before public respondent COMELEC a petition for been sentenced to a penalty of more than eighteen months or for a crime involving
disqualification19 against Estrada. This petition, docketed as SPA No. 13-211 (DC), moral turpitude, shall be disqualified to be a candidate and to hold any office,
was filed pursuant to Section 40 of Republic Act No. 7160, otherwise known as the unless he has been given plenary pardon or granted amnesty.
Local Government Code of 1991 (the Local Government Code), 20 in relation to This disqualifications to be a candidate herein provided shall be deemed
Section 12 of Batas Pam- removed upon the declaration by competent authority that said insanity or
_______________ incompetence had been removed or after the expiration of a period of five years
from his service of sentence, unless within the same period he again becomes
16 Id., at p. 265. disqualified.
17 Id. Certified true copy issued by Marianito M. Dimaandal, Director IV, 22 Rollo, p. 267.
Malacañan Records Office. 23 Id., at pp. 284-296.
18 Id., at p. 266. 389
19 Id., at pp. 267-275. VOL. 747, JANUARY 21, 2015 389
20 Sec. 40. Disqualifications.—The following persons are disqualified from
running for any elective local position: Risos-Vidal vs. Commission on Elections
(a) Those sentenced by final judgment for an offense involving moral turpitude January 20, 2010 of the COMELEC Second Division and second, through the
or for an offense punishable by one (1) year or more of imprisonment, within two resolution of the COMELEC En Banc dated May 4, 2010 — the Commission on
(2) years after serving sentence; Elections had already ruled that the pardon granted to Estrada was absolute and
(b) Those removed from office as a result of an administrative case; unconditional and, hence, did not prevent him from running for public office. Thus,
(c) Those convicted by final judgment for violating the oath of allegiance to the the matter of Estrada’s qualification, in relation to the efficacy of the penalties
Republic; imposed on him on account of his conviction for plunder, “ha[d] been passed upon
388 and ruled out by this Commission way back in 2010.”24
In the resolution dated April 23, 2013, the COMELEC En Bancdenied Risos-
388 SUPREME COURT REPORTS ANNOTATED Vidal’s motion for reconsideration.
Risos-Vidal vs. Commission on Elections On April 30, 2013, Risos-Vidal filed the present petition.25 Risos-Vidal ascribed
bansa Blg. 881, otherwise known as the Omnibus Election Code.21 It sought to grave abuse of discretion amounting to lack or excess of jurisdiction on COMELEC
disqualify Estrada from running for Mayor of the City of Manila on account of his in not disqualifying Estrada. She assailed COMELEC’s refusal to grant her
conviction for plunder and having been sentenced to suffer the penalty of reclusion petition on account of its having supposedly ruled on the same issues in the
perpetua, and the accessory penalties of civil interdiction and perpetual absolute disqualification cases filed in connection with Estrada’s 2010 bid for the
disqualification.22 presidency.26 She asserted that Estrada’s pardon was conditional and served
Estrada filed his answer23 on January 24, 2013. neither to restore his rights “to vote, be voted upon and to hold public office” 27 nor
On April 1, 2013, the COMELEC Second Division issued the first assailed to remit the accessory penalty of perpetual absolute disqualification.28 She added
resolution dismissing Risos-Vidal’s petition for lack of merit. that, for having been convicted of plunder, a crime involving moral turpitude,
In this resolution, the COMELEC Second Division noted that in 2010, Estrada was barred from running for Mayor by Section 40 of the Local Government
following Estrada’s filing of a certificate of candidacy for President of the Code.29 Insisting that the grounds for disqualifying Estrada were so manifest, she
Philippines, two disqualification cases — SPA No. 09-028 (DC) and SPA No. 09- faulted COMELEC for not having disqualified motu proprio.30
104 (DC) — were filed against him. It added that, in deciding these disqualification
cases — first, through the resolution dated In the meantime, elections were conducted on May 13, 2013. Per COMELEC’s
_______________ “Certificate of Canvass of Votes and Proclamation of Winning Candidates for
National Capital Region – Manila” dated May 17, 2013,31 Estrada was noted to
(d) Those with dual citizenship; have obtained 349,770 votes.32 His opponent in the mayoralty race, Lim, obtained
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad; 313,764 votes,33 giving the lead to Estrada. Estrada was, thus, proclaimed as the
“duly elected”34 city mayor.
 On June 7, 2013, Lim filed a motion for leave to intervene 35 to which was
attached his petition-in-intervention.36 He argued that, regardless of whether the
pardon granted to Estrada was absolute or conditional, it did not expressly restore
his right of suffrage and his right to hold public office, and it did not remit his
perpetual absolute disqualification as required by Articles 3637 and 4138 of the
Revised Penal Code. Thus, he remained ineligible for election into public
office.39 He added that, per this court’s decision in Dominador Jalos-
_______________
31 Id., at p. 726.
32 Id.
33 Id., at p. 437.
34 Id., at p. 726.
35 Id., at pp. 390-393.
36 Id., at pp. 395-412.
37 ARTICLE 36. Pardon; Its Effects.—A pardon shall not work the
restoration of the right to hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
38 ARTICLE 41. Reclusion Perpetua and Reclusion Temporal — Their
accessory penalties.—The penalties of reclusion perpetua and reclusion
temporalshall carry with them that of civil interdiction for life or during the period
of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.
39 Rollo, pp. 401-409.
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jos, Jr. v. COMELEC,40 he had the “right to be declared and proclaimed mayor
of Manila upon the declaration of respondent Estrada’s disqualification.” 41
In the resolution42 dated June 25, 2013, this court granted Lim’s motion for
leave to intervene and required respondents to file their comments on Lim’s
petition-in-intervention in addition to filing their comment on Risos-Vidal’s
petition.
On July 15, 2013, Estrada filed his comment on Lim’s petition-in--
intervention.43 He argued that Lim lacked “legal standing to prosecute this
case,”44 that the pardon granted to him restored his right to seek public
office,45 and that Articles 36 and 41 of the Revised Penal Code are not only
unconstitutional, as they diminish the pardoning power of the President, 46 but
have also been repealed by subsequent election laws (e.g., Section 94 of
Commonwealth Act No. 35747 and Section 12 of the Omnibus Election
Code),48 which recognize
_______________
40 G.R. No. 193237, October 9, 2012, 683 SCRA 1 [Per J. Carpio, En Banc].
41 Id., at p. 409.
42 Id., at p. 438.
43 Id., at pp. 457-485.
44 Id., at p. 460.
45 Id., at pp. 464-467.
46 Id., at pp. 468-481
47 Sec. 94. Disqualifications.—The following persons shall not be qualified
to vote:
(a) Any person who has been sentenced by final judgment suffer eighteen
months or more of imprisonment, such disability not having been removed by
plenary pardon.
(b) Any person who has been declared by final judgment guilty of any crime
against property.
(c) Any person who has violated his allegiance to the United States or to the
Commonwealth of the Philippines.
(d) Insane or feeble-minded persons.
(e) Persons who can not prepare their ballots themselves.
48 Sec. 12. Disqualifications.—Any person who has been declared by
competent authority insane or incompetent, or has been
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“plenary pardon[s].” He added that Risos-Vidal’s assertions that President
Gloria Macapagal-Arroyo could not have intended for Estrada’s pardon to be
absolute as they were “political rivals”49 is a factual issue that required the
“remand”50 of the case to the Court of Appeals or the reception of evidence through
oral arguments.51
On July 29, 2013, public respondent COMELEC, through the Office of the
Solicitor General (OSG) filed its consolidated comment.52 It noted that the effects
of the pardon granted to Estrada had already been ruled upon by COMELEC in
connection with disqualification cases filed against him on the occasion of his 2010
bid for the presidency.53 It added that Estrada’s rights to vote and be voted for had
indeed been restored and his perpetual disqualification remitted by the pardon
granted to him.
On August 6, 2013, Estrada filed his comment54 on Risos-Vidal’s petition. In
addition to arguing that he was granted an absolute pardon which rendered him
eligible to run and be voted as mayor, Estrada argued that the present case
involves the same issues as those in the 2010 disqualification cases filed against
him, that “the findings of fact of the public
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sentenced by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a candidate and
to hold any office, unless he has been given plenary pardon or granted amnesty.
This [sic] disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five years
from his service of sentence, unless within the same period he again becomes
disqualified.
49 Rollo, p. 483.
50 Id.
51 Id.
52 Id., at pp. 489-507.
53 Id., at p. 498.
54 Id., at pp. 574-610.
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respondent COMELEC relative to the absoluteness of the pardon, the effects
thereof and the eligibility of the Private Respondent Estrada are binding and
conclusive”55 on this court, and that the allegations made by Risos-Vidal are
insufficient to disturb the assailed resolutions. 56 He added that Risos-Vidal’s
petition before the COMELEC was filed out of time, it being, in reality, a petition
to deny due course to or to cancel his certificate of candidacy, and not a petition for
disqualification.57 He also asserted that Dominador Jalosjos, Jr. was inapplicable
to the present case.58 Finally, he claimed that his disqualification would mean the
disenfranchisement of the voters who elected him.59
On August 23, 2013, Lim filed his reply to Estrada’s comment on his petition-
in-intervention and to COMELEC’s consolidated comment.60 On August 27, 2013,
Risos-Vidal filed her reply61 to Estrada’s comment on her petition. On December
13, 2013, Risos-Vidal filed her reply62 to COMELEC’s consolidated comment.
In the resolution dated April 22, 2014, the petition and petition-in-intervention
were given due course and the parties required to submit their memoranda. The
parties complied: Lim on May 27, 2014,63 Risos-Vidal on June 2, 2014,64 Estrada
on June 16, 2014,65and COMELEC on June 26, 2014.66
III
Statement of issues
For resolution are the following issues:
A. Procedural issues
1. Whether the petition filed by petitioner Atty. Alicia Risos-Vidal before the
COMELEC was filed on time;
2. Whether petitioner-intervenor Alfredo S. Lim may intervene in this case;
and
3. Whether COMELEC’s rulings in the disqualification cases filed against
private respondent Joseph Ejercito Estrada in connection with his 2010 bid for the
presidency bar the consideration of the petition filed by petitioner Atty. Alicia
Risos-Vidal before the COMELEC, as well as the present petition for certiorari.
B. Substantive issues
1. Whether private respondent Joseph Ejercito Estrada was qualified to run
for Mayor of the City of Manila; and
2. Assuming private respondent Joseph Ejercito Estrada was not qualified,
whether petitioner-intervenor Alfredo S. Lim should be declared Mayor of the City
of Manila.
At the core of this case is the issue of whether Estrada was qualified to run for
Mayor of the City of Manila. Estrada, however, has invoked several procedural
issues that, if decided in his favor, would effectively impede this court’s having to
rule on the substantive issue of his qualification. All of these procedural obstacles
lack merit and should not prevent this court from ruling on Estrada’s qualification.
IV
The petition filed by petitioner Atty.
Alicia Risos-Vidal with COMELEC
was filed on time
Estrada argues that the petition filed by Risos-Vidal before the COMELEC
should be treated as a petition to deny due course to or to cancel a certificate of
candidacy (CoC) under Section 78 of Batas Pambansa Blg. 881, otherwise known
as the Omnibus Election Code67 (Section 78 petition). He claims that the petition
effectively assailed the falsity of a representation he made in his CoC — that is,
that he was eligible for the office he sought to be elected to — and, therefore,
invoked a ground for a Section 78 petition, rather than a ground for a petition for
disqualification.
Estrada adds that Rule 23, Section 2 of COMELEC Resolution No.
952368 provides that a Section 78 petition must be filed within five (5) days from
the last day for filing a CoC, but not later than 25 days from the time of the filing
of the CoC specifically subject of the petition. He claims that, since Risos-
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67 Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy.—A verified petition seeking to deny due course or to cancel a certificate
of candidacy may be filed by the person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after due notice and
hearing, not later than fifteen days before the election.
68 Sec. 2. Period to File Petition.—The Petition must be filed within five (5)
days from the last day for filing of certificate of candidacy; but not later than
twenty-five (25) days from the time of filing of the certificate of candidacy subject
of the Petition. In case of a substitute candidate, the Petition must be filed within
five (5) days from the time the substitute candidate filed his certificate of
candidacy.
Vidal’s petition was all but a “camouflaged”69 petition for disqualification, Rule
25, Section 3 of COMELEC Resolution No. 9523,70 which allows for petitions for
disqualification to be “filed any day after the last day for filing of certificates of
candidacy, but not later than the date of proclamation” finds no application. As
Risos-Vidal’s petition was filed before the COMELEC on January 14, 2013 — one
hundred and four (104) days removed from October 2, 2012, when he filed his CoC
— Estrada argues that Risos-Vidal’s petition was belatedly filed and, hence, should
have been summarily dismissed by COMELEC.
Estrada’s assertion is erroneous.
This court’s 2008 decision in Fermin v. COMELEC71 allowed for an
opportunity “to dichotomize, once and for all, two popular remedies to prevent a
candidate from running for an elective position which are indiscriminately
interchanged by the Bench and the Bar”:72 on the one hand, a petition to deny due
course to or to cancel a certificate of candidacy under Section 78 of the Omnibus
Election Code and, on the other, a petition for disqualification under Section 68 of
the Omnibus Election Code (Section 68 petition).
The two remedies, and their distinctions, were discussed in the course of this
court’s characterization of the petition involved in Fermin — whether it was a
Section 78 petition or a Section 68 petition — considering that such petition was
anchored on an allegation that a candidate for Mayor was ineligible for failing to
satisfy the requirement of residency of at least one (1) year immediately preceding
the election. The problem of characterization is the same issue facing us at this
juncture:
Lest it be misunderstood, the denial of due course to or the cancellation of the
CoC is not based on the lack of qualifications but on a finding that the candidate
made a material representation that is false, which may relate to the
qualifications required of the public office he/she is running for. It is noted that
the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the
constitutional and statutory provisions on qualifications or eligibility for public
office. If the candidate subsequently states a material representation in the CoC
that is false, the COMELEC, following the law, is empowered to deny due course
to or cancel such certificate. Indeed, the Court has already likened a proceeding
under Section 78 to a quo warrantoproceeding under Section 253 of the OEC since
they both deal with the eligibility or qualification of a candidate, with the
distinction mainly in the fact that a “Section 78” petition is filed before
proclamation, while a petition for quo warranto is filed after proclamation of the
winning candidate.
At this point, we must stress that a “Section 78” petition ought not to be
interchanged or confused with a “Section 68” petition. They are different remedies,
based on different grounds, and resulting in different eventualities. . . .
The ground raised in the Dilangalen petition is that Fermin allegedly lacked
one of the qualifications to be elected as mayor of Northern Kabuntalan, i.e., he
had not established residence in the said locality for at least one year immediately
preceding the election. Failure to meet the one-year residency requirement for the
public office is not a ground for the “disqualification” of a candidate under Section
68. [Section 68] only refers to the commission of prohibited acts and the
possession of a permanent resident status in a foreign country as grounds
for disqualification, thus:
SEC. 68. Disqualifications.—Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court guilty of, or
found by the Commission of having (a) given money or other material consideration
to influence, induce or corrupt the voters or public officials performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his
election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and
104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if
he has been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run for
any elective office under this Code, unless said person has waived his status as a
permanent resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws.
Likewise, the other provisions of law referring to “disqualification” do not
include the lack of the one-year residency qualification as a ground therefor, thus:
Section 12 of the OEC
SEC. 12. Disqualifications.—Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion, or for any offense for which he
has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any
office, unless he
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has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five years
from his service or sentence, unless within the same period he again becomes
disqualified.
Section 40 of the Local Government Code (LGC)
SECTION 40. Disqualifications.—The following persons are disqualified
from running for any elective local position:
(a) Those sentence by final judgment for an offense involving moral turpitude
or for an offense punishable by one (1) year or more of imprisonment, within two
(2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to
the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the effectivity
of this Code; and
(g) The insane or feeble-minded.
Considering that the Dilangalen petition does not state any of these grounds
for disqualification, it cannot be categorized as a “Section 68” petition.
To emphasize, a petition for disqualification, on the one hand, can be premised
on Section 12 or 68 of the [Omnibus Election Code], or Section 40 of the [Local
Government Code]. On the other hand, a petition to deny due course to or cancel a
CoC can only be grounded on a statement of a material representation in the said
certificate that is false. . . .73 (Emphasis supplied, citations omitted)
The quoted discussion clearly establishes the distinction of when it is proper to
resort to a Section 78 petition as against a petition for disqualification under
Section 68 of the Omnibus Election Code: (1) a Section 78 petition is proper when
a statement of a material representation in a certificate of candidacy is false; and
(2) a Section 68 petition is proper when disqualification is sought on account of
having committed electoral offenses and/or possession of status as a permanent
resident in a foreign country.
Fermin, however, did not just touch on petitions for disqualification anchored
on Section 68 of the Omnibus Election Code, but also on petitions for
disqualification anchored on Section 12 of the Omnibus Election Code and on
Section 40 of the Local Government Code. Fermin made the pronouncement that
Section 12 of the Omnibus Election Code and Section 40 of the Local Government
Code are equally valid grounds for a petition for disqualification.
Nevertheless, Fermin was not categorical on when a petition for disqualification
anchored on these statutory provisions may be resorted to vis-à-vis a Section 78
petition.
A subsequent case, Aratea v. COMELEC,74 affirms that petitions for
disqualification may be anchored on Section 12 of the Omnibus Election Code,
and/or Section 40 of the Local Government Code, much as they can be anchored on
Section
_______________
73 Id., at pp. 465-469; pp. 792-796.
74 G.R. No. 195229, October 9, 2012, 683 SCRA 105 [Per J. Carpio, En Banc].
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68 of the Omnibus Election Code: “A petition for disqualification can only be
premised on a ground specified in Section 12 or 68 of the Omnibus Election Code
or Section 40 of the Local Government Code.”75
Likewise, Rule 25, Section 1 of COMELEC Resolution No. 9523 indicates that
a petition for disqualification is based on legally (i.e., by Constitution or by statute)
prescribed disqualifications. It provides:
Section 1. Grounds.—Any candidate who, in an action or protest in which he
is a party, is declared by final decision of a competent court, guilty of, or found by
the Commission to be suffering from any disqualification provided by law
or the Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny
to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a
Nuisance Candidate, or a combination thereof, shall be summarily dismissed.
(Emphasis supplied)
However, Aratea and COMELEC Resolution No. 9523, like Fermin, are
uncategorical on the availability of petitions for disqualification anchored on
Section 12 of the Omnibus Election Code and/or Section 40 of the Local
Government Code vis-à-visresort to Section 78 petitions. Any standing ambiguity
was settled by this court’s discussion in Dominador Jalosjos, Jr. v. Commission on
Elections.76
In Dominador Jalosjos, Jr., this court affirmed the COMELEC’s grant of a
Section 78 petition and sustained the cancellation of the certificate of candidacy
filed by Dominador Jalosjos, Jr. in his bid to be elected Mayor of Dapitan City,
Zamboanga del Norte in the May 10, 2010 elections. This cancellation was
premised on a finding that Jalosjos, Jr. made a ma-
_______________
75 Id., at pp. 141-142.
76 Supra note 40.
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402 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
terial misrepresentation in his CoC in stating that he was eligible for election.
Jalosjos, Jr. had previously been convicted of robbery and sentenced to suffer the
accessory penalty of perpetual special disqualification. In sustaining the
cancellation of his CoC, this court reasoned:
The perpetual special disqualification against Jalosjos arising from his
criminal conviction by final judgment is a material fact involving eligibility which
is a proper ground for a petition under Section 78 of the Omnibus Election Code.
....
A false statement in a certificate of candidacy that a candidate is eligible to
run for public office is a false material representation which is a ground for a
petition under Section 78 of the same Code. . . .
....
Section 74 requires the candidate to state under oath in his certificate of
candidacy “that he is eligible for said office.” A candidate is eligible if he has a right
to run for the public office. If a candidate is not actually eligible because he is
barred by final judgment in a criminal case from running for public office, and he
still states under oath in his certificate of candidacy that he is eligible to run for
public office, then the candidate clearly makes a false material representation that
is a ground for a petition under Section 78.77 (Citations omitted)
From these, it is clear that a false claim of eligibility made in a certificate of
candidacy despite a prior conviction which carries with it the accessory penalty of
disqualification is a ground for a Section 78 petition. Nevertheless, it is also a
ground for a petition for disqualification. As explained in Dominador Jalosjos, Jr.:
_______________
77 Id., at pp. 20-21.
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What is indisputably clear is that the false material representation of Jalosjos
is a ground for a petition under Section 78. However, since the false material
representation arises from a crime penalized by prisión mayor, a petition under
Section 12 of the Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a choice whether to anchor his
petition on Section 12 or Section 78 of the Omnibus Election Code, or on Section
40 of the Local Government Code. The law expressly provides multiple
remedies and the choice of which remedy to adopt belongs to the
petitioner.78
The concurrent availability of a Section 78 petition with a petition for
disqualification should not be interpreted as diminishing the distinction between
the two (2) remedies.
The pivotal consideration in a Section 78 petition is material
misrepresentation relating to qualifications for elective public office. To
“misrepresent” is “to describe (someone or something) in a false way especially in
order to deceive someone.”79 It, therefore, connotes malevolent intent or bad faith
that impels one to adulterate information. A Section 78 petition thus, squarely
applies to instances in which a candidate is fully aware of a matter of fact that
disqualifies him or her but conceals or otherwise falsely depicts that fact as to
make it appear that he or she is qualified. A petition for disqualification, on the
other hand, may apply in cases where a disqualification exists but, because of an
attendant ambiguity (such as an unsettled legal question), a candidate acts in good
faith and without any deliberate attempt to conceal or mislead.
Right at the onset, the petition filed by Risos-Vidal before the COMELEC on
January 14, 2013 asserts that it was filed pursuant to Section 40 of the Local
Government Code, “in relation to”80 Section 12 of the Omnibus Election Code:
This is a petition pursuant to Sec. 40 of R.A. No. 7160, otherwise known as “The
Local Government Code of 1991,” in relation to Sec. 12 of BP Blg. 881, otherwise
known as the “Omnibus Election Code of the Philippines,” seeking to disqualify
former President Joseph Ejercito Estrada from running for the mayoralty position
in Manila in the coming May 13, 2013 elections, on the ground of his prior
conviction of the crime of plunder by the Sandiganbayan and his having been
sentenced to reclusion perpetua with the accessory penalties of civil interdiction
and perpetual absolute disqualification.81 (Emphasis supplied)
This petition posits that Estrada is disqualified from running as Mayor of the
City of Manila, pursuant to Section 40 of the Local Government Code, as follows:
Sec. 40 of the LGC provides that a person sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by imprisonment of
one (1) year or more is disqualified from running for any elective local position.
As earlier said, respondent was sentenced in Crim. Case No. 26558 to suffer
the penalty of reclusion perpetua.
He was, however, granted pardon by former Pres. Gloria Macapagal-Arroyo,
thus, did not serve his sentence in full.
Nonetheless, while the pardon did restore to him his civil and political rights,
it did not restore to him his right to run for or hold public office or the right of
suffrage because it was not expressly restored by the terms of the pardon. . . .82
This petition unambiguously anchors itself on statutorily prescribed
disqualifications — under Section 40 of the Local Government Code, as well as
Section 12 of the Omnibus Election Code — which jurisprudence has explicitly
recognized as a valid basis for both a petition for disqualification and a Section 78
petition.
It follows that the petition was filed on time. The petition was filed on January
14, 2013, after the last day for filing of certificates of candidacy, and before the
date of Estrada’s proclamation as Mayor on May 17, 2013. This is within the period
permitted by Rule 25, Section 3 of COMELEC Resolution No. 9523.
V
Alfredo S. Lim may intervene in the
present petition for certiorari
Citing Section 44 of the Local Government Code83 — on succession in case of
permanent vacancies in the Office of the
_______________
82 Id., at p. 271.
83 Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice
Governor, Mayor, and Vice Mayor.—
(a) If a permanent vacancy occurs in the office of the governor or mayor, the
vice governor or vice mayor concerned shall become the governor or mayor. If a
permanent vacancy occurs in the offices of the governor, vice governor, mayor, or
vice mayor, the highest ranking sanggunian member or, in case of his permanent
inability, the second highest ranking sanggunian member, shall become the
governor, vice governor, mayor or vice mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically by the
other sanggunian members according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay, the
highest ranking sanggunian barangay member
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406 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
Mayor — and jurisprudence to the effect that “the candidate who obtains the
second highest number of votes may not be proclaimed winner in case the winning
candidate is disqualified,”84 Estrada claims that “the party who stands to benefit
in the event of [his] disqualification is none other than the duly elected Vice Mayor
of the City of Manila, Isko Moreno.”85 Thus, he asserts that “it is clear that Lim
has NO LEGAL STANDING to institute his Petition-In-Intervention.”86
In the first place, Estrada is erroneously invoking the concept of “legal
standing.” What Estrada is really questioning is whether Lim is a real party-in-
interest.
The distinction between the rule on standing and real party-in-interest was
extensively discussed by this court in Kilosbayan, Inc. v. Morato:87
_______________
or, in case of his permanent inability, the second highest
ranking sanggunianmember, shall become the punong barangay.
 (c) A tie between or among the highest ranking sanggunian members shall be
resolved by the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of
their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective
local official fills a higher vacant office, refuses to assume office, fails to qualify,
dies, is removed from office, voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his office.
For purposes of succession as provided in this Chapter, ranking in
the sanggunianshall be determined on the basis of the proportion of votes obtained
by each winning candidate to the total number of registered voters in each district
in the immediately preceding local election.
84 Codilla, Sr. v. De Venecia, 442 Phil. 139, 182; 393 SCRA 639, 675 (2002)
[Per J. Puno, En Banc].
85 Rollo, p. 1757, emphasis and capitalization in the original.
86 Id.
87 316 Phil. 652; 246 SCRA 540 (1995) [Per J. Mendoza, En Banc].
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Not only is petitioners’ standing a legal issue that may be determined again in
this case. It is, strictly speaking, not even the issue in this case, since standing is
a concept in constitutional law and here no constitutional question is actually
involved. The issue in this case is whether petitioners are the “real parties-in-
interest” within the meaning of Rule 3, §2 of the Rules of Court which requires
that “Every action must be prosecuted and defended in the name of the real party-
in-interest.”
The difference between the rule on standing and real party-in-interest has
been noted by authorities thus: It is important to note . . . that standing because of
its constitutional and public policy underpinnings, is very different from questions
relating to whether a particular plaintiff is the real party-in-interest or has capacity
to sue. Although all three requirements are directed towards ensuring that only
certain parties can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating to the proper
role of the judiciary in certain areas. (FRIEDENTHAL, KANE AND MILLER,
CIVIL PROCEDURE 328 [1985])
Standing is a special concern in constitutional law because in some cases suits
are brought not by parties who have been personally injured by the operation of a
law or by official action taken, but by concerned citizens, taxpayers or voters who
actually sue in the public interest. Hence the question in standing is whether such
parties have “alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional
questions.” (Baker v. Carr, 369 U.S. 186, 7 L.Ed. 2d 633 [1962])
....
On the other hand, the question as to “real party-in-interest” is whether he is
“the party who would be benefitted or injured by the judgment, or the ‘party entitled
to the
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408 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
avails of the suit.’” (Salonga v. Warner Barnes & Co., Ltd., 88 Phil. 125, 131
[1951])88 (Emphasis supplied)
In seeking to intervene, Lim has made no pretensions of acting as a
representative of the general public and, thus, advancing the public interest. He
merely prays that he be declared the elected Mayor of the City of Manila following
a declaration that Estrada was disqualified to run for the same post. Though what
is involved is a public office, what Lim seeks to enforce is, fundamentally, a
(supposed) right accruing to him personally to assume an office.
Lim has enough interest at stake in this case as would enable him to intervene.
Rule 19, Section 1 of the 1997 Rules of Civil Procedure provides for who may
intervene in a pending court action:
Section 1. Who may intervene.—A person who has a legal interest in the
matter in litigation, or in the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with
leave of court, be allowed to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the intervenor’s rights may
be fully protected in a separate proceeding. (Emphasis supplied)
The requirement of “legal interest” was discussed in Magsaysay-Labrador v.
Court of Appeals,89 as follows:
The interest which entitles a person to intervene in a suit between other parties
must be in the matter in litiga-
_______________
88 Id., at pp. 695-696; pp. 562-563.
89 259 Phil. 748; 180 SCRA 266 (1989) [Per CJ. Fernan, En Banc].
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tion and of such direct and immediate character that the intervenor will either
gain or lose by the direct legal operation and effect of the judgment. Otherwise, if
persons not parties of the action could be allowed to intervene, proceedings will
become unnecessarily complicated, expensive and interminable. And this is not the
policy of the law.
The words “an interest in the subject” mean a direct interest in the cause of
action as pleaded, and which would put the intervenor in a legal position to litigate
a fact alleged in the complaint, without the establishment of which plaintiff could
not recover.90 (Emphasis supplied)
It is true that the principal matter for resolution in this case is whether
Estrada, based on circumstances personally applying to him, was qualified to run
for Mayor of the City of Manila. Nevertheless, the logical consequence of a decision
adverse to Estrada is the need to identify who shall, henceforth, assume the
position of Mayor.
Lim claims that he is entitled to replace Estrada. In support of this, he cites a
decision of this court91 and claims that, as a disqualified candidate, the votes cast
for Estrada should be deemed stray votes. This would result in Lim being
the qualified candidate obtaining the highest number of votes, which would, in
turn, entitle him to being proclaimed the elected Mayor of the City of Manila.
It is worth emphasizing that “[t]he purpose of intervention is to enable a
stranger to an action to become a party in order for him to protect his interest and
for the court to settle all conflicting claims. Intervention is allowed to avoid
multiplicity of suits more than on due process considerations.”92 Lim’s intervention
serves this purpose. It enables the resolution of an issue which is corollary to one
of the two ways by which this court may decide on the issue of Estrada’s
disqualification.
VI
This case is not barred by
COMELEC’s rulings in the
disqualification cases filed against
Estrada in connection with his 2010
bid for the presidency
a. Estrada’s theory:
case is barred by res
judicata
Estrada avers that in 2010, in connection with what was then his second bid
for the presidency of the Republic, two (2) disqualification cases were filed against
him: one, by a certain Atty. Evilio C. Pormento, docketed as SPA No. 09-028 (DC);
and two, by a certain Mary Lou B. Estrada, docketed as SPA No. 09-104 (DC). In
the resolution dated January 20, 2010,93 the COMELEC Second Division denied
these disqualification petitions for lack of merit and upheld Estrada’s qualification
to run for President. In the resolution dated April 27, 2010, 94 the COMELEC En
Banc denied Mary Lou B. Estrada’s motion for reconsideration. In another
resolution dated May 4, 2010, the COMELEC En Banc denied Pormento’s motion
for reconsideration.95
Estrada claims that “[t]he issue surrounding the character of [his] pardon and
eligibility to seek public elective office was already extensively dealt with and
passed upon”96 in these disqualification cases. He asserts that as these cases
involved and resolved “the same or identical issues,” 97 the present case is now
barred by res judicata.
Estrada draws particular attention to the following pronouncement of the
COMELEC Second Division in its January 20, 2010 resolution:
Furthermore, there is absolutely no indication that the executive clemency
exercised by President Arroyo to pardon Former President Estrada was a mere
conditional pardon. It clearly stated that the former president is “restored to his
civil and political rights” and there is nothing in the same which limits this
restoration. The only therein stated that may have some bearing on the supposed
conditions is that statement in the whereas clause thereof that contained the
following: “WHEREAS, Joseph Ejercito Estrada has publicly committed to no
longer seek any elective position or office,” but that is not really a condition but is
merely part of a preliminary statement, referring to what respondent Estrada had
said publicly. There is nothing stated in the dispositive part that it was conditioned
upon said respondent’s purported public commitment. His public statement
cannot, therefore, serve to restrict the operation of, or prevail over the explicit
statement in the executive clemency which restored all of Estrada’s civil and
political rights, including “the right to vote and to be voted for a public office,”
including to the position of the Presidency. This executive clemency granted to the
former President being absolute and unconditional and having been accepted by
him, the same can no longer be revoked or be made subject to a condition. 98
b. The 2010 disqualification cases and Risos-Vidal’s
petition are anchored on different causes of action and, hence, involve
different issues and subject matters
Res judicata was discussed in Pryce Corporation v. China Banking
Corporation99 as follows:
According to the doctrine of res judicata, “a final judgment or decree on the
merits by a court of competent jurisdiction is conclusive of the rights of the parties
or their privies in all later suits on all points and matters determined in the former
suit.”
The elements for res judicata to apply are as follows: (a) the former judgment
was final; (b) the court that rendered it had jurisdiction over the subject matter
and the parties; (c) the judgment was based on the merits; and (d) between the
first and the second actions, there was an identity of parties, subject matters, and
causes of action.
Res judicata embraces two concepts: (1) bar by prior judgment and (2)
conclusiveness of judgment.
Bar by prior judgment exists “when, as between the first case where the
judgment was rendered and the second case that is sought to be barred, there is
identity of parties, subject matter, and causes of action.”
On the other hand, the concept of conclusiveness of judgment finds application
“when a fact or question has been squarely put in issue, judicially passed upon,
and adjudged in a former suit by a court of competent jurisdiction.” This principle
only needs identity of parties and issues to apply.100
The 2010 disqualification cases filed against Estrada in connection with his
2010 bid for the presidency do not bar the present case on account of res judicata.
For one, the 2010 disqualification cases filed by Atty. Evilio C. Pormento and
Mary Lou B. Estrada involved issues and were anchored on causes of action that
are markedly different from those in the present case. These cases were anchored
on the constitutional prohibition against a President’s reelection, as provided by
Article VII, Section 4 of the 1987 Constitution,101 and the additional ground that
Estrada was a nuisance
_______________
100 Id.
 101 Sec. 4. The President and the Vice President shall be elected by direct
vote of the people for a term of six years which shall begin at noon on the thirtieth
day of June next following the day of the election and shall end at noon of the same
date, six years thereafter. The President shall not be eligible for any reelection. No
person who has succeeded as President and has served as such for more than four
years shall be qualified for election to the same office at any time.
No Vice President shall serve for more than two successive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of the service for the full term for which he was
elected.
Unless otherwise provided by law, the regular election for President and Vice
President shall be held on the second Monday of May.
The returns of every election for President and Vice President, duly certified
by the board of canvassers of each province or city, shall be transmitted to the
Congress, directed to the President of the Senate. Upon receipt of the certificates
of canvass, the President of the Senate shall, not later than thirty days after the
day of the election, open all the certificates in the presence of the Senate and the
House of Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes.
414
414 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
candidate. To the contrary, the present case is anchored on Estrada’s
conviction for plunder which carried with it the accessory penalty of perpetual
absolute disqualification and invokes Section 40 of the Local Government Code, as
well as Section 12 of the Omnibus Election Code.
The COMELEC Second Division, summarizing the circumstances of the
petition for disqualification subject of SPA No. 09-028 (DC), filed by Atty. Evilio C.
Pormento, stated:
Petitioner Evilio C. Pormento filed the first case against Respondent Joseph
Ejercito Estrada on December 05, 2009. It was properly titled an “Urgent Petition
for Disqualification as Presidential Candidate.” This Petition is premised on the
specific provision of Article VII, Section 4 of the 1987 Constitution a portion of
which stated that: x x x the President shall not be eligible for any
reelection.”102 (Emphasis in the original)
On the other hand, summarizing the circumstances of the petition filed by
Mary Lou B. Estrada, the COMELEC Second Division stated:
The second of the above entitled cases was filed on December 12, 2009, by
Petitioner Mary Lou Estrada alleging that the name of Joseph M. Ejercito Estrada
might cause confusion to her prejudice. She filed a “Petition to
_______________
The person having the highest number of votes shall be proclaimed elected, but
in case two or more shall have an equal and highest number of votes, one of them
shall forthwith be chosen by the vote of a majority of all the Members of both
Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
The Supreme Court, sitting En Banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice
President, and may promulgate its rules for the purpose.
102 Rollo, p. 619.
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Disqualify Estrada Ejercito Joseph M. from running as President due to
Constitutional Disqualification and Creating Confusion to the Prejudice of
Estrada, Mary Lou B.” and prayed for the disqualification of the Respondent and
to have his Certificate of Candidacy (COC) cancelled. She also made reference to
the Respondent being a “Nuisance Candidate.”103 (Emphasis supplied)
That these disqualification cases involved issues and invoked causes of action
that are different from those in this case is evident in the recital of issues in the
COMELEC Second Division’s January 20, 2010 resolution:
THE ISSUES IN THE TWO CASES
(a) Whether or not Respondent Joseph Ejercito Estrada is qualified to be a
candidate for the position of President of the Philippines in the forthcoming
elections on May 10, 2010, despite the fact that he had previously been elected to,
assumed and discharged the duties of, the same position;
(b) Whether or not, former President Estrada may be considered a nuisance
candidate in view of the Constitutional prohibition against any reelection of a
former President who has previously elected and had assumed the same
position.104
(Emphasis supplied)
This, too, is evident, in the resolution’s introductory paragraphs:
At the very core of the controversy involved in these two cases which stands
like a stratospheric totem pole is the specific provision under Sec. 4 of Article VII
of the 1987 Constitution which states:
....
This Commission (Second Division) is confronted with the dilemma of deciding
a brewing controversy considering the above Constitutional provision which
prohibits reelection of “the President”; that is, whether former President Joseph
Ejercito “Erap” Estrada may or may not be allowed to run in the coming May 2010
elections for the same position of the President of the Republic of the
Philippines?105 (Emphasis supplied)
Whatever pronouncement the COMELEC Second Division made on the matter
of Estrada’s conviction for plunder and subsequent pardon was thus a superfluity.
Ultimately, it was unnecessary to the resolution of the issues involved in the
disqualification cases filed by Atty. Evilio C. Pormento and Mary Lou B. Estrada.
It was nothing more than obiter dictum.
Another disqualification case filed in connection with Estrada’s 2010 bid for
the presidency, which, however, Estrada did not cite in his averments was Rev.
Elly Velez B. Lao Pamatong, ESQ, petitioner, v. Joseph Ejercito Estrada and Gloria
Macapagal-Arroyo, SPA No. 09-024 (DC). This case was similarly focused on the
constitutional prohibition against a President’s reelection and on the allegation
that Estrada was a nuisance candidate:
The bone of contention of this controversy revolves around the interpretation
of the specific provisions of Sec. 4 of Article VII of the 1987 Constitution. . . .106
Its recital of issues reads:
From the foregoing, the Commission (Second Division) hereby rules on the
following issues:
(a) Can a former elected President be qualified to become a Presidential
Candidate and be elected again to the same position he or she previously occupied?
(b) May President Arroyo being a sitting President be allowed to run for any
elected position such as a member of the House of Representatives?
(c) Are President Arroyo and Former President Estrada nuisance
candidates?107
That the 2010 disqualification cases were anchored on a constitutional
provision relating to the executive branch of government, while the present case is
anchored on the provisions of the Local Government Code on the disqualification
of candidates for local elective offices, makes evident that the former entailed a
different subject matter. While the 2010 disqualification cases relate to Estrada’s
bid for the presidency, the present case relates to his bid to become Mayor of the
City of Manila.
c. There was no final judgment on the merits arising from the 2010
disqualification cases
Not only do the 2010 disqualification cases involve different issues, causes of
action, and subject matters, but these disqualification cases do not even have a
final judgment on the merits to speak of.
Cabreza, Jr. v. Cabreza108 explains the concept of a “judgment on the merits”
as follows:
A judgment may be considered as one rendered on the merits “when it
determines the rights and liabilities of the parties based on the disclosed facts,
irrespective of formal, technical or dilatory objections”; or when the judgment is
rendered “after a determination of which party is right, as distinguished from a
judgment rendered upon some preliminary or formal or merely technical point.”109
Following the denial of his motion for reconsideration by the COMELEC En
Banc, Atty. Evilio C. Pormento sought relief from this court via a petition
for certiorari, insisting that Estrada was barred by Article VII, Section 4 of the
Constitution from making a second bid for the presidency. This petition was
docketed as G.R. No. 191988 and entitled Atty. Evilio C. Pormento, petitioner, v.
Joseph “Erap” Ejercito Estrada and Commission on Elections, respondents.
As noted by this court in its August 31, 2010 resolution in Pormento v.
Estrada,110 the May 10, 2010 elections proceeded without Estrada having been
removed from the list of candidates or otherwise being restricted in his candidacy
as “under the Rules of Court, the filing of such petition would not stay the
execution of the judgment, final order or resolution of the COMELEC that is
sought to be reviewed[; moreover,] petitioner did not even pray for the issuance of
a temporary restraining order or writ of preliminary injunction.”111 Thus, Estrada
was able to participate in the May 10, 2010 presidential elections. He, however,
only obtained the second highest number of votes and was, thus, not proclaimed
winner.
Not having been elected President for a second time, this court ruled that Atty.
Evilio C. Pormento’s petition had become moot and academic. Thus, it was denied
due course and dismissed:
Private respondent was not elected President the second time he ran. Since the
issue on the proper interpretation of the phrase “any reelection” will be premised
on a person’s second (whether immediate or not) election as President, there is no
case or controversy to be resolved in this case. No live conflict of legal rights exists.
There is in this case no definite, concrete, real or substantial controversy that
touches on the legal relations of parties having adverse legal interests. No specific
relief may conclusively be decreed upon by this Court in this case that will benefit
any of the parties herein. As such, one of the essential requisites for the exercise
of the power of judicial review, the existence of an actual case or controversy, is
sorely lacking in this case.
As a rule, this Court may only adjudicate actual, ongoing controversies. The
Court is not empowered to decide moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the result as to the thing in
issue in the case before it. In other words, when a case is moot, it becomes
nonjusticiable.
An action is considered “moot” when it no longer presents a justiciable
controversy because the issues involved have become academic or dead or when
the matter in dispute has already been resolved and hence, one is not entitled to
judicial intervention unless the issue is likely to be raised again between the
parties. There is nothing for the court to resolve as the determination thereof has
been overtaken by subsequent events.
Assuming an actual case or controversy existed prior to the proclamation of a
President who has been duly elected in the May 10, 2010 elections, the same is no
longer true today. Following the results of that elections, private respondent was
not elected President for the second time. Thus, any discussion of his “reelection”
will simply be hypothetical and speculative. It will serve no useful or practical
purpose.
Accordingly, the petition is denied due course and is hereby DISMISSED.
SO ORDERED.112 (Citations omitted)
From these, it is plain to see that the substance of Estrada’s qualification (vis-
à-vis Article VII, Section 4 of the 1987 Constitution) was not at all discussed. This
court even explicitly stated that were it to make a pronouncement on that matter,
this pronouncement would amount to nothing more than a nonbinding opinion:
What is the proper interpretation of the following provision of Section 4, Article
VII of the Constitution: “[t]he President shall not be eligible for any reelection?”
The novelty and complexity of the constitutional issue involved in this case
present a temptation that magistrates, lawyers, legal scholars and law students
alike would find hard to resist. However, prudence dictates that this Court exercise
judicial restraint where the issue before it has already been mooted by subsequent
events. More importantly, the constitutional requirement of the existence of a
“case” or an “actual controversy” for the proper exercise of the power of judicial
review constrains us to refuse the allure of making a grand pronouncement that,
in the end, will amount to nothing but a nonbinding opinion.113
Estrada, though adjudged by the COMELEC Second Division and
COMELEC En Banc to be qualified for a second bid at the presidency, was never
conclusively adjudged by this court to be so qualified. The 2010 disqualification
cases reached their conclusion not because it was determined, once and for all, that
Estrada was not disqualified, but because — with Estrada’s loss in the elections —
there was no longer a controversy to resolve. There was no “determin[ation of] the
rights and liabilities of the parties based on the disclosed facts, irrespective of
formal, technical or dilatory objections”;114 neither was there “a determination of
which party is right.” 115 While the 2010 disqualification cases may have reached
their literal end or terminal point, there was no final judgment on the merits.
VII
Estrada was disqualified from
running for Mayor of the City of
Manila in the May 13, 2013
elections and remains disqualified
from running for any elective post
a. Joseph Ejercito Estrada: convicted, disqualified, and pardoned
We now come to the core of this case, that is, whether Estrada was qualified to
run for Mayor of the City of Manila.
It is not disputed that Estrada was found guilty beyond reasonable doubt and
convicted for plunder by the Sandiganbayan. This conviction stands unreversed
and unmodified, whether by the Sandiganbayan, on reconsideration, or by this
court, on appeal. By this conviction, Estrada was sentenced to suffer the accessory
penalty of perpetual absolute disqualification. Per Article 30 of the Revised Penal
Code, this accessory penalty produces the effect of, among others, “[t]he
deprivation of the right to vote in any election for any popular elective office or to
be elected to such office.”116
Apart from the specific penalty of perpetual absolute disqualification meted on
Estrada on account of his conviction, statutory provisions provide for the
disqualification from elective public office of individuals who have been convicted
for criminal offenses involving moral turpitude 117 and/or entailing a sentence of a
defined duration of imprisonment.
Section 12 of the Omnibus Election Code provides for disqualifications for
elective offices in general:
Section 12. Disqualifications.—Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion or for any offense for which
he has been sentenced to a penalty of more than eighteen months or for
a crime involving moral turpitude, shall be disqualified to be a candidate
and to hold any office, unless he has been given plenary pardon or granted
amnesty.
This [sic] disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five years
from his service of sentence, unless within the same period he again becomes
disqualified. (Emphasis supplied)
_______________
117 See Teves v. Commission on Elections, 604 Phil. 717, 728-729; 587 SCRA
1, 12-13 (2009) [Per J. Ynares-Santiago, En Banc], citing Dela Torre v.
Commission on Elections, 327 Phil. 1144, 1150-1151; 258 SCRA 483, 487-488
(1996) [Per J.Francisco, En Banc].
“It (moral turpitude) implies something immoral in itself, regardless of the fact
that it is punishable by law or not. It must not be merely mala prohibita, but the
act itself must be inherently immoral. The doing of the act itself, and not its
prohibition by statute fixes the moral turpitude. Moral turpitude does not,
however, include such acts as are not of themselves immoral but whose illegality
lies in their being positively prohibited.”
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Risos-Vidal vs. Commission on Elections
Section 40 of the Local Government Code provides for disqualifications for local
elective offices in particular:
SECTION 40. Disqualifications.—The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same right after the effectivity
of this Code; and
(g) The insane or feeble-minded. (Emphasis supplied)
It is with this backdrop of, on the one hand, Estrada’s conviction for plunder
(with its concomitant penalty of absolute perpetual disqualification), as well as the
cited statutory disqualifications, and, on the other, the pardon granted to Estrada,
that this court must rule on whether Estrada was qualified to run for Mayor of
Manila in the May 13, 2013 elections.
b. The power to grant clemency: an executive function
 The power to grant pardons, along with other acts of executive clemency, is
vested in the President of the Philippines by Article VII, Section 19 of the 1987
Constitution:
Section 19. Except in cases of impeachment, or as otherwise provided in this
Constitution, the President may grant reprieves, commutations, and pardons, and
remit fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the concurrence of a
majority of all the Members of the Congress.
The recognition that the power to grant clemency is lodged in the executive has
been made since the earliest days of the Philippines as a republic. It “is founded
on the recognition that human institutions are imperfect and that there are
infirmities, deficiencies or flaws in the administration of justice. The power exists
as an instrument or means for correcting these infirmities and also for mitigating
whatever harshness might be generated by a too strict an application of the law.”118
Our constitutional history is a cumulative affirmation of the fundamental
conception of the power to pardon as an executive power.
Provisions from Title VIII of the Malolos Constitution of 1899 read:
Article 67. Apart from the powers necessary to execute laws, it is the duty of
the President of the Republic to:
_______________
118 J. Padilla, Dissenting Opinion in Llamas v. Orbos, 279 Phil. 920, 946; 202
SCRA 844, 866 (1991) [Per J. Paras, En Banc], citing the comment by Joaquin G.
Bernas, S.J., Revised 1973 Philippine Constitution, part 1, p. 228 (1983).
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Risos-Vidal vs. Commission on Elections
1. Confer civil and military employment in accordance to the law;
2. Appoint Secretaries of Government;
3. Direct diplomatic and commercial relations with other powers;
4. Ensure the swift and complete administration of justice in the entire
territory;
5. Pardon lawbreakers in accordance to the law, subject to the provisions
relating to the Secretaries of Government;
6. Preside over national solemnities, and welcome accredited envoys and
representatives of foreign powers.
Article 68. The President of the Republic needs to be authorized by a
special law:
1. To transfer, cede or exchange any part of Philippine territory;
2. To incorporate any other territory into the Philippines;
3. To allow foreign troops in Philippine territory;
4. To ratify treaties of offensive and defensive alliance, special commercial
treaties, treaties that stipulate subsidies to a foreign power, and any other treaty
that compels Filipinos to perform any individual obligation;
In no case can the confidential articles of a treaty nullify those that are public.
5. To grant general amnesties and pardons;
6. To mint money. (Emphasis supplied)
Contrasting the provisions of the Malolos Constitution with the present
iteration of the pardoning power, it is particularly notable that the power, as
provided for in 1899, is deferential to the legislative branch of government. While
recognizing the pardoning power as ultimately one for the President to wield, it
remained subject to legislative imprimatur.
Aided by the lens of history, this is most effectively understood in the context
of a “conflict between people, on one hand, who were determined to secure the kind
of freedom and economic benefits never enjoyed by them before, and groups, on the
other, who wanted to maintain a social status and economic privilege inherited
from way back or recently acquired by the displacement of elements formerly
controlling the destiny of the colony.”119 The latter — ilustrados — were the
driving force behind the adoption of a constitution, and they endeavored “to make
the legislature the most powerful unit in the government.”120
The adoption of organic acts under the auspices of American rule enabled the
assimilation of some American constitutional principles. Not least of these is the
grant to the executive of the power to pardon. The Constitution of the United
States of America includes the grant of the pardoning power in the recital of the
President’s powers:
Article II, Section 2.
The President shall be Commander-in-Chief of the Army and Navy of the
United States, and of the Militia of the several States, when called into the actual
Service of the United States; he may require the Opinion, in writing, of the
principal Officer in each of the executive Departments, upon any Subject relating
to the Duties of their respective Offices, and he shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in Cases of
Impeachment.
....
Thus, the Jones Law of 1916 provides:
_______________
119 Cesar Adib Majul, Mabini and the Philippine Revolution,
p. 165 (1960).
120 Id., at p. 171.
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Risos-Vidal vs. Commission on Elections
Section 21. The Governor-General
(b) Powers and duties.—. . . . He is hereby vested with the exclusive power
to grant pardons and reprieves and remit fines and forfeitures, and may
veto any legislation enacted as herein provided. . . .
As against the Malolos Constitution, the Jones Law makes no reference to the
need for legislative consent, whether a priori or a posteriori, for the exercise of the
pardoning power. Equally notable, the pardoning power is mentioned in the same
breath (i.e., the same sentence) as the veto power — a power that delineates the
relation of the executive branch with the legislative branch.
 With the onset of the Commonwealth and en route to independence, the 1935
Constitution affirmed that the power to pardon is executive in nature. Article VII,
Section 11(6) of the 1935 Constitution reads:
Section 11. . . .
(6) The President shall have the power to grant reprieves, commutations, and
pardons, and remit fines and forfeitures, after conviction, for all offenses, except in
cases of impeachment, upon such conditions and with such restrictions and
limitations as he may deem proper to impose. He shall have the power to grant
amnesty with the concurrence of the National Assembly.
A recollection of the proceedings of the Constitutional Convention reveals
attempts “to limit the absolute character of the pardoning power of the
Executive”:121
It was also generally held that, as it was under the Jones Law and in other
countries, the pardoning power should be vested in the Executive, although there
was a
_______________
121 Jose M. Aruego, The Framing of the Philippine Constitution (1949).
428
428 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
difference of opinion with respect to the authority to exercise the power to grant
amnesty. There were many proposals, however, intended to limit the absolute
character of the pardoning power of the Executive. Of them were the proposal in
the report of the committee on executive power and in the first draft of the
Constitution to the effect that pardon should be granted to a person only after his
conviction; the Galang amendment embodying a proposal in the report of the
committee on executive power to the effect that the Chief Executive could grant
pardon to a person only after the latter had served part of the sentence imposed
upon him, except in cases where the convicting court should recommend executive
clemency, when the same could be exercised even prior to the service of the
sentence; and the Sanvictores amendment providing that no pardon should,
without the recommendation of the Supreme Court, be granted until the prisoner
should have served at least one-half of the minimum sentence imposed.
....
The Galang amendment and the Sanvictores amendment would go further by
requiring that no person, even if already convicted, should be pardoned unless he
had served partially his sentence. The Galang amendment would permit executive
clemency even before the commencement of the service of the sentence, upon the
recommendation of the convicting court; and the Sanvictores amendment, upon
the recommendation of the Supreme Court. . . .122
As will be gleaned from the final text of the 1935 Constitution, the Galang and
Sanvictores amendments were both defeated. Thus was affirmed the executive
nature of the power to pardon.
The 1943 Constitution, adopted in the interlude of the Second World War and
the Japanese occupation, echoed the lan-
_______________
122 Id., at pp. 436-437.
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guage of the 1935 Constitution on the executive nature of the pardoning power.
The text of Article II, Section 13 of the 1943 Constitution is substantially similar
with its counterpart in the 1935 Constitution except for the non-mention of
impeachment as beyond the coverage of pardoning power:
Section 13. The President shall have the power to grant reprieves,
commutations and pardons, and remit fines and forfeitures, after conviction, for
all offenses, upon such conditions and with such restrictions and limitations as he
may deem proper to impose. He shall have the power to grant amnesty with the
concurrence of the National Assembly.
Like the Jones Law, but unlike the 1935 and 1943 Constitutions, the 1973
Constitution (as amended) dispensed with the requirement of prior conviction. The
1973 Constitution, adopted during the rule of President Ferdinand E. Marcos, is
characteristic of a strong executive. Article VII, Section 11 of the 1973 Constitution
provides:
Section 11. The President may, except in cases of impeachment, grant
reprieves, commutations and pardons, remit fines and forfeitures and, with the
concurrence of the Batasang Pambansa, grant amnesty.
From the grant of the power made by Section 21(b) of the Jones Law of 1916 to
the present, the 1987 Constitution, the shifts in the grant to the executive of the
power to extend clemency has mainly been in the matter of requiring or dispensing
with conviction as a condition precedent for the exercise of executive clemency.
The present, the 1987 Constitution, requires prior conviction. Nevertheless, it
retains the fundamental regard for the pardoning power as executive in nature.
Jurisprudence dating to 1991123 noted how the 1986 Constitutional Commission
_______________
123 Llamas v. Orbos, supra note 118.
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430 SUPREME COURT REPORTS ANNOTATED
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rejected a proposal to render the coverage of the pardoning power susceptible
to legislative interference, particularly in matters relating to graft and corruption.
Likewise, jurisprudence as recent as 2007124 clarified that a court cannot preempt
the grant of executive clemency.
In addition to restoring the requirement of prior conviction, the 1987
Constitution now includes the phrase “as otherwise provided in this Constitution.”
The 1987 Constitution, in Article VII, Section 19, enumerates the acts or
means through which the President may extend clemency: (1) reprieve, or “the
deferment of the implementation of the sentence for an interval of time”;125 (2)
commutation, which “refers to the reduction of the duration of a prison sentence of
a prisoner”;126 (3) remission of fines and forfeitures; (4) pardon; and (5) amnesty.
“[P]ardon is of British origin, conceived to temper the gravity of the King’s
wrath.”127 It is “an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual, on whom it is bestowed, from
the punishment the law inflicts for a crime he has committed. It is the private,
though official act of the executive magistrate, delivered to the individual for whose
benefit it is intended, and not communicated officially to the Court. . . . A pardon
is a deed, to the validity of which delivery is essential,
_______________
124 People v. Rocha, 558 Phil. 521, 538-539; 531 SCRA 761, 778 (2007)
[Per J.Chico-Nazario, Third Division], citing Joaquin G. Bernas, The 1987
Constitution of the Republic of the Philippines, A Commentary, p. 935 (2003).
125 Implementing Rules and Regulations of Act No. 4103, the Indeterminate
Sentence Law, Sec. 2(n).
126 Implementing Rules and Regulations of Act No. 4103, the Indeterminate
Sentence Law, Sec. 2(o).
127 Monsanto v. Factoran, Jr., 252 Phil. 192, 198; 170 SCRA 190, 196 (1989)
[Per CJ. Fernan, En Banc].
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and delivery is not complete without acceptance.”128 (Emphasis supplied)
Pardon and amnesty have been distinguished as follows:
Pardon is granted by the Chief Executive and as such it is a private actwhich
must be pleaded and proved by the person pardoned, because the courts take no
notice thereof; while amnesty by Proclamation of the Chief Executive with the
concurrence of Congress, and it is a public act of which the courts should take
judicial notice. Pardon is granted to one after conviction; while amnesty is granted
to classes of persons or communities who may be guilty of political offenses,
generally before or after the institution of the criminal prosecution and sometimes
after conviction. Pardon looks forward and relieves the offender from the
consequences of an offense of which he has been convicted, that is, it abolishes or
forgives the punishment, and for that reason it does “not work the restoration
of the rights to hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon,” and it “in no case
exempts the culprit from the payment of the civil indemnity imposed upon him by
the sentence.” While amnesty looks backward and abolishes and puts into oblivion
the offense with which he is charged that the person released by amnesty stands
before the law precisely as though he had committed no offense.129 (Emphasis
supplied, citations omitted)
c. Pardon and its effects: forgiveness but not forgetfulness
_______________
128 Id., at pp. 198-199; p. 196, citing United States v. Wilson, 7 Pet. 160, 160-
1, cited in Joaquin G. Bernas, The 1973 Philippine Constitution, Notes and Cases,
part I, p. 355 (1974).
129 Barrioquinto v. Fernandez, 82 Phil. 642, 646-647 (1949) [Per J. Feria, En
Banc].
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432 SUPREME COURT REPORTS ANNOTATED
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Estrada argues that pardon is characterized by what he refers to as the
“forgive-and-forget rule.”130 He cites several decisions rendered in the United
States131 (chiefly, the 1866, post-Civil War decision in Ex parte Garland) and
insists that “pardon not merely releases the offender from the punishment . . . but
that it obliterates in legal contemplation the offense itself”132 and that it “forever
closes the eyes of the court.”133 Citing this court’s decisions in Cristobal v.
Labrador134 and in Pelobello v. Palatino,135 Estrada asserts that pardon “blots out
of existence the guilt, so that in the eye of the law the offender is as innocent as if
he had never committed the offence . . . it makes him, as it were, a new man, and
gives him new credit and capacity.”136
Estrada is in grave error for insisting on what he has dubbed as the “forgive-
and-forget rule.”
In Monsanto v. Factoran,137 this court repudiated the pronouncements made
by Cristobal and Pelobello, as well as reliance on Garland, on the nature and
effects of pardon:
In Pelobello v. Palatino, we find a reiteration of the stand consistently adopted
by the courts on the various consequences of pardon: “x x x we adopt the broad
view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that
subject to the limitations imposed by the Constitution, the pardoning power cannot
be restricted or controlled by legislative action; that an absolute pardon not only
blots out the crime committed but
_______________
130 Rollo, p. 1793.
131 Ex parte Garland, 71 U.S. 833 (1866); Biddle v. Perovich, 274 U.S. 480
(1927); Ex parte Grossman, 267 U.S. 87 (1925); Carlisle v. U.S., 83 U.S. 147 (1872).
132 Rollo, p. 1794, citing Carlisle v. United States, id., at p. 151.
133 Id.
134 71 Phil. 34 (1940) [Per J. Laurel, En Banc].
135 72 Phil. 441 (1940) [Per J. Laurel, En Banc].
136 Rollo, pp. 1738-1739.
137 Supra note 127.
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removes all disabilities resulting from the conviction. x x x (W)e are of the
opinion that the better view in the light of the constitutional grant in this
jurisdiction is not to unnecessarily restrict or impair the power of the Chief
Executive who, after an inquiry into the environmental facts, should be at liberty
to atone the rigidity of the law to the extent of relieving completely the party x x x
concerned from the accessory and resultant disabilities of criminal conviction.”
The Pelobello v. Palatino and Cristobal v. Labrador cases, and several others
show the unmistakable application of the doctrinal case of Ex Parte Garland,
whose sweeping generalizations to this day continue to hold sway in our
jurisprudence despite the fact that much of its relevance has been downplayed by
later American decisions.
Consider the following broad statements:
“A pardon reaches both the punishment prescribed for the offense and the guilt
of the offendor; and when the pardon is full, it releases the punishment and blots
out of existence the guilt, so that in the eye of the law the offender is as innocent
as if he had never committed the offense. If granted before conviction, it prevents
any of the penalties and disabilities, consequent upon conviction, from attaching;
if granted after conviction, it removes the penalties and disabilities and restores
him to all his civil rights; it makes him, as it were, a new man, and gives him a
new credit and capacity.”
Such generalities have not been universally accepted, recognized or
approved. The modern trend of authorities now rejects the unduly broad language
of the Garland case (reputed to be perhaps the most extreme statement which has
been made on the effects of a pardon). To our mind, this [i.e., the rejection of
Garland] is the more realistic approach. While a pardon has generally been
regarded as blotting out the existence of guilt so that in the eye of the law the
offender is as innocent as though he never committed the offense, it does not oper-
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434 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
ate for all purposes. The very essence of a pardon is forgiveness or remission of
guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime
and the conviction thereof. It does not wash out the moral stain. It involves
forgiveness and not forgetfulness.
The better considered cases regard full pardon (at least one not based on the
offender’s innocence) as relieving the party from all the punitive consequences of
his criminal act, including the disqualifications or disabilities based on the finding
of guilt. But it relieves him from nothing more. “To say, however, that the offender
is a ‘new man,’ and ‘as innocent as if he had never committed the offense’; is to
ignore the difference between the crime and the criminal. A person adjudged guilty
of an offense is a convicted criminal, though pardoned; he may be deserving of
punishment, though left unpunished; and the law may regard him as more
dangerous to society than one never found guilty of crime, though it places no
restraints upon him following his conviction.”138 (Emphasis and underscoring
supplied, citations omitted)
Estrada has made much of how Monsanto centered on the issue of the need for
a new appointment of a pardoned officer seeking to be reinstated to her former
position. He posits that Monsanto could not be controlling in this case, as what is
at issue here is qualification for elective public office.139
This is but a vain attempt to split hairs. It is clear from the previously quoted
discussion in Monsanto that there was an unequivocal consideration by this court
of the nature and effects of pardon. This discussion laid the premises for the
ultimate resolution of the dispute and was indispensable to the conclusions this
court reached. As against Monsanto, Estrada would have this court rely on a
decision, which was rendered nearly a century and a half ago by a court outside of
this jurisdiction (i.e., Ex parte Garland), and which, this court
_______________
138 Id., at pp. 199-201.
139 Rollo, p. 1771.
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has observed to be against the grain of contemporary authorities. In addition,
Estrada would have us rely on jurisprudence which themselves depend on the
same archaic and foreign decision. To do, as Estrada suggests, would be to indulge
an absurdity. Estrada effectively invites this court to irrationality and to arrive at
a conclusion resting on premises that have been roundly renounced.
In any case, from the preceding discussions, two points are worthy of particular
emphasis:
I. Pardon is a private, though official, act of the executive. Proceeding from the
power to execute laws, it merely evinces the executive’s choice to decline from
enforcing punishment so as to mollify penal misery.
II. Pardon does not erase the moral stain and the fact of conviction. It retains
the law’s regard for a convict “as more dangerous to society than one never found
guilty of a crime”;140 the convict remains “deserving of punishment” though left
unpunished.141
It is with the illumination of this fundamental notion of pardon as a ‘private
act that does not erase the moral stain and the fact of conviction’ that this court
must proceed to make a determination of Estrada’s qualification.
VIII
The exercise of pardon:
limitations and prescriptions
a. Articles 36 and 41 of the Revised Penal
_______________
140 Monsanto v. Factoran, Jr., supra note 127 at p. 201; p. 198, citing State v.
Cullen, 127 P. 2d 257, cited in 67 C.J.S. 577, note 18.
141 Id., citing State v. Cullen, id.
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436 SUPREME COURT REPORTS ANNOTATED
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Code do not abridge or diminish the pardoning power of the President
Article VII, Section 19 of the 1987 Constitution provides two (2) limitations on
the President’s exercise of the power to pardon: first, it can only be given after final
conviction; and second, it cannot be exercised “in cases of impeachment, or as
otherwise provided in this Constitution.” Elsewhere in the Constitution, Article
IX, C, Section 5 provides that: “No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and regulations shall be granted by
the President without the favorable recommendation of the Commission [on
Elections].”
Outside of the Constitution, the Revised Penal Code contains provisions
relating to pardon.
Article 36 of the Revised Penal Code provides that: “A pardon shall in no case
exempt the culprit from the payment of the civil indemnity imposed upon him.”
The same Article 36 prescribes that for pardon to effect the restoration of
the rights of suffrage and to hold public office, “such rights [must] be expressly
restored by the terms of the pardon.”
Also on suffrage and/or the rights to vote for and be elected to public office,
Articles 40 to 43 of the Revised Penal Code provide that the penalties of perpetual
absolute disqualification, temporary absolute disqualification, perpetual special
disqualification, and perpetual special disqualification on suffrage, which attach
as accessory penalties to death, reclusion perpetua, reclusion temporal, prisión
mayor and prisión correccional, as the case may be, shall still be suffered by the
offender even though pardoned as to the principal penalty, “unless . . . expressly
remitted in the pardon”:
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ARTICLE 40. Death — Its Accessory Penalties.—The death penalty, when it
is not executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty years
following the date of sentence, unless such accessory penalties have been expressly
remitted in the pardon.
ARTICLE 41. Reclusion Perpetua and Reclusion Temporal — Their
accessory penalties.—The penalties of reclusion perpetua and reclusion
temporal shall carry with them that of civil interdiction for life or during the period
of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.
ARTICLE 42. Prisión Mayor — Its Accessory Penalties.—The penalty
of prisión mayor shall carry with it that of temporary absolute disqualification and
that of perpetual special disqualification from the right of suffrage which the
offender shall suffer although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
ARTICLE 43. Prisión Correccional — Its Accessory Penalties.—The penalty
of prisión correccional shall carry with it that of suspension from public office, from
the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment
shall exceed eighteen months. The offender shall suffer the disqualification
provided in this article although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon. (Emphasis supplied)
Citing the same cases of Cristobal, Pelobello, and Garland, Estrada argues
that Articles 36 and 41 of the Revised Penal Code violate the Constitution in
requiring that the restoration of the rights of suffrage or to otherwise vote for and
be elected to public office must be made expressly. Specifically, he
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438 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
claims that these provisions “abridge or diminish the pardoning power of the
President.”142
This court has previously acknowledged, in Llamas v. Orbos,143that the 1986
Constitutional Commission rejected a proposal to include in Article VII, Section
19, a statement to the effect that “the power to grant executive clemency for
violation of corrupt practices laws may be limited by legislation.” Thus, this court
concluded that “the President’s executive clemency powers may not be limited in
terms of coverage, except as already provided in the Constitution”:
During the deliberations of the Constitutional Commission, a subject of
deliberations was the proposed amendment to Art. VII, Sec. 19 which reads as
follows: “However, the power to grant executive clemency for violation of corrupt
practices laws may be limited by legislation.” The Constitutional Commission,
however, voted to remove the amendment, since it was in derogation of the powers
of the President. As Mr. Natividad stated:
“I am also against this provision which will again chip more powers from the
President. In case of other criminals convicted in our society we extend probation
to them while in this case, they have already been convicted and we offer mercy.
The only way we can offer mercy to them is through this executive clemency
extended to them by the President. If we still close this avenue to them, they would
be prejudiced even worse than the murderers and the more vicious killers in our
society. . . .”
The proposal was primarily intended to prevent the President from protecting
his cronies. Manifestly, however, the Commission preferred to trust in the
discretion of Presidents and refrained from putting additional limi-
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Risos-Vidal vs. Commission on Elections
tations on his clemency powers. (II RECORD of the Constitutional
Commission, pp. 392, 418-419, 524-525)
It is evident from the intent of the Constitutional Commission, therefore, that
the President’s executive clemency powers may not be limited in terms of coverage,
except as already provided in the Constitution, that is, “no pardon, amnesty, parole,
or suspension of sentence for violation of election laws, rules and regulations shall
be granted by the President without the favorable recommendation of the
COMELEC.” (Article IX, C, Section 5, Constitution) If those already adjudged
guilty criminally in court may be pardoned, those adjudged guilty administratively
should likewise be extended the same benefit.144
Not only has the coverage of executive clemency been recognized to be beyond
the reach of legislative action, this court has also noted that the matter of whether
the President should actually choose to extend executive clemency to a convict
cannot be preempted by judicial action. Thus, the determination of whether a
convict shall be extended clemency is a decision that is solely for the President to
make:
This Court cannot review, much less preempt, the exercise of executive
clemency under the pretext of preventing the accused from evading the penalty
of reclusion perpetua or from trifling with our judicial system. Clemency is not a
function of the judiciary; it is an executive function. . . .145
The 1987 Constitution’s recital of the instances when pardon may or may not
be exercised and this court’s prior recognition of clemency as an executive function
notwithstanding, Articles 36 and 41 of the Revised Penal Code could not be
144 Id., at pp. 937-938; pp. 858-859.
145 People of the Philippines v. Rocha, supra note 124, citing Joaquin G.
Bernas, The 1987 Constitution of the Republic of the Philippines, A Commentary,
p. 935 (2003).
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440 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
considered as abridging or diminishing the President’s right to extend
clemency.
To “abridge” or to “diminish” is to shorten, reduce, or lessen.146Further,
“coverage” pertains to scope,147 it refers to “[t]he extent to which something deals
with or applies to something else.”148
Articles 36 and 41 do not reduce the coverage of the President’s pardoning
power. At no point do they say that the President may not grant pardon. They do
not recite instances or areas in which the President’s power to pardon is rendered
nonexistent, or in which the President is otherwise incapable of granting pardon.
Articles 36 and 41 notwithstanding, the only instances in which the President may
not extend pardon remain to be: (1) impeachment cases; (2) cases that have not yet
resulted in a final conviction; and (3) cases involving violations of election laws,
rules, and regulations in which there was no favorable recommendation coming
from the COMELEC. Stated otherwise, the President remains capacitated to grant
a pardon that works to restore the rights of suffrage and/or to hold public office, or
to otherwise remit the penalty of perpetual absolute disqualification.
Articles 36 and 41 refer only to requirements of convention or form. They only
provide a procedural prescription. They are not concerned with areas where or the
instances when the President may grant pardon; they are only concerned
with how he or she is to exercise such power so that no other governmental
instrumentality needs to intervene to give it full effect.
_______________
146 Definition available at <http://www.merriam-webster.com/
dictionary/abridge> and <http://www.merriam-webster.com/dictionary/
diminish>.
147 Definition available at <http://www.merriam-webster.com/
dictionary/coverage>.
148 Definition available at <http://www.oxforddictionaries.com/us/
definition/american_english/coverage>.
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All that Articles 36 and 41 do is prescribe that, if the President wishes to
include in the pardon the restoration of the rights of suffrage and to hold public
office, or the remission of the accessory penalty of perpetual absolute
disqualification, he or she should do so expressly. Articles 36 and 41 only ask that
the President state his or her intentions clearly, directly, firmly, precisely, and
unmistakably. To belabor the point, the President retains the power to make such
restoration or remission, subject to a prescription on the manner by which he or
she is to state it.
This interpretation is consistent with the clear constitutional intention to
grant exclusive prerogative to the President to decide when to exercise such power.
As in this case, any ambiguity invites judicial intervention.
Also, it is a basic precept that “public office is a public trust.”149In contrast,
pardon is a “private, though official act of the executive magistrate, delivered to
the individual for whose benefit it is intended.”150 Given the contrasting natures
of, on the one hand, elective office as a public trust, and, on the other, pardon as a
private act, it “would not be asking too much”151 of the President to be unequivocal
with his or her intentions on restoring a convict’s right not just to vote, but more
so, to be voted for elective public office.
Doing so serves not only a practical purpose but, more importantly, the greater
public interest in not leaving to inference the qualification of a person who is
regarded “as more
_______________
149 Const. (1987), Art. XI, Sec. 1.
150 Monsanto v. Factoran, Jr., supra note 127 at pp. 198-199; p. 196,
citing United States v. Wilson, supra note 128, cited in Joaquin G. Bernas, The
1973 Philippine Constitution, Notes and Cases, part I, p. 355 (1974). See
also Barrioquinto v. Fernandez, supra note 129 at pp. 646-647.
151 J. Padilla, Dissenting Opinion in Monsanto v. Factoran, Jr., id., at p. 206;
p. 204 [Per CJ. Fernan, En Banc].
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442 SUPREME COURT REPORTS ANNOTATED
Risos-Vidal vs. Commission on Elections
dangerous to society”152 but stands to gain from the reposition of public
trust.153 It addresses the “presumptive rule that one who is rendered infamous by
conviction of a felony, or other base offense indicative of moral turpitude, is unfit
to hold public office, as the same partakes of a privilege which the State grants only
to such classes of persons which are most likely to exercise it for the common
good.”154
Pronouncing in express and unmistakable language the restoration of the right
to vote and be voted, therefore, complementsthe private act of pardoning such that
it enables the inclusion of public effects in the private act. It desegregates the
public consequence of enabling the convict with the opportunity to lead the
community by being the occupant of a public office.
 Recall that the manner by which the 1987 Constitution phrases its investiture
on the President of the pardoning power now includes the phrase “as otherwise
provided in this Constitution.” This phrase affirms the imperative of reading and
interpreting the Constitution in its entirety, not taking a provision in isolation.
The pardoning power of the President must, thus, not be divorced from the
Constitution’s injunction that “[p]ublic office is a public trust.”155 Read in harmony
with this injunction, Articles 36 and 41 of the Revised Penal Code impress upon
the President the significance of departing from the purely private consequences
of pardon should he or she stray into the public affair of restoring a convict’s rights
of suffrage and/or to hold public office.
Parenthetically, the Constitution also grants this court jurisdiction to
determine “whether or not there has been a grave
_______________
152 Monsanto v. Factoran, Jr., id., at p. 201; p. 198, citing State v.
Cullen, supranote 140.
153 Id.
154 Romeo Jalosjos v. COMELEC, G.R. No. 205033, June 18, 2013, 698 SCRA
742 [Per J. Perlas-Bernabe, En Banc].
155 Const. (1987), Art. XI, Sec. 1.
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abuse of discretion amounting to . . . excess of jurisdiction on the part of any
branch or instrumentality of the Government.”156 This means that no grant of
constitutional power is immune from review if it is done arbitrarily or without
reason, capriciously, or on the basis of whim. However, this court’s power of review
in the present case is not raised by any party and, thus, not an issue that this court
must decide.
_______________
156 Const. (1987), Art. VIII, Sec. 1(2).
157 Monsanto v. Factoran, Jr., supra note 127 at p. 201; p. 198.
158 Id.
159 203 N.E. 2d 95.
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444 SUPREME COURT REPORTS ANNOTATED
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Lastly, even if it were to be granted that this statement articulated a rule, this
statement, made in 1989, must be deemed to have been abandoned, in light of this
court’s more recent pronouncements — in 1997, in People v. Casido,160 and in 2000,
in People v. Patriarca, Jr.161 — which cited with approval this court’s statement
in Barrioquinto v. Fernandez162 that:
[p]ardon looks forward and relieves the offender from the consequences of an
offense of which he has been convicted, that is, it abolishes or forgives the
punishment, and for that reason it does ‘not work the restoration of the rights to
hold public office, or the right of suffrage, unless such rights be expressly restored
by the terms of the pardon,’ and it ‘in no case exempts the culprit from the payment
of the civil indemnity imposed upon him by the sentence.’163 (Emphasis supplied)
So, too, this statement indicating “inclusion” must be deemed superseded by
this court’s 2013 pronouncement in Romeo Jalosjos v. COMELEC164 which
recognizes that “one who is previously convicted of a crime punishable by reclusion
perpetua or reclusion temporal continues to suffer the accessory penalty of
perpetual absolute disqualification even though pardoned as to the principal
penalty, unless the said accessory penalty shall have been expressly remitted in the
pardon.”165
_______________

(b) Clarifying Monsanto 160 336 Phil. 344; 269 SCRA 360 (1997) [Per J. Davide, Jr., Third Division].
161 395 Phil. 690; 341 SCRA 464 (2000) [Per J. Buena, Second Division].
Monsanto, in the course of repudiating Cristobal, Pelobello, and Garland, 162 Barrioquinto v. Fernandez, supra note 129.
declared that “[t]he better considered cases regard full pardon . . . as relieving the 163 Id., at p. 647, citing Rev. Pen. Code, Art. 36.
party from all the punitive consequences of his criminal act, including the 164 Supra note 154.
disqualifications or disabilities based on the finding of guilt.”157 165 Id., at p. 763.
This “inclusion” should not be taken as authority for concluding that the grant 445
of pardon ipso facto remits the accessory disqualifications or disabilities imposed
VOL. 747, JANUARY 21, 2015 445
on a convict regardless of whether the remission was explicitly stated.
For one, this “inclusion” was not a categorical articulation by this court of a Risos-Vidal vs. Commission on Elections
prevailing rule. It was a statement made only in the course of a comparative survey IX
of cases during which the court manifested a preference for “authorities [that
reject] the unduly broad language of the Garland case.”158 No remission of the penalty of perpetual absolute disqualification
Second, the footnote to this statement indicates that it relied on a case decided and restoration of the rights to vote and be voted for elective public office
by a United States court: Comm. of Met. Dist. Com. v. Director of Civil in Estrada’s pardon
Service.159 Thus, it was never meant as a summation of the controlling principles
in this jurisdiction. It did not account for Articles 36 and 41 of the Revised Penal Having established that the challenge to the validity of Articles 36 and 41 of
Code. the Revised Penal Code must fail, we turn to the pivotal issue of whether, in light
of these statutory provisions, the pardon granted to Estrada effectively restored
his rights to vote and be voted for elective public office, or otherwise remitted his
perpetual absolute disqualification.
It did not.
(a) No express remission and/or restoration; reliance on inference is
improper
The dispositive portion of the pardon extended by former President Gloria
Macapagal-Arroyo to Estrada reads:
IN VIEW HEREOF and pursuant to the authority conferred upon me by the
Constitution, I hereby grant executive clemency to JOSEPH EJERCITO
ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty
of Reclusion Perpetua. He is hereby restored to his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in full,
including all writs and processes issued by the Sandiganbayan in pursuance
hereof, except for the bank account(s) he owned before his tenure as President.
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Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this
pardon shall take effect.166
From the plain text of this disposition, it can be readily seen that there is
no categorical statement actually saying that Estrada’s rights to vote and be voted
for elective public office are restored, or that the penalty of perpetual absolute
disqualification is remitted.
The disposition contains three (3) clauses that delimit the effects of the pardon:
1. The general grant of executive clemency to Estrada (i.e., “I hereby grant
executive clemency to JOSEPH EJERCITO ESTRADA”);
2. The restoration of Estrada’s civil and political rights (i.e., “He is hereby
restored to his civil and political rights”); and
3. The continuing validity of the forfeitures imposed by the Sandiganbayan.
As a cure for the lack of a categorical statement restoring his rights to vote and
be voted for elective public office, or otherwise remitting the penalty of perpetual
absolute disqualification, Estrada argues that the rights to vote and be voted for
elective public office are political rights; hence, “the restoration of Estrada’s right
to seek public office is deemed subsumed when the pardon extended by GMA
expressly restored the civil and political rights of the Public (sic)
Respondent.”167 He asserts that “[s]uch statement is already a substantial if not
full compliance with the requirements of Article 36 of the Revised Penal Code.”168
_______________
166 Rollo, p. 265.
167 Id., at p. 1779.
168 Id.
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Estrada’s use of tentative and indefinite language — such as “deemed
subsumed” and “substantial compliance” — reveals his own acknowledgement that
the restoration and/or remission, if any, in the pardon are not as unequivocal or
as absolutely clear as they could otherwise have been had the pardon simply
stated, for instance, that “the penalty of perpetual absolute disqualification is
hereby removed.”
Estrada is noticeably compelled to resort to syllogism in order to arrive at the
deductive conclusion that he is qualified to run. He rests his position on an
inference.
This reliance on inference is precisely what the requirement
of expressly stating the restoration or remission seeks to avoid. To be “express” is
to state “directly, firmly, and explicitly.”169 It is synonymous with being
precise.170 On the contrary, to “infer” is to rely on what is implied; it is to
“surmise.”171 Inference is exactly what relying on an express pronouncement does
not entail.
(b) Even the inference that Estrada proffers is laden with fallacies
In any case, even if Estrada’s inferences and reliance on the characterization
of the rights to vote and be voted for elective public office as political rights is to be
indulged, it does not follow that these specific rights have been restored by the
pardon’s genericrestoration of civil and political rights.
The concept of “civil and political rights” both as its own collectivity and in
contrast with other classes of human rights
_______________
169 Definition available at <http://www.merriam-webster.com/
dictionary/express>.
170 Id.
171 Definition available at <http://www.merriam-webster.com/
dictionary/infer>.
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448 SUPREME COURT REPORTS ANNOTATED
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emerged in the aftermath of the Second World War. Its conceptual
development is more effectively understood in the context of the emergence of the
contemporary human rights regime and the efforts at enabling the then nascent
United Nations to “assum[e] the role of guarantor of human rights on a universal
scale”172 consistent with the perceived need that “the individual human being be
placed under the protection of the international community.”173
As Professor Christian Tomuschat discussed in an introductory note to the
International Convention on Civil and Political Rights (ICCPR), the Second World
War revealed that “national governments could gravely fail in their duty to ensure
the life and the liberty of their citizens.”174 Worse, some of these national
governments have themselves “become murderous institutions.”175It was,
therefore, evident “that protective mechanisms at the domestic level alone did not
provide sufficiently stable safeguards.”176
 The historical milieu of the efforts taken to enable the United Nations to
assume the previously mentioned “role of guarantor of human rights on a universal
scale”177 reveals how “civil and political rights” as a concept of distinct rights —
embodied in its own instrument — came to be:
At the San Francisco Conference in 1945, some Latin American countries
requested that a full code of human rights be included in the Charter of the United
Nations itself. Since such an initiative required careful preparation, their motions
could not be successful at that stage. Nonetheless, human rights were embraced
as a matter of principle. The Charter contains references to human
_______________
172 Available at <http://legal.un.org/avl/pdf/ha/iccpr/iccpr_e.pdf>.
173 Id.
174 Id.
175 Id.
176 Id.
177 Id.
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rights in the Preamble, among the purposes of the Organization (Article 1) and
in several other provisions (Articles 13, 55, 62 and 68). Immediately after the
actual setting up of the institutional machinery provided for by the Charter, the
new Commission on Human Rights began its work for the creation of an
International Bill of Rights. In a first step, the Universal Declaration of Human
Rights was drafted, which the General Assembly adopted on 10 December 1948.
In order to make human rights an instrument effectively shaping the lives of
individuals and nations, more than just a political proclamation was needed.
Hence, from the very outset there was general agreement to the effect that the
substance of the Universal Declaration should be translated into the hard legal
form of an international treaty. The General Assembly reaffirmed the necessity of
complementing, as had already been done in the Universal
Declaration, traditional civil and political rights with economic, social and
cultural rights, since both classes of rights were “interconnected and
interdependent.” (see section E of resolution 421 (V) of 4 December 1950) The only
question was whether, following the concept of unity of all human rights, the new
conventional rights should be encompassed in one international instrument or
whether, on account of their different specificities, they should be arranged
according to those specificities. Western nations in particular claimed that
the implementation process could not be identical, economic and social
rights partaking more of the nature of goals to be attained whereas civil
and political rights had to be respected strictly and without any
reservations. It is this latter view that eventually prevailed. By resolution
543 (VI) of 4 February 1952, the General Assembly directed the Commission on
Human Rights to prepare, instead of just one Covenant, two draft treaties; a
Covenant setting forth civil and political rights and a parallel Covenant providing
for economic, social and cultural rights. The Commission completed its work in
1954. Yet it took many years before eventually the political climate was ripe for
the adoption of these two ambitious texts. While both the
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Western and the Socialist States were still not fully convinced of their
usefulness, it was eventually pressure brought to bear upon them from Third
World countries which prompted them to approve the outcome of the protracted
negotiating process. Accordingly, on 16 December 1966, the two Covenants were
adopted by the General Assembly by consensus, without any abstentions
(resolution 2200 [XXI]). Since that time, the two comprehensive human rights
instruments of the United Nations have sailed on different courses.178
Professor Tomuschat further summarizes the provisions of the ICCPR, its
manner of recital of civil and political rights, and the common thread binding the
rights recited in it:
The ICCPR comprises all of the traditional human rights as they are
known from historic documents such as the First Ten Amendments to the
Constitution of the United States (1789/1791) and the French Déclaration
des droits de l’homme et du citoyen (1789). However, in perfect harmony with
its sister instrument, Part I starts out with the right of self-determination which
is considered to be the foundational stone of all human rights (article 1). Part II
(articles 2 to 5) contains a number of general principles that apply across the board,
among them in particular the prohibition on discrimination. Part III enunciates
an extended list of rights, the first of which being the right to life (article 6). Article
7 establishes a ban on torture or other cruel, inhuman or degrading treatment or
punishment, and article 8 declares slavery and forced or compulsory labour
unlawful. Well-balanced guarantees of habeas corpus are set forth in article 9, and
article 10 establishes the complementary proviso that all persons deprived of their
liberty shall be treated with humanity.
Freedom of movement, including the freedom to leave any country, has found
its regulation in article 12. Aliens, who do not enjoy a stable right of sojourn, must
_______________
178 Id.
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as a minimum be granted due process in case their expulsion is envisaged
(article 13). Fair trial, the scope ratione materiae of which is confined to criminal
prosecution and to civil suits at law, has its seat in articles 14 and 15. Privacy, the
family, the home or the correspondence of a person are placed under the protection
of article 17, and the social activities of human beings enjoy the safeguards of
article 18 (freedom of thought, conscience and religion), article 19 (freedom of
expression), article 21 (freedom of assembly), and article 22 (freedom of
association). Going beyond the classic dimension of protection against interference
by State authorities, articles 23 and 24 proclaim that the family and the child are
entitled to protection by society and the State.
Article 25 establishes the right for everyone to take part in the running of the
public affairs of his/her country. With this provision, the ICCPR makes clear that
State authorities require some sort of democratic legitimacy. Finally, article 27
recognizes an individual right of members of ethnic, religious or linguistic
minorities to engage in the cultural activities characteristic of such minorities. No
political rights are provided for. Minorities as such have not been endowed with
any rights of political autonomy.179
Consistent with this concept of civil and political rights as a collectivity of
“traditional human rights as they are known from historic documents” 180 is Karal
Vasak’s conception181 of civil and political rights as “first-generation human
rights.” This is in contrast with economic, social and cultural rights as “second-
generation human rights” and collective-developmen-
_______________
179 Id.
180 Id.
181 See Karel Vasak, “Human Rights: A Thirty-Year Struggle: The Sustained
Efforts to give Force of law to the Universal Declaration of Human Rights,”
UNESCO Courier 30:11, Paris: United Nations Educational, Scientific, and
Cultural Organization, November 1977.
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tal rights as “third-generation human rights.” Vasak’s conception of three
generations of human rights is a deliberate effort to parallel the French Revolution
ideals of liberty, equality, and fraternity, with each generation ordinally reflecting
the three ideals. Thus, “[f]irst-generation, ‘civil-political’ rights deal with liberty
and participation in political life.”182
In our jurisprudence, Simon, Jr. v. Commission on Human Rights183 discussed
the concept of human rights as “so generic a term that any attempt to define it . . .
could at best be described as inconclusive.”184 Further, it attempted to define civil
rights and political rights as follows:
The term “civil rights,” has been defined as referring —
“(to) those (rights) that belong to every citizen of the state or country, or, in a
wider sense, to all its inhabitants, and are not connected with the organization or
administration of government. They include the rights of property, marriage, equal
protection of the laws, freedom of contract, etc. or, as otherwise defined civil rights
are rights appertaining to a person by virtue of his citizenship in a state or
community. Such term may also refer, in its general sense, to rights capable of
being enforced or redressed in a civil action.”
Also quite often mentioned are the guarantees against involuntary servitude,
religious persecution, unreasonable searches and seizures, and imprisonment for
debt.
_______________
182 Available at <http://www.globalization101.org/three-generations-of-
rights/>.
183 G.R. No. 100150, January 5, 1994, 229 SCRA 117 [Per J. Vitug, En Banc].
184 Id., at p. 126.
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Political rights, on the other hand, are said to refer to the right to participate,
directly or indirectly, in the establishment or administration of government, the
right of suffrage, the right to hold public office, the right of petition and, in general,
the rights appurtenant to citizenship vis-à-vis the management of
government.185 (Citations omitted)
The recurring refrain of these discussions — historical, academic and
jurisprudential — is the understanding that “civil and political rights” is a
collectivity. It is a figurative basket of “rights directly possessed by individuals
[that are correlatively] positive duties upon the government to respect and fulfil
them.”186 Understood in this context, it is clear that the rights of suffrage and to
hold public (elective) office, are but two of a manifold category of rights “deal[ing]
with liberty and participation in political life”187 and encompassing the entire
spectrum of all such “rights appurtenant to citizenship vis-à-vis the management
of government.”188
In light of the circumstances of this case, to speak of “restor[ing] civil and
political rights”189 is to refer to an entire composite of rights. Estrada theorizes
that because there was a sweeping reference to this collectivity, then everything
in the ‘basket’ has been restored.
Estrada’s theory fails on two points. First, it fails to consider the consequences
of statutory requirements which specifically refer to the rights of suffrage and to
hold public office. Second, it fails to recognize that the language used in the pardon
is equivocal at best, and, worse, the conclusion he derives from this equivocal
language is even contradicted by
_______________
185 Id., at pp. 132-133.
186 Available at <http://www.globalization101.org/three-generations-of-
rights/>.
187 Id.
188 Id.
189 Rollo, p. 265.
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other examples previously considered in jurisprudence. Thus, he insists on a
conclusion that does not logically follow from his premises.
Estrada capitalizes on the broad conception of civil and political rights as
including in its scope the rights of suffrage and the right to hold public office. That
is precisely the handicap in his theory: It is broad; it fails to account for
requirements relating to specific rights.
 As against the broad concept of civil and political rights as an expansive
composite or a vast spectrum of rights having to do with liberty and membership
in the political community, Articles 36 and 41 of the Revised Penal
Code specifically deal with the rights of suffrage and to hold public office.
Juxtaposed with the manifold category of civil and political rights, the effect of
Articles 36 and 41 is that, in the specific context of the President’s exercise of the
power to grant pardon to a convict, the rights of suffrage and to hold public office
are segregated from all other similar rights.
This segregation is not grounded on whim. It hearkens to the fundamental
distinction between public office as a public trust, on the one hand, and pardon as
a private act, on the other. The special requirement of express restoration or
remission affirms what was earlier discussed to be the need to desegregate, or to
bridge the disjunct between the private gesture of pardoning — originally intended
only to relieve an individual’s misery over the harshness of punishment — and the
public consequence (no longer connected with the basic purpose of mollifying penal
misery) of not only enabling a convict to participate in the selection of public
officials, but to himself or herself be a repository of public trust should he or she
become a public officer. To reiterate, public office “partakes of a privilege which the
State grants only to such classes
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of persons which are most likely to exercise it for the common good.”190
Consistent with the public interest inherent in the rights of suffrage and
holding public office, thus, if the President is to not actually say that the rights of
suffrage and to hold public office are restored, there is plainly no basis for
concluding that they have, in fact, been restored.
Such is the situation in this case. At no point does the pardon actually,
expressly, categorically, and unmistakably say that Estrada’s rights to suffrage
and to hold public office have been restored. That this court — the Supreme Court
of the Republic — has been asked to step in and settle the controversy is the best
proof of this.
Apart from these, a meticulous consideration of how the restoration of
Estrada’s civil and political rights is worded, especially in contrast with other
examples previously considered in jurisprudence, casts serious doubt on whether
the restoration was as expansive as Estrada asserts.
The exact words of the pardon granted to Estrada are: “He is hereby restored
to his civil and political rights.”191
In contrast, jurisprudence is replete with pardon, working to restore civil and
political rights in this wise: “full civil and political rights.”192 A fact noted in one
case even seems to
_______________
190 Romeo Jalosjos v. COMELEC, supra note 154.
191 Rollo, p. 265.
192 Cristobal v. Labrador, supra note 134; see also Pelobello v.
Palatino, supranote 135; National Shipyards and Steel Corporation v.
National Shipyards Employees and Workers Association, 132 Phil. 59; 23 SCRA
552 (1968) [Per J. J.B.L. Reyes, En Banc]; Lacuna v. Abes, 133 Phil. 770; 24 SCRA
780 (1968) [Per J. J.B.L. Reyes, En Banc]; In Re: Atty. Saturnino Parcasio, 161
Phil. 437; 69 SCRA 336 (1976) [Per J.Aquino, Second Division]; In Re: Atty.
Tranquilino Rovero, 189 Phil. 605; 101 SCRA 799 (1980) [Per J. Concepcion,
Jr., En Banc]; Sabello v. Department of Education, Culture and Sports,
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indicate that the inclusion of the qualifier “full” is common practice. In that
case, the phrase “full civil and political rights” was “written on a standard printed
form.”193
This is not the occasion to rule on the sufficiency of adding the qualifier “full”
for purposes of restoring even the rights of suffrage and to hold public office.
However, burdened with the task of interpretation, particular note should be taken
by this court of President Gloria Macapagal-Arroyo’s deviation from previous,
standard practice.
The President must be presumed to be fully cognizant of the significance and
consequences of the manner by which he or she executes official acts, as well as
the manner by which they are formally reduced to writing. It is revealing that
former President Gloria Macapagal-Arroyo chose to deviate from many historical
examples and from what appears to be common practice. Aware of the significance
of excluding the qualifier “full,” she chose to grant pardon to Estrada under
entirely generic and indistinct terms.
Similarly, the President must be presumed to be cognizant of statutes and
what they require. In granting pardon to Estrada, former President Gloria
Macapagal-Arroyo must have been fully informed of the requirements of Articles
36 and 41 of the Revised Penal Code if it was ever her intent to restore Estrada’s
rights to vote and be voted for elective public office or to otherwise remit the
penalty of perpetual absolute disqualification.
Not only did former President Arroyo choose to shy away from qualifying the
restoration of Estrada’s civil and political rights as “full.” She also chose, contrary
to Articles 36 and 41, to be totally silent on the restoration of the rights to vote and
be voted for elective public office and on the remission of the
_______________
259 Phil. 1109; 180 SCRA 623 (1989) [Per J. Gancayco, First Division].
193 Monsanto v. Factoran, Jr., supra note 127.
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penalty of absolute disqualification. These twin circumstances — first, of her
exclusion of a qualifier and second, her silence on restoration and remission — can
only mean that contrary to Estrada’s contention, his rights to vote and be voted for
elective public office have not been restored, and his perpetual absolute
disqualification not remitted.
Lest misinterpretation ensue, I am not here giving rise to a false dilemma and
rendering inutile the restoration of Estrada’s civil and political rights. Indeed, they
have been restored, all but the rights denied to him on account of the unremitted
penalty of perpetual absolute disqualification, among these being the rights to vote
and be voted for elective public office. That entire spectrum of rights “deal[ing] with
liberty and participation in political life”194 — to mention but a few such as his right
to liberty; freedom of abode and movement; privacy rights; rights of expresion,
association, assembly; his right to petition the government and to a redress of
grievances — are his to enjoy except for the select class of rights denied to him on
account of the omissions in his pardon.
Similarly, my pronouncements should not be taken as rendering illusory the
concept of “plenary pardon” — a concept that, as Estrada pointed out, is recognized
in Section 12 of the Omnibus Election Code. The President remains free to grant
pardon that works to restore all of a convict’s civil and political rights, even those
of suffrage and to hold public office. What I have however emphasized is that,
should the President choose to be so expansive in making such a restoration, he or
she should be clear with his or her intentions.
_______________
194 Available at <http://www.globalization101.org/three-generations-of-
rights/>.
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X Phrases, “Preamble,” citing James v. Du Bois, 16 N.J.L. (1 Har.) 285, 294.
The pardon’s preambular clauses
militate against Estrada’s position
Apart from the pardon’s absolute silence on the matters of restoration and
remission, its preambular or whereas clauses militate against the conclusion that
Estrada’s rights to suffrage and to hold public office have been restored.
The pardon’s three preambular clauses read:
WHEREAS, this Administration has a policy of releasing inmates who have
reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a
half years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek
any elective position or office[.]195
A preamble is “not an essential part of an act.”196 It is only an introduction
which indicates intent or purpose. In and of itself, it cannot be the source of rights
and obligations. Thus, “[w]here the meaning of [an instrument] is clear and
unambiguous, the preamble can neither expand nor restrict its operation, much
less prevail over its text.”197 Stated otherwise, it may be resorted to only when the
instrument is “ambiguous and difficult of interpretation.”198
_______________
195 Rollo, p. 265.
196 Kuwait Airways Corporation v. Philippine Airlines, Inc., 605 Phil. 474;
587 SCRA 399 (2009) [Per J. Tinga, Second Division].
197 Id., at pp. 487-488; pp. 409-410, citing West’s Encyclopedia of American
Law (2nd ed., 2008); Echegaray v. Secretary of Justice, G.R. No. 132601, January
19, 1999, 297 SCRA 654 [Per Curiam, En Banc]; Ruben E. Agpalo, Statutory
Construction (2nd ed., 1990) and Martin, Statutory Construction (6th ed., 1984).
198 See People v. Purisima, 176 Phil. 186, 204; 86 SCRA 542, 559 (1978)
[Per J.Muñoz-Palma, En Banc], citing Words and
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In People v. Judge Purisima,199 this court had occasion to interpret an act of
the President (who then held the power to legislate) through a reading of whereas
clauses.200 People v. Judge Purisima concluded, referring to “the presence of events
which led to or precipitated the enactment of P.D. 9… [as] clearly spelled out in
the ‘Whereas’ clauses,”201 that Presidential Decree No. 9 excluded instances where
a defendant carried bladed, pointed, or blunt weapons in situations which were not
related to the purposes of Proclamation No. 1081 and General Orders Nos. 6 and
7. Further identifying the purposes for the issuance of Proclamation No. 1081, this
court also read two of Proclamation No. 1081’s own whereas clauses 202 and
concluded that it was aimed at putting an end
_______________
199 People v. Purisima, id.
200 WHEREAS, pursuant to Proclamation No. 1081 dated September 21,
1972, the Philippines has been placed under a state of martial law;
WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6
dated September 22, 1972 and General Order No. 7 dated September 23, 1972,
have been promulgated by me;
WHEREAS, subversion, rebellion, insurrection, lawless violence, criminally,
chaos and public disorder mentioned in the aforesaid Proclamation No. 1081 are
committed and abetted by the use of firearms, explosives and other deadly
weapons[.]
201 People v. Purisima, supra note 198 at p. 203; p. 558.
202 WHEREAS, these lawless elements having taken up arms against our
duly constituted government and against our people, and having committed and
are still committing acts of armed insurrection and rebellion consisting of armed
raids, forays, sorties, ambushes, wanton acts of murders, spoilage, plunder,
looting, arsons, destruction of public and private buildings, and attacks against
innocent and defenseless civilian lives and property, all of which activities have
seriously endangered and continue to endanger public order and safety and the
security of the nation. . . .
....
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to subversive activities. Thus, this court concluded that the act of carrying
bladed, pointed, or blunt weapons was only punishable to the extent that it was
done in the context of subversive activities.
 Jurisprudence and other official acts of this court are replete with instances in
which reference to preambular clauses was resorted to in interpreting instruments
other than statutes and official acts of the President. In Licaros v.
Gatmaitan,203 this court sustained the Court of Appeals’ reference to a whereas
clause in a contract between private parties (i.e., a memorandum of agreement)
and thereby the conclusion that the parties “intended to treat their agreement as
one of conventional subrogation.”204 In Kuwait Airways Corporation v.
_______________
WHEREAS, it is evident that there is throughout the land a state of anarchy
and lawlessness, chaos and disorder, turmoil and destruction of a magnitude
equivalent to an actual war between the forces of our duly constituted government
and the New People’s Army and their satellite organizations because of the
unmitigated forays, raids, ambuscades, assaults, violence, murders,
assassinations, acts of terror, deceits, coercions, threats, intimidations, treachery,
machinations, arsons, plunders and depredations committed and being committed
by the aforesaid lawless elements who have pledged to the whole nation that they
will not stop their dastardly effort and scheme until and unless they have fully
attained their primary and ultimate purpose of forcibly seizing political and state
power in this country by overthrowing our present duly constituted government. .
..
203 414 Phil. 857; 362 SCRA 548 (2001) [Per J. Gonzaga-Reyes, Third
Division].
204 Id., at pp. 868-872; p. 558:
We agree with the finding of the Court of Appeals that the Memorandum of
Agreement dated July 29, 1988 was in the nature of a conventional subrogation
which requires the consent of the debtor, Anglo-Asean Bank, for its validity. We
note with approval the following pronouncement of the Court of Appeals:
“Immediately discernible from above is the common feature of contracts
involving conventional subrogation, namely, the approval of the debtor to the
subroga-
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_______________
tion of a third person in place of the creditor. That Gatmaitan and Licaros had
intended to treat their agreement as one of conventional subrogation is plainly
borne by a stipulation in their Memorandum of Agreement, to wit:
“WHEREAS, the parties herein have come to an agreement on the nature, form
and extent of their mutual prestations which they now record herein with the
express conformity of the third parties concerned” (emphasis supplied),
which third party is admittedly Anglo-Asean Bank.
Had the intention been merely to confer on appellant the status of a
mere “assignee” of appellee’s credit, there is simply no sense for them to
have stipulated in their agreement that the same is conditioned on the
“express conformity” thereto of Anglo-Asean Bank. That they did so only
accentuates their intention to treat the agreement as one of conventional
subrogation. And it is basic in the interpretation of contracts that the intention of
the parties must be the one pursued (Rule 130, Section 12, Rules of Court).
....
As previously discussed, the intention of the parties to treat the
Memorandum of Agreement as embodying a conventional subrogation is
shown not only by the “whereas clause” but also by the signature space
captioned “WITH OUR CONFORME” reserved for the signature of a
representative of Anglo-Asean Bank. These provisions in the aforementioned
Memorandum of Agreement may not simply be disregarded or dismissed as
superfluous.
It is a basic rule in the interpretation of contracts that “(t)he various
stipulations of a contract shall be interpreted together, attributing to the doubtful
ones that sense which may result from all
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462 SUPREME COURT REPORTS ANNOTATED
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Philippine Airlines, Inc.,205 it was impliedly acknowledged that resort to a
whereas clause is permissible in interpreting a contract entered into by the
government; except that, because the circumstances have changed, it was deemed
unnecessary to proceed to an interpretation in light of the relevant whereas
clause.206 In Conte v. Commission on Audit,207 this
_______________
of them taken jointly.” Moreover, under our Rules of Court, it is mandated that
“(i)n the construction of an instrument where there are several provisions or
particulars, such a construction is, if possible, to be adopted as will give effect to
all.” Further, jurisprudence has laid down the rule that contracts should be so
construed as to harmonize and give effect to the different provisions thereof.
(Emphasis and underscoring supplied)
205 Supra note 196.
206 Id., at pp. 487-488; pp. 409-410:
One line of argument raised by Kuwait Airways can be dismissed outright.
Kuwait Airways points out that the third Whereas clause of the 1981 Commercial
Agreement stated: “NOW, it is hereby agreed, subject to and without prejudice to
any existing or future agreements between the Government Authorities of the
Contracting Parties hereto. . . .” That clause, it is argued, evinces
acknowledgement that from the beginning Philippine Airlines had known fully
well that its rights under the Commercial Agreement would be limited by whatever
agreements the Philippine and Kuwait governments may enter into later.
But can a perambulatory clause, which is what the adverted “Whereas” clause
is, impose a binding obligation or limitation on the contracting parties? In the case
of statutes, while a preamble manifests the reasons for the passage of the statute
and aids in the interpretation of any ambiguities within the statute to which it is
prefixed, it nonetheless is not an essential part of an act, and it neither enlarges
nor confers powers. Philippine Airlines submits that the same holds true as to the
preambular whereas clauses of a contract.
 What was the intention of the parties in forging the “Whereas” clause
and the contexts the parties understood it in 1981? In order to judge the
intention of the contracting parties, their contemporaneous and subsequent acts
shall be principally considered, and in doing so, the courts may
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court referred to whereas clauses in interpreting a resolution issued by the
Social Security System.208 Similarly, this court’s
_______________
consider the relations existing between the parties and the purpose of the
contract. In 1981, Philippine Airlines was still owned by the Philippine
government. In that context, it is evident that the Philippine government,
as owner Philippine Airlines, could enter into agreements with the
Kuwait government that would supersede the Commercial Agreement
entered into by one of its GOCCs, a scenario that changed once Philippine
Airlines fell to private ownership. Philippine Airlines argues before us
that the cited preambular stipulation is in fact superfluous, and we can
agree in the sense that as of the time of the execution of the Commercial
Agreement, it was evident, without need of stipulation, that the
Philippine government could enter into an agreement with the Kuwait
government that would prejudice the terms of the commercial
arrangements between the two airlines. After all, Philippine Airlines then
would not have been in a position to challenge the wishes of its then majority
stockholder — the Philippine government. (Emphasis and underscoring supplied)
207 332 Phil. 20; 264 SCRA 19 (1996) [Per J. Panganiban, En Banc].
208 Id., at pp. 32-33; pp. 27-28:
Petitioners’ contentions are not supported by law. We hold that Res. 56
constitutes a supplementary retirement plan.
A cursory examination of the preambular clauses and provisions of Res. 56
provides a number of clear indications that its financial assistance plan constitutes
a supplemental retirement/pension benefits plan. In particular, the fifth
preambular clause which provides that “it is the policy of the Social Security
Commission to promote and to protect the interest of all SSS employees, with a
view to providing for their well-being during both their working and retirement
years,” and the wording of the resolution itself which states “Resolved, further,
that SSS employees who availed themselves of the said life annuity (under RA
660), in appreciation and recognition of their long and faithful service, be granted
financial assistance x x x” can only be inter-
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464 SUPREME COURT REPORTS ANNOTATED
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En Banc resolution in A.M. No. 99-8-01-SC,209 issued by this court in the
exercise of its rule-making power, cited a statute’s210whereas clause.
The pardon extended to Estrada is definite by its omission: There is neither an
express restoration of Estrada’s rights to vote and be voted for elective public office
nor a remission of his perpetual absolute disqualification. To this extent, it is clear
and unambiguous. This should suffice to put an end to Estrada’s asseverations
that he was qualified to run for Mayor of Manila.
Nevertheless, even if the position that there remains room for interpretation
was to be indulged, a reading of the pardon as a whole, and an illumination,
through the preambular clauses, of the pardon’s supposed ambiguity, will lead to
the same conclusion: Estrada was and remains to be disqualified.
As in Purisima, the pardon’s whereas clauses indicate events and
considerations that precipitated or led to the grant of pardon. More specifically,
the third whereas clause reveals that the pardon was premised on Estrada’s prior,
public commitment of disabling himself from being a candidate in an
_______________
preted to mean that the benefit being granted is none other than a kind of
amelioration to enable the retiring employee to enjoy (or survive) his retirement
years and a reward for his loyalty and service. Moreover, it is plain to see that the
grant of said financial assistance is inextricably linked with and inseparable from
the application for and approval of retirement benefits under RA 660, i.e., that
availment of said financial assistance under Res. 56 may not be done
independently of but only in conjunction with the availment of retirement benefits
under RA 660, and that the former is in augmentation or supplementation of the
latter benefits.
209 En Banc Resolution Providing for Other Sources of the Judiciary
Development Fund dated September 14, 1999.
210 Pres. Decree No. 1949 (1984), otherwise known as Establishing a
Judiciary Development Fund and for Other Purposes.
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election (i.e., “to no longer seek any elective position or office”).211
The preceding discussions underscored the nature of the power to pardon (in
particular, and to extend clemency, in general) as being fundamentally a matter of
executive discretion. However, that this is a matter resting on the President’s
prerogative is no license for the President to heedlessly brandish it. As with all
other powers vested in the executive, it is a power that is not to be abused. It cannot
be exercised arbitrarily, whimsically, or capriciously. The President may well be a
despot, otherwise.
Thus, if the power to pardon were ever to be invoked, it must remain true to
its reason for existence: to correct “infirmities, deficiencies or flaws in the
administration of justice”;212 to “mitigat[e] whatever harshness might be
generated by a too strict an application of the law[;]”213 or to otherwise “temper the
gravity of [a punishment’s] wrath.”214 To the extent, therefore, that the power to
pardon is exercised in a manner that evinces nothing more than the indulgence of
caprices, an issue that may properly be taken cognizance of by this court arises:
grave abuse of discretion amounting to lack or excess of jurisdiction.
In stating this, I remain mindful of this court’s pronouncement in 2007
in People v. Rocha,215 which I have cited earlier. At initial glance, Rocha appears
to totally erode the power of judicial review in relation to the grant of executive
clemency:
_______________
211 Rollo, p. 265.
212 J. Padilla, Dissenting Opinion in Llamas v. Orbos, supra note 118 at p.
946; p. 866, citing Joaquin G. Bernas, S.J., On The Revised 1973 Philippine
Constitution, part 1, p. 228 (1983).
213 Id.
214 Monsanto v. Factoran, Jr., supra note 127 at pp. 198-199; p. 196,
citing United States v. Wilson, supra note 128, cited in Joaquin G. Bernas,
S.J., The 1973 Philippine Constitution, Notes and Cases, part 1, p. 355 (1974).
215 Supra note 124.
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466 SUPREME COURT REPORTS ANNOTATED
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This Court cannot review, much less preempt, the exercise of executive
clemency under the pretext of preventing the accused from evading the penalty
of reclusion perpetua or from trifling with our judicial system. Clemency is not a
function of the judiciary; it is an executive function. Thus, it is the President, not
the judiciary, who should exercise caution and utmost circumspection in the
exercise of executive clemency in order to prevent a derision of the criminal justice
system. We cannot and shall not deny accused-appellants’ Motions to Withdraw
Appeal just because of their intention of applying for executive clemency. With the
Constitution bestowing upon the Executive the power to grant clemency, it
behooves the Court to pass the ball to the President and let her determine the fate
of accused-appellants.216
However, a meticulous reading of Rocha reveals that its pronouncements were
made in a very specific context, i.e., the issue of whether this court should allow
the withdrawal of the appeals of accused-appellants in order that they may avail
themselves of executive clemency. In making the quoted pronouncement, this court
merely affirmed the basic precept that the power to extend clemency is a choice for
the President — and not for any other institution, such as this court — to make.
Thus, it would be improper for this court to take any action that would effectively
prevent the President from even making that choice.
Rocha was a deferential statement that recognized where the power to extend
clemency was lodged. It was a recognition that this court could not preempt the
grant of clemency. At no point, however, did Rocha sanction the fanciful exercise
of the power. Nowhere did it say that the power granted to the President may be
divorced from its raison d’être.
_______________
216 Id., at pp. 538-539; p. 778, citing Joaquin G. Bernas, The 1987
Constitution of the Republic of the Philippines, A Commentary, p. 935 (2003).
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While it behooves this court to extend to the President the presumption that
the grant is attended with good reason, so, too, this court should not indulge a
patently frivolous exercise of presidential discretion.
Presently, this court finds itself grappling with pardon extended to a deposed
President of the Republic who was convicted for the crime of plunder.
Joseph Ejercito Estrada is no common convict. In him was reposed the trust of
an overwhelming number of Filipinos. He was elected to nothing less than the
highest office of the land. Assuming the presidency, he swore, invoking the name
of God, to “faithfully and conscientiously fulfil [his] duties as President[; to]
preserve and defend [the] Constitution[;] and [to] consecrate [himself] to the
service of the Nation.”217 This notwithstanding, he is a man, who, tormented with
recriminations of massive corruption and failing to exculpate himself in the eyes
of the Filipino people, was left with no recourse but to leave the Presidency. He
stood trial for and was convicted of plunder: a conviction that endures and stands
unreversed.
A ruling on this petition cannot be bereft of context, both of the present and of
our history. Similarly, this court cannot turn a blind eye on its own recognition of
the gravity and grievousness that Estrada’s conviction for plunder entails.
_______________
217 Const. (1987), Art. VII, Sec. 5:
Section 5. Before they enter on the execution of their office, the President,
the Vice President, or the Acting President shall take the following oath or
affirmation:
“I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill
my duties as President (or Vice President or Acting President) of the Philippines,
preserve and defend its Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So help me God.” (In case of
affirmation, last sentence will be omitted.)
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468 SUPREME COURT REPORTS ANNOTATED
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In 2001, in Estrada v. Sandiganbayan,218 this court, against the asseverations
of Estrada himself, ruled that plunder is inherently immoral, i.e., malum in se. In
so doing, this court, quoting the concurring opinion of Justice Vicente V. Mendoza,
emphasized that any doubt on the inherent immorality of plunder “must be
deemed to have been resolved in the affirmative by the decision of Congress in
1993 to include it among the heinous crimes punishable by reclusion perpetua to
death.”219 Estrada v. Sandiganbayan, quoting People v.
Echegaray,220 unequivocally underscored the abhorrence that animates the
classification of plunder as a heinous crime punishable by death. This court did
not mince words:
There are crimes, however, in which the abomination lies in the significance
and implications of the subject criminal acts in the scheme of the larger socio-
political and economic context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses. Reeling from decades
of corrupt tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and syndicated criminality that so
deeply entrenched itself in the structures of society and the psyche of the populace.
[With the government] terribly lacking the money to provide even the most basic
services to its people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it governs over. Viewed in
this context, no less heinous are the effects and repercussions of crimes like
qualified bribery, destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that
_______________
218 421 Phil. 290; 369 SCRA 394 (2001) [Per J. Bellosillo, En Banc].
219 Id., at p. 365; p. 452.
220 335 Phil. 343; 267 SCRA 682 (1997) [Per Curiam, En Banc].
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their perpetrators must not be allowed to cause further destruction and
damage to society.221 (Emphasis supplied)
Turning its attention specifically to Republic Act No. 7080, the Anti-Plunder
Law, Estrada v. Sandiganbayan stated:
Our nation has been racked by scandals of corruption and obscene profligacy of
officials in high places which have shaken its very foundation. The anatomy of
graft and corruption has become more elaborate in the corridors of time as
unscrupulous people relentlessly contrive more and more ingenious ways to bilk
the coffers of the government. Drastic and radical measures are imperative to fight
the increasingly sophisticated, extraordinarily methodical and economically
catastrophic looting of the national treasury. Such is the Plunder Law, especially
designed to disentangle those ghastly tissues of grand-scale corruption which, if
left unchecked, will spread like a malignant tumor and ultimately consume the
moral and institutional fiber of our nation. The Plunder Law, indeed, is a living
testament to the will of the legislature to ultimately eradicate this scourge and thus
secure society against the avarice and other venalities in public office.222 (Emphasis
supplied)
Section 2 of Republic Act No. 7080, as amended, provides for the definition of
and penalties for plunder, as follows:
Section 2. Definition of the Crime of Plunder; Penalties.—Any public officer
who, by himself or in connivance with members of his family, relatives by affinity
or consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt
or criminal acts as described in Section 1(d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder
_______________
221 Estrada v. Sandiganbayan, supra note 218 at pp. 365-366; p. 453.
222 Id., at pp. 366-367; p. 454.
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and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an offense
contributing to the crime of plunder shall likewise be punished for such offense. In
the imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court. The court shall declare any and all ill-gotten
wealth and their interests and other incomes and assets including the properties
and shares of stocks derived from the deposit or investment thereof forfeited in
favor of the State.
This technical-legal definition notwithstanding, in common understanding, to
plunder is to pillage or to ransack. It denotes more than wrongful taking as to
amount to common larceny. Synonymous with despoiling and marauding,
plundering evokes the devastation wrought by hordes laying waste to an
enemy.223 By plundering, a subjugator impresses the fact of its having vanquished
another by arrogating unto itself the spoils of conquest and rendering more
ignominious an otherwise simple defeat.
Plundering as a crime and by its scale, therefore, entails more than greed and
covetousness. It conjures the image of a public officer deluded in the thought that
he or she is some overlord, free to ravage and entitled to seize all that his or her
realm can provide. It entails more than ordinary moral turpitude (i.e., an
inherently immoral act)224 as acts like theft, rob-
_______________
223 Definition available at <http://www.merriam-webster.com/
dictionary/plunder>.
224 See Teves v. Commission on Elections, supra note 117, citing Dela Torre v.
Commission on Elections, supra note 117.
“It (moral turpitude) implies something immoral in itself, regardless of the fact
that it is punishable by law or not. It must not be merely mala prohibita, but the
act itself must be inherently immoral. The doing of the act itself, and not its
prohibition by statute fixes the moral turpitude. Moral turpitude does not,
however, in-
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bery, bribery, profiteering, estafa, extortion, and embezzlement have been
categorized.225 It evinces such a degree of depravity and debasement so heinous
that, were it not for the subsequent enactment of a statute (i.e., Republic Act No.
9346), it would remain punishable by death.
Recognition must be given to the legislative wisdom underlying the choice of
penalty. This is not only with respect to the severity of punishment chosen (i.e.,
deprivation of life or deprivation of liberty for the longest duration contemplated
by the scale of penalties under the Revised Penal Code) but similarly with all other
accessories that the penalties of reclusion perpetua and/or death entail. Congress,
in choosing to penalize plunder with reclusion perpetua to death, must certainly
have been cognizant of how these penalties did not only entail the deprivation of
the right to life and/or liberty, but also of how, consistent with Articles 40 and 41
of the Revised Penal Code, they carried the accessory penalty of perpetual absolute
disqualification.
To recognize this legislative wisdom is, thus, to recognize that penalizing
plunder inherently entails the exclusion of a convict from elective exercises for
public office, both as a candidate and as a voter, as well as from offices and public
employments. This is consistent with the recognition that plunder is an
“abomination . . . in the scheme of the larger socio-political and economic
context.”226Through the penalty of perpetual absolute disqualification, it is, thus,
ensured that a person convicted of plunder will no longer find himself or herself in
the same setting, i.e., holding (elective) public office, which, in the first place,
enabled the commission of plunder.
_______________
clude such acts as are not of themselves immoral but whose illegality lies in
their being positively prohibited.”
225 See J. Brion’s Concurring Opinion in Teves v. Commission on
Elections, supra note 117 at pp. 740-742; pp. 24-26.
226 Estrada v. Sandiganbayan, supra note 118 at p. 356; p. 453.
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It is against this backdrop of plunder as a social “abomination” 227as well as
“corruption and obscene profligacy of officials in high places”228 that Estrada
insists on a pardon that worked to restore his rights to vote and be voted for
elective public office. Bereft of any clue as to the intent behind the grant of pardon,
such grant is mind-boggling. It, and its statement that Estrada is restored to his
civil and political rights, appear to defy the disdain which animates the policy
against plunder.
To reiterate, however, a President’s grant of pardon must be presumed to be
grounded on the basic nature of pardon as a means for tempering the harshness of
punishment. A reading of the preamble or whereas clauses of the pardon granted
to Estrada will reveal that, indeed, the pardon was animated by nothing more than
a desire to salve Estrada’s suffering.
Consider the recognition made in the first and second preambular clauses that
Estrada was already more than 70 years old and had been in detention for about
six and a half years. These preambular clauses provide context to why President
Gloria Macapagal-Arroyo saw wisdom in tempering Estrada’s suffering: Keeping
in prison a septuagenarian — a man who could well be considered to be in the
twilight years of his life — may be too severe; anyway, Estrada had already been
deprived of liberty for a considerable length of time.
The third preambular clause is even more revealing. It unveils the undertaking
made by Estrada (acknowledged and unchallenged by him through his unqualified
handwritten acceptance) that he would no longer embark on the very same affair,
i.e., (elective) public office, that facilitated his commission of plunder. The inclusion
of the third preambular clause is not empty rhetoric. It is an indispensable qualifier
indicating that Estrada was pardoned precisely in view of his promise to no longer
seek (elective) public office. Similarly, it estab-
_______________
227 Id.
228 Id., at p. 366; p. 454.
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lishes that the grant of pardon notwithstanding, there is no betrayal of the
fundamental policy of aversion against plunder as an affront to “the larger socio-
political and economic context.”229
Accordingly, any reading of the phrase on which Estrada capitalizes — “[h]e is
hereby restored to his civil and political rights” — must be made in accordance
with the qualifier evinced by an undertaking Estrada himself made “to no longer
seek any elective position or office.”230 Read as such, the pardon could not have
possibly worked to reverse the effects of the penalty of perpetual absolute
disqualification or to otherwise restore his right to vote in any election for any
popular elective office or to be elected to such office.
XI
Estrada’s reincarceration is not a
proper issue in this case.
Drawing attention to Estrada’s undertaking, Risos-Vidal theorizes that
Estrada was granted a conditional pardon, i.e, that it was laden with a resolutory
condition and that, as Estrada reneged on his undertaking, the rights vested by
the pardon must be deemed extinguished. Citing Article 159 of the Revised Penal
Code, Risos-Vidal, thus, suggests that Estrada should once again be incarcerated:
Thus, clearly, when Joseph Estrada himself intentionally and wilfully
breached his pardon when he filed his certificate of candidacy for the position of
Mayor of the City of Manila, he is guilty of breach of the conditions of the pardon
which puts and [sic] end to the pardon itself and thereby immediately restoring
the terms of conviction imposed by the Sandiganbayan. He should therefore be
recommitted to prisión consistent with Article 159 of the Revised Penal Code
which provides:
_______________
229 Id., at p. 365; p. 453.
230 Rollo, p. 265.
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ART. 159. Other Cases of Evasion of Service of Sentence.—The penalty
of prisión correccional in its minimum period shall be imposed upon the convict
who, having been granted conditional pardon by the Chief Executive, shall violate
any of the conditions of such pardon. However, if the penalty remitted by the
granting of such pardon be higher than six years, the convict shall then suffer the
unexpired portion of his original sentence.231
Estrada counters that he was “granted an absolute pardon and thereby
restored to his full civil and political rights, including the right to seek public
elective [sic] office.”232 Estrada, therefore, construes an “absolute pardon” as one
with sweeping, all-encompassing effects.
As against the pardon’s premise of Estrada’s commitment to no longer seek
any elective position or office is Estrada’s acceptance:
Received & accepted
Joseph E. Estrada (sgd.)
DATE: 26 Oct. ‘07
TIME: 3:35 PM233
Made in Estrada’s own handwriting, the acceptance articulates no
qualification or reservation. Hence, it is an acceptance that is inclusive of his
promise to no longer seek elective public office.
Nevertheless, the matter of Estrada’s reincarceration as a possible
consequence of the occurrence of a resolutory condi-
_______________
231 Id., at p. 1521.
232 Id., at pp. 1765-1766.
233 Id. Certified true copy issued by Marianito M. Dimaandal, Director IV,
Malacañan Records Office.
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tion is no longer essential to the disposition of this case. After all, this case
pertains to a petition for disqualification. What this court is called upon to rule on
is Estrada’s qualification to run for Mayor of Manila.
In the limited context that excludes the question of Estrada’s possible
reincarceration, the materiality of his acceptance is in how such acceptance was
imperative in order to bring the pardon to effect. As noted in Monsanto, “[a] pardon
is a deed, to the validity of which delivery is essential, and delivery is not complete
without acceptance.”234 This, too, is reflected in the pardon’s text, the last
paragraph of which reads:
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this
pardon shall take effect.235
XII
Estrada’s disqualification not
affected by the lapse of more than
two years since his release from
prison
Having settled on Estrada’s disqualification, it is worth emphasizing (in the
interest of settling whatever lingering doubts there may be) that his
disqualification is not negated by the statement in Section 40(a) of the Local
Government Code that the disqualification relating to “[t]hose sentenced by final
judgment for an offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment” shall last for “two (2) years after serving
sentence.”
_______________
234 Monsanto v. Factoran, Jr., supra note 127 at p. 198; p. 196, citing United
States v. Wilson, supra note 128, cited in Joaquin G. Bernas, The 1973 Philippine
Constitution, Notes and Cases, part I, p. 355 (1974).
235 Rollo, p. 265.
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This, even if Section 40 of the Local Government Code is the specific ground relied
upon by Risos-Vidal in seeking to disqualify Estrada.
The relation between Article 30 of the Revised Penal Code — on the effects of
perpetual absolute disqualification — and Section 40(a) of the Local Government
Code was extensively discussed in Romeo Jalosjos v. COMELEC:236
Well-established is the rule that every new statute should be construed in
connection with those already existing in relation to the same subject matter and
all should be made to harmonize and stand together, if they can be done by any
fair and reasonable interpretation.
....
Keeping with the above mentioned statutory construction principle, the Court
observes that the conflict between these provisions of law may be properly
reconciled. In particular, while Section 40(a) of the LGC allows a prior convict to
run for local elective office after the lapse of two (2) years from the time he serves
his sentence, the said provision should not be deemed to cover cases wherein
the law imposes a penalty, either as principal or accessory, which has the
effect of disqualifying the convict to run for elective office. An example of
this would be Article 41 of the RPC, which imposes the penalty of perpetual
absolute disqualification as an accessory to the principal penalties of reclusion
perpetua and reclusion temporal[.]
....
Pertinently, it is observed that the import of Article 41 in relation to Article 30
of the RPC is more direct and specific in nature — insofar as it deprives the
candidate to run for elective office due to his conviction — as compared to Section
40(a) of the LGC which broadly speaks
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236 Supra note 154.
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of offenses involving moral turpitude and those punishable by one (1) year or
more of imprisonment without any consideration of certain disqualifying effects to
one’s right to suffrage. Accordingly, Section 40(a) of the LGC should be considered
as a law of general application and therefore, must yield to the more definitive RPC
provisions in line with the principle of lex specialis derogat generali — general
legislation must give way to special legislation on the same subject, and generally
is so interpreted as to embrace only cases in which the special provisions are not
applicable. In other words, where two statutes are of equal theoretical application
to a particular case, the one specially designed therefor should prevail.
In the present case, petitioner was sentenced to suffer the principal penalties
of reclusion perpetua and reclusion temporal which, pursuant to Article 41 of the
RPC, carried with it the accessory penalty of perpetual absolute disqualification
and in turn, pursuant to Article 30 of the RPC, disqualified him to run for elective
office. As discussed, Section 40(a) of the LGC would not apply to cases wherein a
penal provision — such as Article 41 in this case — directly and specifically
prohibits the convict from running for elective office. Hence, despite the lapse of
two (2) years from petitioner’s service of his commuted prison term, he
remains bound to suffer the accessory penalty of perpetual absolute
disqualification which consequently, disqualifies him to run as mayor for
Zamboanga City.
Notably, Article 41 of the RPC expressly states that one who is previously
convicted of a crime punishable by reclusion perpetua or reclusion
temporal continues to suffer the accessory penalty of perpetual absolute
disqualification even though pardoned as to the principal penalty, unless the said
accessory penalty shall have been expressly remitted in the pardon. In this case,
the same accessory penalty had not been expressly remitted in the Order of
Commutation or by any subsequent pardon and as such, petitioner’s
disqualification to run for elective of-
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478 SUPREME COURT REPORTS ANNOTATED
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fice is deemed to subsist.237 (Emphasis supplied, citations omitted)
Similarly, in this case, it is of no consequence that, by the time Estrada filed
his candidacy and sought election as Mayor of the City of Manila, more than (2)
years had lapsed since he was released from incarceration following President
Gloria Macapagal-Arroyo’s grant, and his acceptance, of pardon.
In sum, Estrada was disqualified to run for Mayor of the City of Manila in the
May 13, 2013 elections. Moreover, his perpetual absolute disqualification not
having been remitted, and his rights to vote and be voted for elective public office
not having been restored, Estrada remains bound to suffer the effects of the
penalty of perpetual absolute disqualification, as listed in Article 30 of the Revised
Penal Code. Specifically, he remains disqualified from exercising the right to vote
in any election for any popular elective office, and he remains barred from
occupying any public office, elective, or otherwise.
XIII
On the supposed
disenfranchisement of voters and
disregard of the sovereign will
Estrada warns against the “massive disenfranchisement of votes [sic]”238 and
cautions against disrespecting “the sovereign will of the people as expressed
through the ballot.”239 In doing so, he makes much of the margin of more than
35,000 votes by which he edged out Lim.240
_______________
237 Id., at pp. 757-763.
238 Rollo, p. 1764.
239 Id., at p. 1735.
240 Id., at p. 1748.
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Estrada is very loosely invoking the concept of a “sovereign” as though a
plurality of votes is the sole determinant of the “sovereign will.”
In the first place, what is involved here is merely an election for a local elective
position. Certainly, the voters of a single local government unit ought not to be
equated with the “sovereign Filipino people.” So blithely is Estrada celebrating his
349,770 votes, he seems to forget that Lim was not even too far off with 313,764
votes.
Estrada celebrates the casting of votes in his favor as a seemingly indubitable
expression of the sovereign will in trusting him with elective public office. He
forgets that a mere three years prior, the voters, not just of the City of Manila, but
of the entire Republic, repudiated him and rejected his attempt to once again
secure the Presidency. He placed a distant second, behind by more than 5.72
million votes, to President Benigno Simeon Aquino III.
Estrada did secure more votes than Lim, that much can be conceded; but these
votes were cast in favor of an ineligible candidate, i.e., one who was no candidate
at all.
The matter of eligibility relates to circumstances personally pertaining to a
candidate, e.g., citizenship, residency, age, lack of a prior conviction, and literacy.
No amount of votes can cure a candidate’s ineligibility. It could not, for instance,
turn a 34-year-old person who filed a certificate of candidacy for Senator into a 35-
year-old and suddenly qualify that person for election as a Senator. The matter of
qualification is entirely beyond the mere plurality of votes.
In the context of constitutional democracy, the sovereign will is as effectively
expressed in the official acts of public institutions. The Filipino people speak as
much through the laws enacted by their elected representatives as they do through
the ballot. Among these laws are those which prescribe the qualifications for elective
public offices. Thus, by these requirements, the sovereign Filipino people delimit
those
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480 SUPREME COURT REPORTS ANNOTATED
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who may be elected to public office. Among these, too, is the Revised Penal Code,
Articles 36 and 41 of which require the express restoration of the rights of suffrage
and to hold public office, or otherwise the express remission of the penalty of
perpetual absolute disqualification. So too, the Filipino people speak through the
Constitution they have adopted, a basic precept of which is that public office is a
public trust. Thus, matters relating to public office cannot be expediently dispensed
with through the private act of granting pardon unless such grant be in compliance
with legally established requisites.
The plurality of voters in Manila may appear to have decided contrary to what
is expressed in our laws, but this cannot trump the sovereign will as expressed in
our Constitution and laws.
XIV
Petitioner-intervenor Alfredo S.
Lim is the qualified candidate who
obtained the highest number of
votes in the election for Mayor of
the City of Manila
Having settled that Estrada suffered and continues to suffer from perpetual
absolute disqualification, it is proper to resolve the resultant issue of who must be
named Mayor of the City of Manila in lieu of Estrada.
In this court’s April 16, 2013 decision in Maquiling v. COMELEC,241 we
revisited the 1912 case of Topacio v. Paredes242from which originated the often-
quoted phrase “the wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is
_______________
241 G.R. No. 195649, April 16, 2013, 696 SCRA 420 [Per CJ. Sereno, En
Banc].
242 23 Phil. 238 (1912) [Per J. Trent, En Banc].
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the eligibility of the one receiving a plurality of the legally cast ballots.”243 This
was the progenitor of the principle that a supposed second placer cannot be
proclaimed the winner in an election contest.
As in the present case, Maquiling involved a petition for
disqualification244 anchored on Section 40 of the Local Government Code.245 Thus,
the principles laid down by Maquiling as to who must occupy an elective position
following the determination that a candidate was disqualified are squarely
applicable in this case.
As explained in Maquiling, the ‘often-quoted phrase’ from Topacio was a
mere obiter dictum:
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The
Court was comparing “the effect of a decision that a candidate is not entitled to the
office because of fraud or irregularities in the elections x x x [with] that produced
by declaring a person ineligible to hold such an office.”
The complete sentence where the phrase is found is part of a comparison and
contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office
because of fraud or irregularities in the elections is quite different from that
produced by declaring a person ineligible to hold such an office. In the former case
the court, after an examination of the ballots may find that some other person than
the candidate declared to have
_______________
243 Id., at p. 240.
244 Maquiling v. COMELEC, supra note 241 at p. 443.
“[T]he COMELEC First Division and the COMELEC En Banc correctly treated
the petition as one for disqualification.”
245 Id., at p. 464. “[Arnado] was a dual citizen disqualified to run for public
office based on Section 40(d) of the Local Government Code.”
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482 SUPREME COURT REPORTS ANNOTATED
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received a plura[l]ity by the board of canvassers actually received the greater
number of votes, in which case the court issues its mandamus to the board of
canvassers to correct the returns accordingly; or it may find that the manner of
holding the election and the returns are so tainted with fraud or illegality that it
cannot be determined who received a [plurality] of the legally cast ballots. In the
latter case, no question as to the correctness of the returns or the manner of casting
and counting the ballots is before the deciding power, and generally the only result
can be that the election fails entirely. In the former, we have a contest in the strict
sense of the word, because of the opposing parties are striving for supremacy. If it
be found that the successful candidate (according to the board of canvassers)
obtained a plurality in an illegal manner, and that another candidate was the real
victor, the former must retire in favor of the latter. In the other case, there is not,
strictly speaking, a contest, as the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole question is the eligibility
of the one receiving a plurality of the legally cast ballots. In the one case the
question is as to who received a plurality of the legally cast ballots; in the other,
the question is confined to the personal character and circumstances of a single
individual.
Note that the sentence where the phrase is found starts with “In the other case,
there is not, strictly speaking, a contest” in contrast to the earlier statement, “In
the former, we have a contest in the strict sense of the word, because of the
opposing parties are striving for supremacy.”
The Court in Topacio v. Paredes cannot be said to have held that “the wreath
of victory cannot be trans-
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ferred from an ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the legally cast ballots.”
A proper reading of the case reveals that the ruling therein is that since the
Court of First Instance is without jurisdiction to try a disqualification case based
on the eligibility of the person who obtained the highest number of votes in the
election, its jurisdiction being confined “to determine which of the contestants has
been duly elected” the judge exceeded his jurisdiction when he “declared that no
one had been legally elected president of the municipality of Imus at the general
election held in that town on 4 June 1912” where “the only question raised was
whether or not Topacio was eligible to be elected and to hold the office of municipal
president.”
The Court did not rule that Topacio was disqualified and that Abad as the
second placer cannot be proclaimed in his stead. . . .246 (Citations omitted)
By definition, an ineligible individual is not even a candidate in the first
place.247 It is, therefore, erroneous to refer to him or her as a “winner,” that is, as
the “winning candidate,” should he or she obtain the plurality of votes.
Consequently, it is illogical to refer to the candidates who are trailing in the vote
count as “losers,” which is what labels like “second-placer” entail. As his or her
ineligibility as a candidate remains, the number of votes cast for him or her is
ultimately not decisive of who must be proclaimed as winner:248
The ballot cannot override the constitutional and statutory requirements for
qualifications and disqualifications of candidates. When the law requires certain
qualifications to be possessed or that certain disqualifications be not possessed by
persons desiring to serve as
_______________
246 Id., at pp. 456-457.
247 Id., at p. 458.
248 Id.
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484 SUPREME COURT REPORTS ANNOTATED
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elective public officials, those qualifications must be met before one even
becomes a candidate. When a person who is not qualified is voted for and
eventually garners the highest number of votes, even the will of the electorate
expressed through the ballot cannot cure the defect in the qualifications of the
candidate. To rule otherwise is to trample upon and rent asunder the very law that
sets forth the qualifications and disqualifications of candidates. We might as well
write off our election laws if the voice of the electorate is the sole determinant of
who should be proclaimed worthy to occupy elective positions in our republic.249
To rule as such is not tantamount to disrespecting the will of the electorate. As
was very recently said in Hayudini v. COMELEC:250
[T]he will of the electorate is still actually respected even when the votes for
the ineligible candidate are disregarded. The votes cast in favor of the ineligible
candidate are not considered at all in determining the winner of an election for
these do not constitute the sole and total expression of the sovereign voice. On the
other hand, those votes for the eligible and legitimate candidates form an integral
part of said voice, which must equally be given due respect, if not more.251
Contemporary jurisprudence has seen the repudiation of the position that a
“second placer” cannot be proclaimed a winner in lieu of an ineligible candidate.
This court’s 2012 decisions in Aratea v. COMELEC252 and Dominador Jalosjos,
Jr. v. COMELEC253 ruled that a certifi-
_______________
249 Id., at p. 459.
250 G.R. No. 207900, April 22, 2014, 723 SCRA 223 [Per J. Peralta, En Banc].
251 Id., citing Maquiling v. COMELEC, supra note 241 at pp. 456-457.
252 Supra note 74.
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cate of candidacy that was cancelled for being void ab initio, it having been
filed by a candidate who falsely claimed that he was eligible, produces no effect, it
“cannot give rise to a valid candidacy, and much less to valid votes.”254 Thus, the
votes cast for the ineligible candidate should be considered “stray votes and should
not be counted.”255
This court’s June 25, 2013 resolution in Svetlana Jalosjos v.
COMELEC256 expounded on the reasons for enabling the qualifiedcandidate (the
erstwhile “second placer, unless of course, he is himself ineligible) who obtained
the highest number of votes to assume the contested office. It has also clarified the
proper operation of Section 44 of the Local Government Code on the rules on
succession in case of a permanent vacancy in the Office of the Mayor:
There is another more compelling reason why the eligible candidate who
garnered the highest number of votes must assume the office. The ineligible
candidate who was proclaimed and who already assumed office is a de factoofficer
by virtue of the ineligibility.
The rule on succession in Section 44 of the Local Government Code cannot
apply in instances when a de facto officer is ousted from office and the de
jure officer takes over. The ouster of a de facto officer cannot create a permanent
vacancy as contemplated in the Local Government Code. There is no vacancy to
speak of as the de jure officer, the rightful winner in the elections, has the legal
right to assume the position.257
Dominador Jalosjos, Jr. has not only ruled that the votes for an ineligible
candidate are stray votes. It has also im-
_______________
253 Supra note 40.
254 Aratea v. COMELEC, supra note 74 at p. 145.
255 Jalosjos, Jr. v. COMELEC, supra note 40.
256 G.R. No. 193314, June 25, 2013, 699 SCRA 507 [Per CJ. Sereno, En Banc].
257 Id., at pp. 519-520.
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486 SUPREME COURT REPORTS ANNOTATED
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pressed upon the COMELEC that it is duty-bound to “motu proprio bar from
running for public office those suffering from perpetual special disqualification by
virtue of a final judgment.”258
 Even without a petition under either Section 12 or Section 78 of the Omnibus
Election Code, or under Section 40 of the Local Government Code, the COMELEC
is under a legal duty to cancel the certificate of candidacy of anyone suffering from
the accessory penalty of perpetual special disqualification to run for public office
by virtue of a final judgment of conviction. The final judgment of conviction is
notice to the COMELEC of the disqualification of the convict from running for
public office. The law itself bars the convict from running for public office, and the
disqualification is part of the final judgment of conviction. The final judgment of
the court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to
implement the disqualification, it is assumed that the portion of the final judgment
on disqualification to run for elective public office is addressed to the COMELEC
because under the Constitution the COMELEC is duty bound to “[e]nforce and
administer all laws and regulations relative to the conduct of an election.” The
disqualification of a convict to run for public office under the Revised Penal Code,
as affirmed by final judgment of a competent court, is part of the enforcement and
administration of “all laws” relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel the
certificate of candidacy of one suffering from perpetual special disqualification will
result in the anomaly that these cases so grotesquely exemplify. Despite a prior
perpetual special disqualification, Jalos-
_______________
258 Jalosjos, Jr. v. COMELEC, supra note 40 at p. 24.
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jos was elected and served twice as mayor. The COMELEC will be grossly
remiss in its constitutional duty to “enforce and administer all laws” relating to
the conduct of elections if it does not motu proprio bar from running for public
office those suffering from perpetual special disqualification by virtue of a final
judgment.259
Applying these principles, the votes cast for private respondent Joseph Ejercito
Estrada, a disqualified and ineligible candidate, must be held as stray votes.
Petitioner-intervenor Alfredo S. Lim is the qualified candidate who obtained
the highest number of votes in the contest to be elected Mayor of the City of Manila
in the May 13, 2013 elections. Accordingly, he must be proclaimed the duly elected
Mayor of the City of Manila, lest there be grounds, not contemplated in this
opinion, barring his proclamation.
Final note
Not so long ago, our people were moved by revelations of wrongdoing
committed by one who temporarily occupied one of the most important public
offices of our society — the Presidency. Our people’s collective voices uttered in
private conversations avalanched into a people’s movement. This voice found its
way into the halls of the House of Representatives and the Senate in a historic
impeachment proceeding. Events unravelled, which caused the offending
President to vacate Malacañan, to be considered resigned, and to finally be
replaced.
His prosecution subsequently ensued. A first in our history,
the Sandiganbayan found him guilty of committing the highest possible crime
attended by graft and corruption. This betrayal of the public trust is called plunder.
It is statutorily punished by a penalty of reclusion perpetua and permanent
disqualification from public office.
_______________
259 Id., at pp. 23-24, citing Const. (1987), Art. IX-C, Sec. 2(1).
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The person convicted of plunder now walks free among us. He did not spend a
single day in an ordinary jail. There is no question that he was pardoned. Today,
the majority completes the circle by reading an ambiguous pardon allowing him
yet again to run for public office. The majority uses the equivocal silence of the
succeeding President who devised the ambiguous pardon as one of the bases to say
that the convicted former President can again seek public office.
This is template for our political elite at the expense of the masses who toil and
suffer from the consequences of corruption. It is hope for those who occupy high
government offices who commit crimes as they await a next political term when
the people’s vigilance would have waned. It is the denouement in a narrative that
will explain why there is no effective deterrent to corruption in high places. The
pragmatism of politics takes over the highest notion that public office should be of
effective public trust. The rule of law should unravel to meet this expectation.
The pardon was ambiguous. By our laws and constitutional fiat, it should have
been read as perpetually prohibiting he who was convicted of plunder from again
occupying any public office. This is my reading of what the values in our laws
require.
I do not judge respondent for who he is as a person. That is not within our
constitutional competence. But as a leader, the respondent will best show that the
way forward for the country he loves should be for him to repent and for him to
suffer courageously the consequences of his past acts. There are things which are
clearly right. There are things which are clearly wrong. For in our hearts we know
that impunity, in any form, should be abhorred especially when it gives advantage
to the privileged and the powerful.
Thus, I dissent.
ACCORDINGLY, contrary to the majority, I vote to GRANT the petition and
the petition-in-intervention. The
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assailed resolutions dated April 1, 2013 of the Second Division of public
respondent Commission on Elections (COMELEC), and April 23, 2013 of public
respondent COMELEC, sitting En Banc, must be ANNULLED and SET ASIDE.
 Private respondent Joseph Ejercito Estrada continues to suffer the penalty of
perpetual absolute disqualification and is thereby DISQUALIFIED from
exercising the right to vote in any election for any popular elective office or to be
elected to such office.
Petitions dismissed, Resolution of Commission on Elections, Second Division
dated April 1, 2013 and Resolution of Commission on Elections En Banc dated
April 23, 2013 affirmed.
Notes.—Commutation of sentence is a prerogative of the Chief Executive —
the recommendation of the Bureau of Pardons and Parole is just a mere
recommendation, and until and unless approved by the President, there is no
commutation to speak of. (Barredo vs. Vinarao, 529 SCRA 120 [2007])
A forfeiture case under Republic Act No. 1379 arises out of a cause of action
separate and different from a plunder case, thus negating the notion that the crime
of plunder absorbs the forfeiture case. (Garcia vs. Sandiganbayan, 603 SCRA 348
[2009])
——o0o——
G.R. No. 187298 July 03, 2012
JAMAR M. KULAYAN, TEMOGEN S. TULAWIE, HJI. MOH. YUSOP ISMI,
JULHAJAN AWADI, and SPO1 SATTAL H. JADJULI, Petitioners,
vs.
GOV. ABDUSAKUR M. TAN, in his capacity as Governor of Sulu; GEN. JUANCHO
SABAN, COL. EUGENIO CLEMEN PN, P/SUPT. JULASIRIM KASIM and P/SUPT.
BIENVENIDO G. LATAG, in their capacity as officers of the Phil. Marines and
Phil. National Police, respectively, Respondents.
DECISION
SERENO, J.:
On 15 January 2009, three members from the International Committee of the Red
Cross (ICRC) were kidnapped in the vicinity of the Provincial Capitol in Patikul,
Sulu.1 Andres Notter, a Swiss national and head of the ICRC in Zamboanga City,
Eugenio Vagni, an Italian national and ICRC delegate, and Marie Jean Lacaba, a
Filipino engineer, were purportedly inspecting a water and sanitation project for the
Sulu Provincial Jail when inspecting a water and sanitation project for the Sulu
Provincial Jail when they were seized by three armed men who were later confirmed
to be members of the Abu Sayyaf Group (ASG).2 The leader of the alleged kidnappers
was identified as Raden Abu, a former guard at the Sulu Provincial Jail. News reports
linked Abu to Albader Parad, one of the known leaders of the Abu Sayyaf.
On 21 January 2009, a task force was created by the ICRC and the Philippine National
Police (PNP), which then organized a parallel local group known as the Local Crisis
Committee.3 The local group, later renamed Sulu Crisis Management Committee,
convened under the leadership of respondent Abdusakur Mahail Tan, the Provincial
Governor of Sulu. Its armed forces component was headed by respondents General
Juancho Saban, and his deputy, Colonel Eugenio Clemen. The PNP component was
headed by respondent Police Superintendent Bienvenido G. Latag, the Police Deputy
Director for Operations of the Autonomous Region of Muslim Mindanao (ARMM). 4
Governor Tan organized the Civilian Emergency Force (CEF), a group of armed male
civilians coming from different municipalities, who were redeployed to surrounding
areas of Patikul.5 The organization of the CEF was embodied in a "Memorandum of
Understanding"6 entered into
between three parties: the provincial government of Sulu, represented by Governor
Tan; the Armed Forces of the Philippines, represented by Gen. Saban; and the
Philippine National Police, represented by P/SUPT. Latag. The Whereas clauses of
the Memorandum alluded to the extraordinary situation in Sulu, and the willingness of
civilian supporters of the municipal mayors to offer their services in order that "the early
and safe rescue of the hostages may be achieved."7
This Memorandum, which was labeled ‘secret’ on its all pages, also outlined the
responsibilities of each of the party signatories, as follows:
Responsibilities of the Provincial Government:
1) The Provincial Government shall source the funds and logistics needed for
the activation of the CEF;
2) The Provincial Government shall identify the Local Government Units
which shall participate in the operations and to propose them for the approval
of the parties to this agreement;
3) The Provincial Government shall ensure that there will be no unilateral
action(s) by the CEF without the knowledge and approval by both parties.
Responsibilities of AFP/PNP/ TF ICRC (Task Force ICRC):
1) The AFP/PNP shall remain the authority as prescribed by law in military
operations and law enforcement;
2) The AFP/PNP shall ensure the orderly deployment of the CEF in the
performance of their assigned task(s);
3) The AFP/PNP shall ensure the safe movements of the CEF in identified
areas of operation(s);
4) The AFP/PNP shall provide the necessary support and/or assistance as
called for in the course of operation(s)/movements of the CEF. 8
Meanwhile, Ronaldo Puno, then Secretary of the Department of Interior and Local
Government, announced to the media that government troops had cornered some one
hundred and twenty (120) Abu Sayyaf members along with the three (3)
hostages.9 However, the ASG made
contact with the authorities and demanded that the military pull its troops back from
the jungle area.10 The government troops yielded and went back to their barracks; the
Philippine Marines withdrew to their camp, while police and civilian forces pulled back
from the terrorists’ stronghold by ten (10) to fifteen (15) kilometers. Threatening that
one of the hostages will be beheaded, the ASG further demanded the evacuation of
the military camps and bases in the different barangays in Jolo. 11 The authorities were
given no later than 2:00 o’clock in the afternoon of 31 March 2009 to comply.12
On 31 March 2009, Governor Tan issued Proclamation No. 1, Series of 2009
(Proclamation 1-09), declaring a state of emergency in the province of Sulu.13 It cited
the kidnapping incident as a ground for the said declaration, describing it as a terrorist
act pursuant to the Human Security
Act (R.A. 9372). It also invoked Section 465 of the Local Government Code of 1991
(R.A. 7160), which bestows on the Provincial Governor the power to carry out
emergency measures during man-made and natural disasters and calamities, and to
call upon the appropriate national law enforcement agencies to suppress disorder and
lawless violence.
In the same Proclamation, respondent Tan called upon the PNP and the CEF to set
up checkpoints and chokepoints, conduct general search and seizures including
arrests, and other actions necessary to ensure public safety. The pertinent portion of
the proclamation states:
NOW, THEREFORE, BY VIRTUE OF THE POWERS VESTED IN ME BY LAW, I,
ABDUSAKUR MAHAIL TAN, GOVERNOR OF THE PROVINCE OF SULU, DO
HEREBY DECLARE A STATE OF EMERGENCY IN THE PROVINCE OF SULU, AND
CALL ON THE PHILIPPINE NATIONAL POLICE WITH THE ASSISTANCE OF THE
ARMED FORCES OF THE PHILIPPINES AND THE CIVILIAN EMERGENCY FORCE
TO IMPLEMENT THE FOLLOWING:
1. The setting-up of checkpoints and chokepoints in the province;
2. The imposition of curfew for the entire province subject to such Guidelines
as may be issued by proper authorities;
3. The conduct of General Search and Seizure including arrests in the pursuit
of the kidnappers and their supporters; and
4. To conduct such other actions or police operations as may be necessary
to ensure public safety.
DONE AT THE PROVINCIAL CAPITOL, PROVINCE OF SULU THIS
31STDAY OF MARCH 2009. Sgd. Abdusakur M. Tan Governor.14
On 1 April 2009, SPO1 Sattal Jadjuli was instructed by his superior to report to
respondent P/SUPT. Julasirim Kasim.15 Upon arriving at the police station, he was
booked, and interviewed about his relationship to Musin, Jaiton, and Julamin, who
were all his deceased relatives. Upon admitting that he was indeed related to the three,
he was detained. After a few hours, former Punong Barangay Juljahan Awadi, Hadji
Hadjirul Bambra, Abdugajir Hadjirul, as well as PO2 Marcial Hajan, SPO3 Muhilmi
Ismula, Punong Barangay Alano Mohammad and jeepney driver Abduhadi Sabdani,
were also arrested.16 The affidavit17 of the apprehending officer alleged that they were
suspected ASG supporters and were being arrested under Proclamation 1-09. The
following day, 2 April 2009, the hostage Mary Jane Lacaba was released by the ASG.
On 4 April 2009, the office of Governor Tan distributed to civic organizations, copies of
the "Guidelines for the Implementation of Proclamation No. 1, Series of 2009 Declaring
a State of Emergency in the Province of Sulu." 18These Guidelines suspended all
Permits to Carry
Firearms Outside of Residence (PTCFORs) issued by the Chief of the PNP, and
allowed civilians to seek exemption from the gun ban only by applying to the Office of
the Governor and obtaining the appropriate identification cards. The said guidelines
also allowed general searches and seizures in designated checkpoints and
chokepoints.
On 16 April 2009, Jamar M. Kulayan, Temogen S. Tulawie, Hadji Mohammad Yusop
Ismi, Ahajan Awadi, and SPO1 Sattal H. Jadjuli, residents of Patikul, Sulu, filed the
present Petition for Certiorari and Prohibition,19 claiming that Proclamation 1-09 was
issued with grave abuse of discretion amounting to lack or excess of jurisdiction, as it
threatened fundamental freedoms guaranteed under Article III of the 1987
Constitution.
Petitioners contend that Proclamation No. 1 and its Implementing Guidelines were
issued ultra vires, and thus null and void, for violating Sections 1 and 18, Article VII of
the Constitution, which grants the President sole authority to exercise emergency
powers and calling-out powers as the chief executive of the Republic and commander-
in-chief of the armed forces.20 Additionally, petitioners claim that the Provincial
Governor is not authorized by any law to create civilian armed forces under his
command, nor regulate and limit the issuances of PTCFORs to his own private army.
In his Comment, Governor Tan contended that petitioners violated the doctrine on
hierarchy of courts when they filed the instant petition directly in the court of last resort,
even if both the Court of Appeals (CA) and the Regional Trial Courts (RTC) possessed
concurrent jurisdiction with the
Supreme Court under Rule 65.21 This is the only procedural defense raised by
respondent Tan. Respondents Gen. Juancho Saban, Col. Eugenio Clemen, P/SUPT.
Julasirim Kasim, and P/SUPT. Bienvenido Latag did not file their respective
Comments.1âwphi1
On the substantive issues, respondents deny that Proclamation 1-09 was issued ultra
vires, as Governor Tan allegedly acted pursuant to Sections 16 and 465 of the Local
Government Code, which empowers the Provincial Governor to carry out emergency
measures during calamities and disasters, and to call upon the appropriate national
law enforcement agencies to suppress disorder, riot, lawless violence, rebellion or
sedition.22 Furthermore, the Sangguniang Panlalawigan of Sulu authorized the
declaration of a state of emergency as evidenced by Resolution No. 4, Series of 2009
issued on 31 March 2009 during its regular session.23
The threshold issue in the present case is whether or not Section 465, in relation to
Section 16, of the Local Government Code authorizes the respondent governor to
declare a state of emergency, and exercise the powers enumerated under
Proclamation 1-09, specifically the conduct of general searches and seizures.
Subsumed herein is the secondary question of whether or not the provincial governor
is similarly clothed with authority to convene the CEF under the said provisions.
We grant the petition.
I. Transcendental public Importance warrants a relaxation of the Doctrine of Hierarchy
of Courts
We first dispose of respondents’ invocation of the doctrine of hierarchy of courts which
allegedly prevents judicial review by this Court in the present case, citing for this
specific purpose, Montes v. Court of Appeals and Purok Bagong Silang Association,
Inc. v. Yuipco.24 Simply put, the
doctrine provides that where the issuance of an extraordinary writ is also within the
competence of the CA or the RTC, it is in either of these courts and not in the Supreme
Court, that the specific action for the issuance of such writ must be sought unless
special and important laws are clearly and specifically set forth in the petition. The
reason for this is that this Court is a court of last resort and must so remain if it is to
perform the functions assigned to it by the Constitution and immemorial tradition. It
cannot be burdened with deciding cases in the first instance. 25
The said rule, however, is not without exception. In Chavez v. PEA-Amari,26 the Court
stated:
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly
from the Court. The principle of hierarchy of courts applies generally to cases involving
factual questions. As it is not a trier of facts, the Court cannot entertain cases involving
factual issues. The instant case, however, raises constitutional questions of
transcendental importance to the public. The Court can resolve this case without
determining any factual issue related to the case. Also, the instant case is a petition
for mandamus which falls under the original jurisdiction of the Court under Section 5,
Article VIII of the Constitution. We resolve to exercise primary jurisdiction over the
instant case.27
The instant case stems from a petition for certiorari and prohibition, over which the
Supreme Court possesses original jurisdiction.28 More crucially, this case involves acts
of a public official which pertain to restrictive custody, and is thus impressed with
transcendental public importance that would warrant the relaxation of the general rule.
The Court would be remiss in its constitutional duties were it to dismiss the present
petition solely due to claims of judicial hierarchy.
In David v. Macapagal-Arroyo,29 the Court highlighted the transcendental public
importance involved in cases that concern restrictive custody, because judicial review
in these cases serves as "a manifestation of the crucial defense of civilians ‘in police
power’ cases due to the diminution of their basic liberties under the guise of a state of
emergency."30 Otherwise, the importance of the high tribunal as the court of last resort
would be put to naught, considering the nature of "emergency" cases, wherein the
proclamations and issuances are inherently short-lived. In finally disposing of the claim
that the issue had become moot and academic, the Court also cited transcendental
public importance as an exception, stating:
Sa kabila ng pagiging akademiko na lamang ng mga isyu tungkol sa mahigpit na
pangangalaga (restrictive custody) at pagmonitor ng galaw (monitoring of movements)
ng nagpepetisyon, dedesisyunan namin ito (a) dahil sa nangingibabaw na interes ng
madla na nakapaloob dito,
(b) dahil sa posibilidad na maaaring maulit ang pangyayari at (c) dahil kailangang
maturuan ang kapulisan tungkol dito.
The moot and academic principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
[the] constitutional issue raised requires formulation of controlling principles to guide
the bench, the bar, and the public; and fourth, the case is capable of repetition yet
evading review.
…There is no question that the issues being raised affect the public interest, involving
as they do the people’s basic rights to freedom of expression, of assembly and of the
press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and
in the present petitions, the military and the police, on the extent of the protection given
by constitutional guarantees. And lastly, respondents contested actions are capable of
repetition. Certainly, the petitions are subject to judicial review.
Evidently, the triple reasons We advanced at the start of Our ruling are justified under
the foregoing exceptions. Every bad, unusual incident where police officers figure in
generates public interest and people watch what will be done or not done to them. Lack
of disciplinary steps taken against them erode public confidence in the police
institution. As petitioners themselves assert, the restrictive custody of policemen under
investigation is an existing practice, hence, the issue is bound to crop up every now
and then. The matter is capable of repetition or susceptible of recurrence. It better be
resolved now for the education and guidance of all concerned. 31 (Emphasis supplied)
Hence, the instant petition is given due course, impressed as it is with transcendental
public importance.
II. Only the President is vested with calling-out powers, as the commander-in-chief of
the Republic
i. One executive, one commander-in-chief
As early as Villena v. Secretary of Interior,32 it has already been established that there
is one repository of executive powers, and that is the President of the Republic. This
means that when Section 1, Article VII of the Constitution speaks of executive power,
it is granted to the President and no one else. 33 As emphasized by Justice Jose P.
Laurel, in his ponencia in Villena:
With reference to the Executive Department of the government, there is one purpose
which is crystal-clear and is readily visible without the projection of judicial searchlight,
and that is the establishment of a single, not plural, Executive. The first section of
Article VII of the Constitution, dealing with the Executive Department, begins with the
enunciation of the principle that "The executive power shall be vested in a President
of the Philippines." This means that the President of the Philippines is the Executive of
the Government of the Philippines, and no other.34
Corollarily, it is only the President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article VI, of the Constitution, as
well as what became known as the calling-out powers under Section 7, Article VII
thereof.
ii. The exceptional character of Commander-in-Chief powers dictate that they are
exercised by one president
Springing from the well-entrenched constitutional precept of One President is the
notion that there are certain acts which, by their very nature, may only be performed
by the president as the Head of the State. One of these acts or prerogatives is the
bundle of Commander-in-Chief powers to which the "calling-out" powers constitutes a
portion. The President’s Emergency Powers, on the other hand, is balanced only by
the legislative act of Congress, as embodied in the second paragraph of Section 23,
Article 6 of the Constitution:
Article 6, Sec 23(2). In times of war or other national emergency, the Congress may,
by law, authorize the President, for a limited period and subject to such restrictions as
it may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such powers
shall cease upon the next adjournment thereof.35
Article 7, Sec 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a
call.36
The power to declare a state of martial law is subject to the Supreme Court’s authority
to review the factual basis thereof. 37 By constitutional fiat, the calling-out powers,
which is of lesser gravity than the power to declare martial law, is bestowed upon the
President alone. As noted in Villena, "(t)here are certain constitutional powers and
prerogatives of the Chief Executive of the Nation which must be exercised by him in
person and no amount of approval or ratification will validate the exercise of any of
those powers by any other person. Such, for instance, is his power to suspend the writ
of habeas corpus and proclaim martial law x x x.38
Indeed, while the President is still a civilian, Article II, Section 339 of the Constitution
mandates that civilian authority is, at all times, supreme over the military, making the
civilian president the nation’s supreme military leader. The net effect of Article II,
Section 3, when read with Article VII,
Section 18, is that a civilian President is the ceremonial, legal and administrative head
of the armed forces. The Constitution does not require that the President must be
possessed of military training and talents, but as Commander-in-Chief, he has the
power to direct military operations and to determine military strategy. Normally, he
would be expected to delegate the actual command of the armed forces to military
experts; but the ultimate power is his.40 As Commander-in-Chief, he is authorized to
direct the movements of the naval and military forces placed by law at his command,
and to employ them in the manner he may deem most effectual. 41
In the case of Integrated Bar of the Philippines v. Zamora,42 the Court had occasion to
rule that the calling-out powers belong solely to the President as commander-in-chief:
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in
his wisdom. This is clear from the intent of the framers and from the text of the
Constitution itself. The Court, thus, cannot be called upon to overrule the President’s
wisdom or substitute its own. However, this does not prevent an examination of
whether such power was exercised within permissible constitutional limits or whether
it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the
necessity of calling out the armed forces, it is incumbent upon the petitioner to show
that the President’s decision is totally bereft of factual basis.
There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power.43(Emphasis supplied)
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis thereof.
However, there is no such equivalent provision dealing with the revocation or review
of the President’s action to call out the armed forces. The distinction places the calling
out power in a different category from the power to declare martial law and the power
to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the three powers and provided for
their revocation and review without any qualification.44
That the power to call upon the armed forces is discretionary on the president is clear
from the deliberation of the Constitutional Commission:
FR. BERNAS. It will not make any difference. I may add that there is a graduated
power of the President as Commander-in-Chief. First, he can call out such Armed
Forces as may be necessary to suppress lawless violence; then he can suspend the
privilege of the writ of habeas corpus, then he can impose martial law. This is a
graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of
the writ of habeas corpus, his judgment is subject to review. We are making it subject
to review by the Supreme Court and subject to concurrence by the National Assembly.
But when he exercises this lesser power of calling on the Armed Forces, when he says
it is necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xxx xxx xxx
MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review.
The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power
compared to the power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.
x x x Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion.45 (Emphasis Supplied)
In the more recent case of Constantino, Jr. v. Cuisia,46 the Court characterized these
powers as exclusive to the President, precisely because they are of exceptional import:
These distinctions hold true to this day as they remain embodied in our fundamental
law. There are certain presidential powers which arise out of exceptional
circumstances, and if exercised, would involve the suspension of fundamental
freedoms, or at least call for the supersedence of executive prerogatives over those
exercised by co-equal branches of government. The declaration of martial law, the
suspension of the writ of habeas corpus, and the exercise of the pardoning power,
notwithstanding the judicial determination of guilt of the accused, all fall within this
special class that demands the exclusive exercise by the President of the
constitutionally vested power. The list is by no means exclusive, but there must be a
showing that the executive power in question is of similar gravitas and exceptional
import.47
In addition to being the commander-in-chief of the armed forces, the President also
acts as the leader of the country’s police forces, under the mandate of Section 17,
Article VII of the Constitution, which provides that, "The President shall have control of
all the executive departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed." During the deliberations of the Constitutional Commission on the
framing of this provision, Fr. Bernas defended the retention of the word "control,"
employing the same rationale of singularity of the office of the president, as the only
Executive under the presidential form of government. 48
Regarding the country’s police force, Section 6, Article XVI of the Constitution states
that: "The State shall establish and maintain one police force, which shall be national
in scope and civilian in character, to be administered and controlled by a national police
commission. The authority of local executives over the police units in their jurisdiction
shall be provided by law."49
A local chief executive, such as the provincial governor, exercises operational
supervision over the police,50 and may exercise control only in day-to-day
operations, viz:
Mr. Natividad: By experience, it is not advisable to provide either in our Constitution or
by law full control of the police by the local chief executive and local executives, the
mayors. By our experience, this has spawned warlordism, bossism and sanctuaries
for vices and abuses. If the national government does not have a mechanism to
supervise these 1,500 legally, technically separate police forces, plus 61 city police
forces, fragmented police system, we will have a lot of difficulty in presenting a modern
professional police force. So that a certain amount of supervision and control will have
to be exercised by the national government.
For example, if a local government, a town cannot handle its peace and order problems
or police problems, such as riots, conflagrations or organized crime, the national
government may come in, especially if requested by the local executives. Under that
situation, if they come in under such an extraordinary situation, they will be in control.
But if the day-to-day business of police investigation of crime, crime prevention,
activities, traffic control, is all lodged in the mayors, and if they are in complete
operational control of the day-to-day business of police service, what the national
government would control would be the administrative aspect.
xxx xxx xxx
Mr. de los Reyes: so the operational control on a day-to-day basis, meaning, the usual Mr. Rodrigo: Control and supervision.
duties being performed by the ordinary policemen, will be under the supervision of the
local executives? Mr. Natividad: Yes, in fact, the National Police Commission is under the Office of the
President.52
Mr. Natividad: Yes, Madam President.
In the discussions of the Constitutional Commission regarding the above provision it is
xxx xxx xxx clear that the framers never intended for local chief executives to exercise unbridled
control over the police in emergency situations. This is without prejudice to their
Mr. de los Reyes: But in exceptional cases, even the operational control can be taken authority over police units in their jurisdiction as provided by law, and their prerogative
over by the National Police Commission? to seek assistance from the police in day to day situations, as contemplated by the
Constitutional Commission. But as a civilian agency of the government, the police,
through the NAPOLCOM, properly comes within, and is subject to, the exercise by the
Mr. Natividad: If the situation is beyond the capacity of the local President of the power of executive control.53
governments.51 (Emphases supplied)
iii. The provincial governor does not possess the same calling-out powers as the
Furthermore according to the framers, it is still the President who is authorized to President
exercise supervision and control over the police, through the National Police
Commission:
Given the foregoing, respondent provincial governor is not endowed with the power to
call upon the armed forces at his own bidding. In issuing the assailed proclamation,
Mr. Rodrigo: Just a few questions. The President of the Philippines is the Commander- Governor Tan exceeded his authority when he declared a state of emergency and
in-Chief of all the armed forces. called upon the Armed Forces, the police, and his own Civilian Emergency Force. The
calling-out powers contemplated under the Constitution is exclusive to the President.
Mr. Natividad: Yes, Madam President. An exercise by another official, even if he is the local chief executive, is ultra vires, and
may not be justified by the invocation of Section 465 of the Local Government Code,
Mr. Rodrigo: Since the national police is not integrated with the armed forces, I do not as will be discussed subsequently.
suppose they come under the Commander-in-Chief powers of the President of the
Philippines. Respondents, however, justify this stance by stating that nowhere in the seminal case
of David v. Arroyo, which dealt squarely with the issue of the declaration of a state of
Mr. Natividad: They do, Madam President. By law, they are under the supervision and emergency, does it limit the said authority to the President alone. Respondents
control of the President of the Philippines. contend that the ruling in David expressly limits the authority to declare a national
emergency, a condition which covers the entire country, and does not include
emergency situations in local government units. 54 This claim is belied by the clear
Mr. Rodrigo: Yes, but the President is not the Commander-in-Chief of the national intent of the framers that in all situations involving threats to security, such as lawless
police. violence, invasion or rebellion, even in localized areas, it is still the President who
possesses the sole authority to exercise calling-out powers. As reflected in the Journal
Mr. Natividad: He is the President. of the Constitutional Commission:

Mr. Rodrigo: Yes, the Executive. But they do not come under that specific provision
that the President is the Commander-in-Chief of all the armed forces.
Mr. Natividad: No, not under the Commander-in-Chief provision.
Mr. Rodrigo: There are two other powers of the President. The
President has control over ministries, bureaus and offices, and supervision over local
governments. Under which does the police fall, under control or under supervision?
Mr. Natividad: Both, Madam President.
Thereafter, Mr. Padilla proposed on line 29 to insert the phrase OR PUBLIC
DISORDER in lieu of "invasion or rebellion." Mr. Sumulong stated that the committee
could not accept the amendment because under the first section of Section 15, the
President may call out and make use of the armed forces to prevent or suppress not
only lawless violence but even invasion or rebellion without declaring martial law. He
observed that by deleting "invasion or rebellion" and substituting PUBLIC DISORDER,
the President would have to declare martial law before he can make use of the armed
forces to prevent or suppress lawless invasion or rebellion.
Mr. Padilla, in reply thereto, stated that the first sentence contemplates a lighter
situation where there is some lawless violence in a small portion of the country or public
disorder in another at which times, the armed forces can be called to prevent or
suppress these incidents. He noted that the Commander-in-Chief can do so in a minor
degree but he can also exercise such powers should the situation worsen. The words
"invasion or rebellion" to be eliminated on line 14 are covered by the following sentence
which provides for "invasion or rebellion." He maintained that the proposed
amendment does not mean that under such circumstances, the President cannot call
on the armed forces to prevent or suppress the same.55 (Emphasis supplied)
III. Section 465 of the Local
Government Code cannot be invoked to justify the powers enumerated under
Proclamation 1-09
Respondent governor characterized the kidnapping of the three ICRC workers as a
terroristic act, and used this incident to justify the exercise of the powers enumerated
under Proclamation 1-09.56 He invokes Section 465, in relation to Section 16, of the
Local Government Code, which purportedly allows the governor to carry out
emergency measures and call upon the appropriate national law enforcement
agencies for assistance. But a closer look at the said proclamation shows that there is
no provision in the Local Government Code nor in any law on which the broad and
unwarranted powers granted to the Governor may be based.
Petitioners cite the implementation of "General Search and Seizure including arrests
in the pursuit of the kidnappers and their supporters,"57 as being violative of the
constitutional proscription on general search warrants and general seizures.
Petitioners rightly assert that this alone would be sufficient to render the proclamation
void, as general searches and seizures are proscribed, for being violative of the rights
enshrined in the Bill of Rights, particularly:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized. 58
In fact, respondent governor has arrogated unto himself powers exceeding even the
martial law powers of the President, because as the Constitution itself declares, "A
state of martial law does not suspend the operation of the Constitution, nor supplant
the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of the jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ."59
We find, and so hold, that there is nothing in the Local Government Code which justifies
the acts sanctioned under the said Proclamation. Not even Section 465 of the said
Code, in relation to Section 16, which states:
Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation.
xxx xxx xxx
(b) For efficient, effective and economical governance the purpose of which is the
general welfare of the province and its inhabitants pursuant to Section 16 of this Code,
the provincial governor shall:
(1) Exercise general supervision and control over all programs, projects, services, and
activities of the provincial government, and in this connection, shall:
xxx xxx xxx
(vii) Carry out such emergency measures as may be necessary during and in the
aftermath of man-made and natural disasters and calamities;
(2) Enforce all laws and ordinances relative to the governance of the province and the
exercise of the appropriate corporate powers provided for under Section 22 of this
Code, implement all approved policies, programs, projects, services and activities of
the province and, in addition to the foregoing, shall:
xxx xxx xxx
(vi) Call upon the appropriate national law enforcement agencies to suppress disorder,
riot, lawless violence, rebellion or sedition or to apprehend violators of the law when
public interest so requires and the police forces of the component city or municipality
where the disorder or violation is happening are inadequate to cope with the situation
or the violators.
Section 16. General Welfare. - Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which
are essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants. (Emphases supplied)
Respondents cannot rely on paragraph 1, subparagraph (vii) of Article 465 above, as
the said provision expressly refers to calamities and disasters, whether man-made or
natural. The governor, as local chief executive of the province, is certainly empowered
to enact and implement emergency measures during these occurrences. But the
kidnapping incident in the case at bar cannot be considered as a calamity or a disaster.
Respondents cannot find any legal mooring under this provision to justify their actions.
Paragraph 2, subparagraph (vi) of the same provision is equally inapplicable for two
reasons. First, the Armed Forces of the Philippines does not fall under the category of
a "national law enforcement agency," to which the National Police Commission
(NAPOLCOM) and its departments belong.
Its mandate is to uphold the sovereignty of the Philippines, support the Constitution,
and defend the Republic against all enemies, foreign and domestic. Its aim is also to
secure the integrity of the national territory.60
Second, there was no evidence or even an allegation on record that the local police
forces were inadequate to cope with the situation or apprehend the violators. If they
were inadequate, the recourse of the provincial governor was to ask the assistance of
the Secretary of Interior and Local Government, or such other authorized officials, for
the assistance of national law enforcement agencies.
The Local Government Code does not involve the diminution of central powers
inherently vested in the National Government, especially not the prerogatives solely
granted by the Constitution to the President in matters of security and defense.
The intent behind the powers granted to local government units is fiscal, economic,
and administrative in nature.1âwphi1 The Code is concerned only with powers that
would make the delivery of basic services more effective to the constituents, 61 and
should not be unduly stretched to confer calling-out powers on local executives.
In the sponsorship remarks for Republic Act 7160, it was stated that the devolution of
powers is a step towards the autonomy of local government units (LGUs), and is
actually an experiment whose success heavily relies on the power of taxation of the
LGUs. The underpinnings of the Code can be found in Section 5, Article II of the 1973
Constitution, which allowed LGUs to create their own sources of revenue. 62 During the
interpellation made by Mr. Tirol addressed to Mr. de Pedro, the latter emphasized that
"Decentralization is an administrative concept and the process of shifting and
delegating power from a central point to subordinate levels to promote independence,
responsibility, and quicker decision-making. … (I)t does not involve any transfer of final
authority from the national to field levels, nor diminution of central office powers and
responsibilities. Certain government agencies, including the police force, are
exempted from the decentralization process because their functions are not inherent
in local government units."63
IV. Provincial governor is not authorized to convene CEF
Pursuant to the national policy to establish one police force, the organization of private
citizen armies is proscribed. Section 24 of Article XVIII of the Constitution mandates
that:
Private armies and other armed groups not recognized by duly constituted authority
shall be dismantled. All paramilitary forces including Civilian Home Defense Forces
(CHDF) not consistent with the citizen armed force established in this Constitution,
shall be dissolved or, where appropriate, converted into the regular force.
Additionally, Section 21of Article XI states that, "The preservation of peace and order
within the regions shall be the responsibility of the local police agencies which shall be
organized, maintained, supervised, and utilized in accordance with applicable laws.
The defense and security of the regions shall be the responsibility of the National
Government."
Taken in conjunction with each other, it becomes clear that the Constitution does not
authorize the organization of private armed groups similar to the CEF convened by the
respondent Governor. The framers of the Constitution were themselves wary of armed
citizens’ groups, as shown in the following proceedings:
MR. GARCIA: I think it is very clear that the problem we have here is a paramilitary
force operating under the cloak, under the mantle of legality is creating a lot of
problems precisely by being able to operate as an independent private army for many
regional warlords. And at the same time, this I think has been the thrust, the intent of
many of the discussions and objections to the paramilitary units and the armed groups.
MR. PADILLA: My proposal covers two parts: the private armies of political warlords
and other armed torces not recognized by constituted authority which shall be
dismantled and dissolved. In my trips to the provinces, I heard of many abuses
committed by the CHDF (Civilian Home Defense Forces), specially in Escalante,
Negros Occidental. But I do not know whether a particular CHDF is approved or
authorized by competent authority. If it is not authorized, then the CHDF will have to
be dismantled. If some CHDFs, say in other provinces, are authorized by constituted
authority, by the Armed Forces of the Philippines, through the Chief of Staff or the
Minister of National Defense, if they are recognized and authorized, then they will not
be dismantled. But I cannot give a categorical answer to any specific CHDF unit, only
the principle that if they are armed forces which are not authorized, then they should
be dismantled. 64 (Emphasis supplied)
Thus, with the discussions in the Constitutional Commission as guide, the creation of
the Civilian Emergency Force (CEF) in the present case, is also invalid.
WHEREFORE, the instant petition is GRANTED. Judgment is rendered commanding
respondents to desist from further proceedings m implementing Proclamation No. 1,
Series of 2009, and its Implementing Guidelines. The said proclamation and guidelines
are hereby declared NULL and VOID for having been issued in grave abuse of
discretion, amounting to lack or excess of jurisdiction.
SO ORDERED.
G.R. No. 190259. June 7, 2011.*
DATU ZALDY UY AMPATUAN, ANSARUDDIN ADIONG, REGIE SAHALI-
GENERALE, petitioners, vs. HON. RONALDO PUNO, in his capacity as
Secretary of the Department of Interior and Local Government and alter-ego of
President Gloria Macapagal-Arroyo, and anyone acting in his stead and on behalf
of the President of the Philippines, ARMED FORCES OF THE PHILIPPINES
(AFP), or any of their units operating in the Autonomous Region in Muslim
Mindanao (ARMM), and PHILIPPINE NATIONAL POLICE, or any of their units
operating in ARMM, respondents.
Administrative Law; State of Emergency; The Department of Interior and
Local Government (DILG) Secretary did not take over the administration or
operations of the Autonomous Region of Muslim Mindanao (ARMM).—The DILG
Secretary did not take over control of the powers of the ARMM. After law
enforcement agents took respondent Governor of ARMM into custody for alleged
complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner
Ansaruddin Adiong, assumed the vacated post on December 10, 2009 pursuant to
the rule on succession found in Article VII, Section 12, of RA 9054. In turn, Acting
Governor Adiong named the then Speaker of the ARMM Regional Assembly,
petitioner Sahali-Generale, Acting ARMM Vice-Governor. In short, the DILG
Secretary did not take over the administration or operations of the ARMM.
Same; Same; The President did not proclaim a national emergency, only a
state of emergency in the three places mentioned; the calling out of the armed forces
to prevent or suppress lawless violence in such places is a power that the
Constitution directly vests in the President; she did not need a congressional
authority to exercise the same.—The President did not proclaim a national
emergency, only a state of emergency in the three places mentioned. And she did
not act pursuant to any law enacted by Congress that authorized her to
_______________
* EN BANC.
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VOL. 651, JUNE 7, 2011 229
Ampatuan vs. Puno
exercise extraordinary powers. The calling out of the armed forces to prevent
or suppress lawless violence in such places is a power that the Constitution directly
vests in the President. She did not need a congressional authority to exercise the
same.
Same; Same; It is clearly to the President that the Constitution entrusts the
determination of the need for calling out the armed forces to prevent and suppress
lawless violence; Unless it is shown that such determination was attended by grave
abuse of discretion, the court will accord respect to the President’s judgment.—
While it is true that the Court may inquire into the factual bases for the President’s
exercise of the above power, it would generally defer to her judgment on the matter.
As the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora,
338 SCRA 81 (2000), it is clearly to the President that the Constitution entrusts
the determination of the need for calling out the armed forces to prevent and
suppress lawless violence. Unless it is shown that such determination was
attended by grave abuse of discretion, the Court will accord respect to the
President’s judgment.
SPECIAL CIVIL ACTION in the Supreme Court. Prohibition.
The facts are stated in the opinion of the Court.
Fortun, Narvasa & Salazar for petitioners.
The Solicitor General for respondents.
ABAD, J.:
On November 24, 2009, the day after the gruesome massacre of 57 men and
women, including some news reporters, then President Gloria Macapagal-Arroyo
issued Proclamation 1946,1 placing “the Provinces of Maguindanao and Sultan
Kudarat and the City of Cotabato under a state of emergency.” She directed the
Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP)
“to undertake
_______________
1 Rollo, p. 34.
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230 SUPREME COURT REPORTS ANNOTATED
Ampatuan vs. Puno
such measures as may be allowed by the Constitution and by law to prevent and
suppress all incidents of lawless violence” in the named places.
Three days later or on November 27, President Arroyo also issued
Administrative Order 273 (AO 273)2 “transferring” supervision of the Autonomous
Region of Muslim Mindanao (ARMM) from the Office of the President to the
Department of Interior and Local Government (DILG). But, due to issues raised
over the terminology used in AO 273, the President issued Administrative Order
273-A (AO 273-A) amending the former, by “delegating” instead of “transferring”
supervision of the ARMM to the DILG.3
Claiming that the President’s issuances encroached on the ARMM’s autonomy,
petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-
Generale, all ARMM officials,4 filed this petition for prohibition under Rule 65.
They alleged that the proclamation and the orders empowered the DILG Secretary
to take over ARMM’s operations and seize the regional government’s powers, in
violation of the principle of local autonomy under Republic Act 9054 (also known
as the Expanded ARMM Act) and the Constitution. The President gave the DILG
Secretary the power to exercise, not merely administrative supervision, but control
over the ARMM since the latter could suspend ARMM officials and replace them.5
Petitioner ARMM officials claimed that the President had no factual basis for
declaring a state of emergency, especially in the Province of Sultan Kudarat and
the City of Cotabato, where no critical violent incidents occurred. The deployment
_______________
2 Id., at p. 36.
3 Id., at p. 80.
4 Ampatuan, Adiong and Sahali-Generale were, respectively, the Governor,
Vice-Governor and Speaker of the Legislative Assembly of the ARMM at that time.
5 Rollo, pp. 14-17.
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VOL. 651, JUNE 7, 2011 231
Ampatuan vs. Puno
of troops and the taking over of the ARMM constitutes an invalid exercise of the
President’s emergency powers.6 Petitioners asked that Proclamation 1946 as well
as AOs 273 and 273-A be declared unconstitutional and that respondents DILG
Secretary, the AFP, and the PNP be enjoined from implementing them.
In its comment for the respondents,7 the Office of the Solicitor General (OSG)
insisted that the President issued Proclamation 1946, not to deprive the ARMM of
its autonomy, but to restore peace and order in subject places. 8 She issued the
proclamation pursuant to her “calling out” power9 as Commander-in-Chief under
the first sentence of Section 18, Article VII of the Constitution. The determination
of the need to exercise this power rests solely on her wisdom. 10 She must use her
judgment based on intelligence reports and such best information as are available
to her to call out the armed forces to suppress and prevent lawless violence
wherever and whenever these reared their ugly heads.
On the other hand, the President merely delegated through AOs 273 and 273-
A her supervisory powers over the ARMM to the DILG Secretary who was her alter
ego any way. These orders did not authorize a take over of the ARMM. They did
not give him blanket authority to suspend or replace ARMM officials. 11 The
delegation was necessary to facilitate the investigation of the mass
killings.12 Further, the assailed proclamation and administrative orders did not
provide for the exercise of emergency powers.13
_______________
6 Id., at pp. 20-22.
7 Id., at p. 63.
8 Id., at pp. 85, 87, 95.
9 Id., at p. 98.
10 Id., at p. 76.
11 Id., at p. 95.
12 Id., at p. 78.
13 Id., at p. 110.
232
232 SUPREME COURT REPORTS ANNOTATED
Ampatuan vs. Puno
Although normalcy has in the meantime returned to the places subject of this
petition, it might be relevant to rule on the issues raised in this petition since some
acts done pursuant to Proclamation 1946 and AOs 273 and 273-A could impact on
the administrative and criminal cases that the government subsequently filed
against those believed affected by such proclamation and orders.
The Issues Presented
The issues presented in this case are:
1. Whether or not Proclamation 1946 and AOs 273 and 273-A violate the
principle of local autonomy under Section 16, Article X of the Constitution, and
Section 1, Article V of the Expanded ARMM Organic Act;
2. Whether or not President Arroyo invalidly exercised emergency powers
when she called out the AFP and the PNP to prevent and suppress all incidents of
lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City; and
3. Whether or not the President had factual bases for her actions.
The Rulings of the Court
We dismiss the petition.
One. The claim of petitioners that the subject proclamation and
administrative orders violate the principle of local autonomy is anchored on the
allegation that, through them, the President authorized the DILG Secretary to
take over the operations of the ARMM and assume direct governmental powers
over the region.
But, in the first place, the DILG Secretary did not take over control of the
powers of the ARMM. After law enforcement agents took respondent Governor of
ARMM into custody for alleged complicity in the Maguindanao massacre, the
233
VOL. 651, JUNE 7, 2011 233
Ampatuan vs. Puno
ARMM Vice-Governor, petitioner Ansaruddin Adiong, assumed the vacated post
on December 10, 2009 pursuant to the rule on succession found in Article VII,
Section 12,14 of RA 9054. In turn, Acting Governor Adiong named the then Speaker
of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-
Governor.15 In short, the DILG Secretary did not take over the administration or
operations of the ARMM.
Two. Petitioners contend that the President unlawfully exercised emergency
powers when she ordered the deployment of AFP and PNP personnel in the places
mentioned in the proclamation.16 But such deployment is not by itself an exercise
of emergency powers as understood under Section 23 (2), Article VI of the
Constitution, which provides:
“SECTION 23. x x x (2) In times of war or other national emergency,
the Congress may, by law, authorize the President, for a limited period
and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.”
_______________
14 SEC. 12. Succession to Regional Governorship in Cases of Temporary
Incapacity.—In case of temporary incapacity of the regional Governor to perform
his duties on account of physical or legal causes, or when he is on official leave of
absence or on travel outside the territorial jurisdiction of the Republic of the
Philippines, the Regional Vice-Governor, or if there be none or in case of his
permanent or temporary incapacity or refusal to assume office, the Speaker of the
Regional Assembly shall exercise the powers, duties and functions of the Regional
Governor as prescribed by law enacted by the Regional Assembly or in the absence
thereof, by the pertinent provisions of Republic Act 7160 or the Local Government
Code of 1991.
15 http://services.inquirer.net/print/print.php?article_id=20100707-279759.
16 Rollo, p. 22.
234
234 SUPREME COURT REPORTS ANNOTATED
Ampatuan vs. Puno
 The President did not proclaim a national emergency, only a state of emergency
in the three places mentioned. And she did not act pursuant to any law enacted by
Congress that authorized her to exercise extraordinary powers. The calling out of
the armed forces to prevent or suppress lawless violence in such places is a power
that the Constitution directly vests in the President. She did not need a
congressional authority to exercise the same.
Three. The President’s call on the armed forces to prevent or suppress
lawless violence springs from the power vested in her under Section 18, Article VII
of the Constitution, which provides.17
“SECTION 18. The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary, he
may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. x x x”
While it is true that the Court may inquire into the factual bases for the
President’s exercise of the above power,18 it would generally defer to her judgment
on the matter. As the Court acknowledged in Integrated Bar of the Philippines v.
Hon. Zamora,19it is clearly to the President that the Constitution entrusts the
determination of the need for calling out the armed forces to prevent and suppress
lawless violence. Unless it is shown that such determination was attended by grave
abuse of discretion, the Court will accord respect to the President’s judgment.
Thus, the Court said:
_______________
17 See SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 509-510; 421
SCRA 656, 668 (2004).
18 Lacson v. Sec. Perez, 410 Phil. 78, 93; 357 SCRA 756, 772 (2001).
19 392 Phil. 618, 635; 338 SCRA 81, 102-103 (2000).
235
VOL. 651, JUNE 7, 2011 235
Ampatuan vs. Puno
“If the petitioner fails, by way of proof, to support the assertion that
the President acted without factual basis, then this Court cannot
undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily quantifiable
and cannot be objectively established since matters considered for
satisfying the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of textual standards
that the court may use to judge necessity, information necessary to arrive
at such judgment might also prove unmanageable for the courts. Certain
pertinent information might be difficult to verify, or wholly unavailable
to the courts. In many instances, the evidence upon which the President
might decide that there is a need to call out the armed forces may be of a
nature not constituting technical proof.
On the other hand, the President, as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state. In
the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to call
out the military to prevent or suppress lawless violence must be done
swiftly and decisively if it were to have any effect at all. x x x.”20
Here, petitioners failed to show that the declaration of a state of emergency in
the Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the
President’s exercise of the “calling out” power had no factual basis. They simply
alleged that, since not all areas under the ARMM were placed under a state of
emergency, it follows that the take over of the entire ARMM by the DILG Secretary
had no basis too.21
_______________
20 Id., at pp. 643-644; pp. 110-111.
21 Rollo, pp. 20-21.
236
236 SUPREME COURT REPORTS ANNOTATED
Ampatuan vs. Puno
But, apart from the fact that there was no such take over to begin with, the
OSG also clearly explained the factual bases for the President’s decision to call out
the armed forces, as follows:
“The Ampatuan and Mangudadatu clans are prominent families
engaged in the political control of Maguindanao. It is also a known fact
that both families have an arsenal of armed followers who hold elective
positions in various parts of the ARMM and the rest of Mindanao.
Considering the fact that the principal victims of the brutal bloodshed
are members of the Mangudadatu family and the main perpetrators of the
brutal killings are members and followers of the Ampatuan family, both
the military and police had to prepare for and prevent reported
retaliatory actions from the Mangudadatu clan and additional offensive
measures from the Ampatuan clan.
xxxx
The Ampatuan forces are estimated to be approximately two thousand
four hundred (2,400) persons, equipped with about two thousand (2,000)
firearms, about four hundred (400) of which have been accounted for.
xxx
As for the Mangudadatus, they have an estimated one thousand eight
hundred (1,800) personnel, with about two hundred (200) firearms. x x x
Apart from their own personal forces, both clans have Special Civilian
Auxiliary Army (SCAA) personnel who support them: about five hundred
(500) for the Ampatuans and three hundred (300) for the Mangudadatus.
What could be worse than the armed clash of two warring clans and
their armed supporters, especially in light of intelligence reports on the
potential involvement of rebel armed groups (RAGs).
One RAG was reported to have planned an attack on the forces of Datu
Andal Ampatuan, Sr. to show support and sympathy for the victims. The
said attack shall worsen the
237
 VOL. 651, JUNE 7, 2011 237
Ampatuan vs. Puno
age-old territorial dispute between the said RAG and the Ampatuan
family.
xxxx
On the other hand, RAG faction which is based in Sultan Kudarat was
reported to have received three million pesos (P3,000,000.00) from Datu
Andal Ampatuan, Sr. for the procurement of ammunition. The said
faction is a force to reckon with because the group is well capable of
launching a series of violent activities to divert the attention of the people
and the authorities away from the multiple murder case. x x x
In addition, two other factions of a RAG are likely to support the
Mangudadatu family. The Cotabato-based faction has the strength of
about five hundred (500) persons and three hundred seventy-two (372)
firearms while the Sultan Kudarat-based faction has the strength of
about four hundred (400) persons and three hundred (300) firearms and
was reported to be moving towards Maguindanao to support the
Mangudadatu clan in its armed fight against the Ampatuans.”22
In other words, the imminence of violence and anarchy at the time the
President issued Proclamation 1946 was too grave to ignore and she had to act to
prevent further bloodshed and hostilities in the places mentioned. Progress reports
also indicated that there was movement in these places of both high-powered
firearms and armed men sympathetic to the two clans. 23 Thus, to pacify the
people’s fears and stabilize the situation, the President had to take preventive
action. She called out the armed forces to control the proliferation of loose firearms
and dismantle the armed groups that continuously threatened the peace and
security in the affected places.
Notably, the present administration of President Benigno Aquino III has not
withdrawn the declaration of a state of emergency under Proclamation 1946. It
has been reported24 that the declaration would not be lifted soon because there is
still a need to disband private armies and confiscate loose firearms. Apparently,
the presence of troops in those places is still necessary to ease fear and tension
among the citizenry and prevent and suppress any violence that may still erupt,
despite the passage of more than a year from the time of the Maguindanao
massacre.
Since petitioners are not able to demonstrate that the proclamation of state of
emergency in the subject places and the calling out of the armed forces to prevent
or suppress lawless violence there have clearly no factual bases, the Court must
respect the President’s actions.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Corona (C.J.), Carpio, Carpio-Morales, Velasco, Jr., Nachura, Leonardo-De
Castro, Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez,
Mendoza and Sereno, JJ., concur.
Petition dismissed.
Note.—View that the Constitution does not expressly grant executive privilege
power to the President but courts have long recognized implied Presidential
powers if “necessary and proper” in carrying out powers and functions ex-
pressly granted to the Executive under the Constitution. (Neri vs. Senate
Committee on Accountability of Public Officers and Investigations, 549 SCRA 77
[2008])
——o0o——
G.R. No. 190293. March 20, 2012.*
PHILIP SIGFRID A. FORTUN and ALBERT LEE G. ANGELES,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, as Commander-in-Chief and
President of the Republic of the Philippines, EDUARDO ERMITA, Executive
Secretary, ARMED FORCES OF THE PHILIPPINES (AFP), or any of their units,
PHILIPPINE NATIONAL POLICE (PNP), or any of their units, JOHN DOES and
JANE DOES acting under their direction and control, respondents.
G.R. No. 190294. March 20, 2012.*
DIDAGEN P. DILANGALEN, petitioner, vs. EDUARDO R. ERMITA in his
capacity as Executive Secretary, NORBERTO GONZALES in his capacity as
Secretary of National Defense, RONALDO PUNO in his capacity as Secretary of
Interior and Local Government, respondents.
G.R. No. 190301. March 20, 2012.*
NATIONAL UNION OF PEOPLES’ LAWYERS (NUPL) SECRETARY GENERAL
NERI JAVIER COLMENARES, BAYAN MUNA REPRESENTATIVE SATUR C.
OCAMPO, GABRIELA WOMEN’S PARTY REPRESENTATIVE LIZA L. MAZA,
ATTY. JULIUS GARCIA MATIBAG, ATTY. EPHRAIM B. CORTEZ, ATTY.
JOBERT ILARDE PAHILGA, ATTY. VOLTAIRE B. AFRICA, BAGONG
ALYANSANG MAKABAYAN (BAYAN) SECRETARY GENERAL RENATO M.
REYES, JR. and ANTHONY IAN CRUZ, petitioners, vs. PRESIDENT GLORIA
MACAPAGAL-ARROYO, EXECUTIVE SECRETARY EDUARDO R. ERMITA,
ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL
VICTOR S. IBRADO, PHILIPPINE NATIONAL POLICE DIRECTOR GENERAL
JESUS A. VERZOSA, DE-
_______________
* EN BANC.
505
VOL. 668, MARCH 20, 2012 505
Fortun vs. Macapagal-Arroyo
PARTMENT OF JUSTICE SECRETARY AGNES VST DEVANADERA, ARMED
FORCES OF THE PHILIPPINES EASTERN MINDANAO COMMAND CHIEF
LIEUTENANT GENERAL RAYMUNDO B. FERRER, respondents.
G.R. No. 190302. March 20, 2012.*
JOSEPH NELSON Q. LOYOLA, petitioner, vs. HER EXCELLENCY PRESIDENT
GLORIA MACAPAGAL-ARROYO, ARMED FORCES CHIEF OF STAFF
GENERAL VICTOR IBRADO, PHILIPPINE NATIONAL POLICE (PNP),
DIRECTOR GENERAL JESUS VERZOSA, EXECUTIVE SECRETARY
EDUARDO ERMITA, respondents.
G.R. No. 190307. March 20, 2012.*
JOVITO R. SALONGA, RAUL C. PANGALANGAN, H. HARRY L. ROQUE, JR.,
JOEL R. BUTUYAN, EMILIO CAPULONG, FLORIN T. HILBAY, ROMEL R.
BAGARES, DEXTER DONNE B. DIZON, ALLAN JONES F. LARDIZABAL and
GILBERT T. ANDRES, suing as taxpayers and as CONCERNED Filipino citizens,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, in his (sic) capacity as
President of the Republic of the Philippines, HON. EDUARDO ERMITA, JR., in
his capacity as Executive Secretary, and HON. ROLANDO ANDAYA in his
capacity as Secretary of the Department of Budget and Management, GENERAL
VICTOR IBRADO, in his capacity as Armed Forces of the Philippines Chief of
Staff, DIRECTOR JESUS VERZOSA, in his capacity as Chief of the Philippine
National Police, respondents.
G.R. No. 190356. March 20, 2012.*
BAILENG S. MANTAWIL, DENGCO SABAN, Engr. OCTOBER CHIO,
AKBAYAN PARTY LIST REPRESENTATIVES WALDEN F. BELLO and ANA
THERESIA HONTIVEROS-BARAQUEL, LORETTA ANN P. ROSALES,
MARVIC M.V.F. LEONEN, THEODORE O. TE and IBARRA M. GUTIERREZ
506
506 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
III, petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF
NATIONAL DEFENSE, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, and THE CHIEF OF STAFF OF THE ARMED FORCES OF
THE PHILIPPINES, THE DIRECTOR GENERAL OF THE PHILIPPINE
NATIONAL POLICE, respondents.
G.R. No. 190380. March 20, 2012.*
CHRISTIAN MONSOD and CARLOS P. MEDINA, JR.,
petitioners, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary,
respondent.
Constitutional Law; Executive Department; Congress; Martial Law; Writ of
Habeas Corpus; It is evident that under the 1986 Constitution the President and
the Congress act in tandem in exercising the power to proclaim martial law or
suspend the privilege of the writ of habeas corpus. They exercise the power, not only
sequentially, but in a sense jointly.—The pertinent provisions of Section 18, Article
VII of the 1987 Constitution state: Sec. 18. The President shall be the
Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or any part thereof
under martial law. Within forty-eight hours from the proclamation of martial law
or the suspension of the privilege of writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not
be set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall persist and public
safety requires it. The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance with its rules
without
507
VOL. 668, MARCH 20, 2012 507
Fortun vs. Macapagal-Arroyo
any need of a call. x x x x Although the above vests in the President the power
to proclaim martial law or suspend the privilege of the writ of habeas corpus, he
shares such power with the Congress. Thus: 1. The President’s proclamation or
suspension is temporary, good for only 60 days; 2. He must, within 48 hours of the
proclamation or suspension, report his action in person or in writing to Congress;
3. Both houses of Congress, if not in session must jointly convene within 24 hours
of the proclamation or suspension for the purpose of reviewing its validity; and 4.
The Congress, voting jointly, may revoke or affirm the President’s proclamation or
suspension, allow their limited effectivity to lapse, or extend the same if Congress
deems warranted. It is evident that under the 1987 Constitution the President and
the Congress act in tandem in exercising the power to proclaim martial law or
suspend the privilege of the writ of habeas corpus. They exercise the power, not
only sequentially, but in a sense jointly since, after the President has initiated the
proclamation or the suspension, only the Congress can maintain the same based
on its own evaluation of the situation on the ground, a power that the President
does not have.
Same; Courts; Judicial Review; The Court’s duty is to steer clear of declaring
unconstitutional the acts of the Executive or the Legislative department, given the
assumption that it carefully studied those acts and found them consistent with the
fundamental law before taking them.—The Court does not resolve purely academic
questions to satisfy scholarly interest, however intellectually challenging these
are. This is especially true, said the Court in Philippine Association of Colleges and
Universities v. Secretary of Education, where the issues “reach constitutional
dimensions, for then there comes into play regard for the court’s duty to avoid
decision of constitutional issues unless avoidance becomes evasion.” The Court’s
duty is to steer clear of declaring unconstitutional the acts of the Executive or the
Legislative department, given the assumption that it carefully studied those acts
and found them consistent with the fundamental law before taking them. “To
doubt is to sustain.”
Same; Same; Executive Department; Congress; Martial Law; Writ of Habeas
Corpus; If the Congress procrastinates or altogether fails to fulfill its duty respecting
the proclamation or suspension within the short time expected of it, then the Court
can step in, hear the petitions challenging the President’s action, and ascertain if it
has
508
508 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
a factual basis.—If the Congress procrastinates or altogether fails to fulfill
its duty respecting the proclamation or suspension within the short time expected
of it, then the Court can step in, hear the petitions challenging the President’s
action, and ascertain if it has a factual basis. If the Court finds none, then it can
annul the proclamation or the suspension. But what if the 30 days given it by the
Constitution proves inadequate? Justice Carpio himself offers the answer in his
dissent: that 30-day period does not operate to divest this Court of its jurisdiction
over the case. The settled rule is that jurisdiction once acquired is not lost until
the case has been terminated.
CARPIO, J., Dissenting Opinion:
Remedial Law; Civil Procedure; Locus Standi; Words and Phrases; View that
“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.—“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. In case of a suit questioning the
sufficiency of the factual basis of the proclamation of martial law or suspension of
the writ, such as here, Section 18, Article VII of the Constitution expressly
provides: The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from its
filing. (Emphasis supplied) It is clear that the Constitution explicitly clothes “any
citizen” with the legal standing to challenge the constitutionality of the
declaration of martial law or suspension of the writ. The Constitution does not
make any distinction as to who can bring such an action. As discussed in the
deliberations of the Constitutional Commission, the “citizen” who can challenge
the declaration of martial law or suspension of the writ need not even be a
taxpayer. This was deliberately designed to arrest, without further delay, the
grave effects of an illegal declaration of martial law or suspension of the writ, and
to provide immediate relief to those aggrieved by the same. Accordingly,
petitioners, being Filipino citizens, possess legal standing to
509
VOL. 668, MARCH 20, 2012 509
Fortun vs. Macapagal-Arroyo
file the present petitions assailing the sufficiency of the factual basis of
Proclamation No. 1959.
Constitutional Law; Judicial Review; Courts; Moot and Academic; View that
courts may exercise their review power only when there is an actual case or
controversy, which involves a conflict of legal claims susceptible of judicial
resolution; Corollarily, courts generally decline jurisdiction over a moot and
academic case or outrightly dismiss it on the ground of mootness.—As a rule, courts
may exercise their review power only when there is an actual case or controversy,
which involves a conflict of legal claims susceptible of judicial resolution. Such a
case must be “definite and concrete, touching the legal relations of parties having
conflicting legal interests;” a real, as opposed to an imagined, controversy calling
for a specific relief. Corollarily, courts generally decline jurisdiction over a moot
and academic case or outrightly dismiss it on the ground of mootness. A moot and
academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that assuming jurisdiction over the same, and eventually
deciding it, would be of no practical use or value. In David v. Arroyo, 489 SCRA
160 (2006), this Court held that the “moot and academic” principle is not a magical
formula that automatically dissuades courts in resolving a case. Courts are not
prevented from deciding cases, otherwise moot and academic, if (1) there is a grave
violation of the Constitution; (2) the situation is of exceptional character and of
paramount public interest; (3) the constitutional issue raised requires formulation
of controlling principles to guide the bench, the bar, and the public; and (4) the
case is capable of repetition yet evading review.
Same; Criminal Law; Rebellion; View that the term “rebellion” in Section 18,
Article VII of the 1987 Constitution must be understood as having the same
meaning as the crime of “rebellion” that is defined in Article 134 of the Revised
Penal Code, as amended.—The term “rebellion” in Section 18, Article VII of the
1987 Constitution must be understood as having the same meaning as the crime
of “rebellion” that is defined in Article 134 of the Revised Penal Code, as
amended. First, this is the clear import of the last two paragraphs of Section 18,
Article VII of the Constitution, which explicitly state: The suspension of the
privilege of the writ of habeas corpus shall apply only to persons judicially
charged for rebellion or offenses inherent in, or directly connected with,
invasion. During the
510
510 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
suspension of the privilege of the writ of habeas corpus, any person thus
arrested or detained shall be judicially charged within three days, otherwise
he shall be released. (Emphasis supplied) For a person to be judicially charged for
rebellion, there must necessarily be a statute defining rebellion. There is no statute
defining rebellion other than the Revised Penal Code. Hence, “one can be ‘judicially
charged’ with rebellion only if one is suspected of having committed acts defined
as rebellion in Article 134 of the Revised Penal Code.” Second, the Revised Penal
Code definition of rebellion is the only legal definition of rebellion known and
understood by the Filipino people when they ratified the 1987 Constitution.
x x x Third, one of the Whereas clauses of Proclamation No. 1959 expressly cites
the Revised Penal Code definition of rebellion, belying the government’s claim that
the Revised Penal Code definition of rebellion merely guided the President in
issuing Proclamation No. 1959.
Same; Same; Same; Commander-in-Chief Powers; View that in exercising the
Commander-in-Chief powers under the Constitution, every President must insure
the existence of the elements of the crime of rebellion.—In exercising the
Commander-in-Chief powers under the Constitution, every President must insure
the existence of the elements of the crime of rebellion, which are: (1) there is a (a)
public uprising and (b) taking arms against the Government; and (2) the purpose
of the uprising or movement is either (a) to remove from the allegiance to the
Government or its laws: (1) the territory of the Philippines or any part thereof; or
(2) any body of land, naval, or other armed forces; or (b) to deprive the Chief
Executive or Congress, wholly or partially, of any of their powers and prerogatives.
Same; Same; View that probable cause is the same amount of proof required
for the filing of a criminal information by the prosecutor and for the issuance of an
arrest warrant by a judge.—I am of the view that probable cause of the existence
of either invasion or rebellion suffices and satisfies the standard of proof for a valid
declaration of martial law and suspension of the writ. Probable cause is the same
amount of proof required for the filing of a criminal information by the prosecutor
and for the issuance of an arrest warrant by a judge. Probable cause has been
defined as a “set of facts and circumstances as would lead a reasonably discreet
and prudent man to believe that the offense charged in the Information or any
offense
511
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Fortun vs. Macapagal-Arroyo
included therein has been committed by the person sought to be arrested.”
Same; Martial Law; Writ of Habeas Corpus; View that the constitutional
guarantees under the Bill of Rights remain fully operative and continue to accord
the people its mantle of protection during a state of martial law.—The Constitution
now expressly declares, “A state of martial law does not suspend the operation of
the Constitution.” Neither does a state of martial law supplant the functioning of
the civil courts or legislative assemblies. Nor does it authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are
able to function, or automatically suspend the writ. There is therefore no dispute
that the constitutional guarantees under the Bill of Rights remain fully operative
and continue to accord the people its mantle of protection during a state of martial
law. In case the writ is also suspended, the suspension applies only to those
judicially charged for rebellion or offenses directly connected with invasion.
Considering the non-suspension of the operation of the Constitution during a state
of martial law, a declaration of martial law does not authorize warrantless arrests,
searches and seizures, in derogation of Section 2, Article III of the Constitution.
Same; Same; Same; View that even if Congress has not acted upon the
President’s declaration or suspension, the Court may review the declaration or
suspension in an appropriate proceeding filed by any citizen.—It is clear, therefore,
that the President’s power to declare martial law or suspend the writ is
independent, separate, and distinct from any constitutionally mandated act to be
performed by either the Legislature or the Judiciary. It is neither joint nor
sequential with Congress’ power to revoke the declaration or suspension or to
extend it upon the initiative of the President. Accordingly, even if Congress has
not acted upon the President’s declaration or suspension, the Court may review
the declaration or suspension in an appropriate proceeding filed by any citizen.
Otherwise stated, Congress’ inaction on the declaration or suspension is not
determinative of the Court’s exercise of its review power under Section 18, Article
VII of the Constitution.
Same; Same; Same; Executive Department; View that the President has the
sole and exclusive power to declare martial law or suspend the writ subject to review
separately by Congress and the Supreme Court.—The President has the sole and
exclusive power to
512
512 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
declare martial law or suspend the writ. This power of the President is
subject to review separately by Congress and the Supreme Court. Justice Mendoza
stresses, “Thus, Congress and this Court have separate spheres of competence.
They do not act ‘jointly and sequentially’ but independently of each other.” Father
Bernas points out, “Since the powers of Congress and the Court are independent
of each other, there is nothing to prevent Congress and the Court from
simultaneously exercising their separate powers.”
Same; Same; Same; Same; View that whatever the Court’s decision will be on
the sufficiency of the factual basis of the President’s declaration or suspension does
not preclude those aggrieved by such illegal acts from pursuing any course of legal
action available to them.—Indisputably, unlawful acts may be committed during
martial law or suspension of the writ, not only by the rebels, but also by
government forces who are duty bound to enforce the declaration or suspension
and immediately put an end to the root cause of the emergency. Various acts
carried out by government forces during martial law or suspension of the writ in
the guise of protecting public safety may in reality amount to serious abuses of
power and authority. Whatever the Court’s decision will be on the sufficiency of
the factual basis of the President’s declaration or suspension does not preclude
those aggrieved by such illegal acts from pursuing any course of legal action
available to them. Therefore, the determination by this Court of the sufficiency of
the factual basis of the declaration or suspension is not essential to the resolution
of issues concerning the validity of related acts that government forces may have
committed during the emergency.
Same; Same; Same; View that the Constitution no longer allows imminent
danger of rebellion or invasion as a ground for the declaration or suspension, which
the 1935 and 1973 Constitutions expressly permitted.—Consistent with the
framers’ intent to reformulate the Commander-in-Chief powers of the President,
the 1987 Constitution requires the concurrence of two conditions in declaring
martial law or suspending the writ, namely, (1) an actual invasion or rebellion,
and (2) public safety requires the exercise of such power. The Constitution no
longer allows imminent danger of rebellion or invasion as a ground for the
declaration or suspension, which the 1935 and 1973 Constitutions expressly
permitted.513
VOL. 668, MARCH 20, 2012 513
Fortun vs. Macapagal-Arroyo
Same; Same; Same; View that only in case of actual invasion or rebellion,
when public safety requires it, may the President declare martial law or suspend
the writ.—Only in case of actual invasion or rebellion, when public safety requires
it, may the President declare martial law or suspend the writ. In declaring martial
law and suspending the writ in Maguindanao in the absence of an actual rebellion,
President Arroyo indisputably violated the explicit provisions of Section 18, Article
VII of the Constitution.
Same; Same; Same; Proclamation No. 1959; View that Proclamation No.
1959 was anchored on a non-existent rebellion; It cannot be justified on the basis of
a threatened, imminent, or looming rebellion, which ground was intentionally
deleted by the framers of the 1987 Constitution.—In sum, Proclamation No. 1959
was anchored on a non-existent rebellion. Based on the events before, during and
after the Maguindanao massacre, there was obviously no rebellion justifying the
declaration of martial law and suspension of the writ. The discovery of the
Ampatuans’ private army and massive weaponry does not establish an armed
public uprising aimed at overthrowing the government. Neither do the closure of
government offices and the reluctance of the local government officials and
employees to report for work indicate a rebellion. The Constitution is clear. Only
in case of actual invasion or rebellion, when public safety requires it, can a state
of martial law be declared or the privilege of the writ of habeas corpus be
suspended. Proclamation No. 1959 cannot be justified on the basis of a threatened,
imminent, or looming rebellion, which ground was intentionally deleted by the
framers of the 1987 Constitution. Considering the non-existence of an actual
rebellion in Maguindanao, Proclamation No. 1959 is unconstitutional for lack of
factual basis as required under Section 18, Article VII of the Constitution for the
declaration of martial law and suspension of the privilege of the writ of habeas
corpus.
VELASCO, JR., J., Dissenting Opinion:
Constitutional Law; Martial Law; Writ of Habeas Corpus; View that despite
the lifting of the martial law and restoration of the privilege of the writ, the Court
must take the bull by the horn to guide, explain and elucidate to the executive
branch, the legislative branch, the bar, and more importantly the public on the
parameters of a declaration of martial law.—It is my view that, despite the lifting
of the martial law and restoration of the privilege of the writ, the Court
514
514 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
must take the bull by the horn to guide, explain and elucidate to the
executive branch, the legislative branch, the bar, and more importantly the public
on the parameters of a declaration of martial law. Indeed, it is a well-settled rule
that this Court may only adjudicate actual and current controversies. This is
because the Court is “not empowered to decide moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the result
as to the thing in issue in the case before it.” Nonetheless, this “moot and academic”
rule admits of exceptions.
Same; Same; Same; View that there is neither any allegation nor proof that
President Arroyo acted in bad faith when she declared martial law and suspended
the writ of habeas corpus in Maguindanao.—In the case at bar, there is neither
any allegation nor proof that President Arroyo acted in bad faith when she declared
martial law and suspended the writ of habeas corpus in Maguindanao. There was
also no showing that there was a deliberate or intentional attempt on the part of
President Arroyo to break or dishonor the Constitution by issuing the assailed
proclamation. On the contrary, what is extant from the records is that President
Arroyo made such declaration and suspension on the basis of intelligence reports
that lawless elements have taken up arms and committed public uprising against
the government and the people of Maguindanao for the purpose of depriving the
Chief Executive of her powers and prerogatives to enforce the laws of the land and
to maintain public order and safety, to the great damage, prejudice and detriment
of the people in Maguindanao and the nation as a whole.
Same; Same; Same; Executive Department; View that the President has the
discretion to make a declaration of martial law or suspension of the writ of habeas
corpus based on information or facts available or gathered by the President’s
office.—Significantly, the President has the discretion to make a declaration of
martial law or suspension of the writ of habeas corpus based on information or
facts available or gathered by the President’s office. It would be preposterous to
impose upon the President to be physically present at the place where a threat to
public safety is alleged to exist as a condition to make such declaration or
suspension.
Same; Same; Same; View that it is one thing to declare a decree issued by the
President as unconstitutional, and it is another to pronounce that she indisputably
violated the Constitution.—To a certain
515
VOL. 668, MARCH 20, 2012 515
Fortun vs. Macapagal-Arroyo
extent, I conform to Justice Carpio’s dissent as to the unconstitutionality of
Proclamation No. 1959. To my mind, however, it is one thing to declare a decree
issued by the President as unconstitutional, and it is another to pronounce that
she indisputably violated the Constitution. Notably, the power to issue the
subject decree is expressly granted the President. There is also compliance with
the report required after the issuance of said decree. However, the issuance of the
subject decree may not be sustained after due consideration of the circumstances
which may or may not support such decree.
PEREZ, J., Separate Opinion:
Constitutional Law; Martial Law; Writ of Habeas Corpus; View that the
dismissal of the petition was more than by reason of their mootness but because the
Court action was already overdue.—I concur in the resulting dismissal of these
petitions, more than by reason of their mootness but because I find our action
overdue, it being my well-thought-out position that the constitutional authority of
the Supreme Court to review the sufficiency of the factual basis of Proclamation
No. 1959 has expired and is no more. Proclamation No. 1959 declaring martial law
and suspending the privilege of the writ of habeas corpus in the Province of
Maguindanao was issued by then President Gloria Macapagal Arroyo on 4
December 2009. In compliance with the mandate of Section 18, Article VII of the
present Constitution, she submitted her Report to Congress on 6 December 2009
or “within forty-eight hours from the proclamation.”
Same; Same; Same; Commander-in-Chief Power; Judicial Review; View that
each and every exercise by the President of his commander-in-chiefship must, if
review by the Supreme Court be asked and called for, be examined under the current
events and the present affairs that determine the presence of the necessity of such
exercise.—Respectfully, I submit that each and every exercise by the President of
his commander-in-chiefship must, if review by this Court be asked and called for,
be examined under the current events and the present affairs that determine the
presence of the necessity of such exercise. All the decisions of the actors covered by
Section 18 of Article VII must be done within the tight and narrow time frames in
the provision. These framed periods, I submit, emphasize the imperative for
currency of the decision that each must make, as indeed,
516
516 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
the presidential proclamation, aside from having been subjected to
constitutional checks, has been given limited life.
Same; Same; Same; Judicial Review; View that the Supreme Court cannot
now define for the future the “sufficiency of the factual basis” of the possibly coming
proclamations of martial law.—I respectfully submit that the Court cannot now
define for the future the “sufficiency of the factual basis” of the possibly coming
proclamations of martial law. I cannot see how such a pre-determination can
prevent an unconstitutional imposition of martial law better than the requirement,
already constitutionalized, that the President must within forty-eight hours,
submit a report in person or in writing to Congress which can, by a majority of all
its members revoke, the imposition.
PETITIONS to challenge the constitutionality of Proclamation No. 1959.
The facts are stated in the opinion of the Court.
Philip Sigfrid A. Fortun and John Michael S. Galauran for petitioners in G.R.
No. 190293.
Teddy Esteban F. Rigoroso and Roderick R. Rabino for petitioner in G.R. No.
190294.
Julius Garcia Matibag, Jobert Ilarde Pahilga, Ephraim B.
Cortez and Voltaire B. Africa for petitioners in G.R. No. 190301.
Nelson H. Loyola for petitioner in G.R. No. 190302.
H. Harry L. Roque, Jr. and Joel Ruiz Butuyan for petitioners in G.R. No.
190307.
Carlos P. Medina, Jr. for petitioners in G.R. No. 190380.
Marvic M.V.F. Leonen for petitioners in G.R. No. 190356.
R.A.V. Saguisag lead counsel for N. Loyola.
517
VOL. 668, MARCH 20, 2012 517
Fortun vs. Macapagal-Arroyo
ABAD, J.:
These cases concern the constitutionality of a presidential proclamation of
martial law and suspension of the privilege of habeas corpus in 2009 in a province
in Mindanao which were withdrawn after just eight days.
The Facts and the Case
The essential background facts are not in dispute. On November 23, 2009
heavily armed men, believed led by the ruling Ampatuan family, gunned down and
buried under shoveled dirt 57 innocent civilians on a highway in Maguindanao. In
response to this carnage, on November 24 President Arroyo issued Presidential
Proclamation 1946, declaring a state of emergency in Maguindanao, Sultan
Kudarat, and Cotabato City to prevent and suppress similar lawless violence in
Central Mindanao.
Believing that she needed greater authority to put order in Maguindanao and
secure it from large groups of persons that have taken up arms against the
constituted authorities in the province, on December 4, 2009 President Arroyo
issued Presidential Proclamation 1959 declaring martial law and suspending the
privilege of the writ of habeas corpus in that province except for identified areas of
the Moro Islamic Liberation Front.
Two days later or on December 6, 2009 President Arroyo submitted her report
to Congress in accordance with Section 18, Article VII of the 1987 Constitution
which required her, within 48 hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, to submit to that body a
report in person or in writing of her action.
In her report, President Arroyo said that she acted based on her finding that
lawless men have taken up arms in Maguindanao and risen against the
government. The President described the scope of the uprising, the nature,
quantity,
517
VOL. 668, MARCH 20, 2012 517
Fortun vs. Macapagal-Arroyo
and quality of the rebels’ weaponry, the movement of their heavily armed units in
strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan
Municipal Hall, Datu Unsay Municipal Hall, and 14 other municipal halls, and the
use of armored vehicles, tanks, and patrol cars with unauthorized “PNP/Police”
markings.
On December 9, 2009 Congress, in joint session, convened pursuant to Section
18, Article VII of the 1987 Constitution to review the validity of the President’s
action. But, two days later or on December 12 before Congress could act, the
President issued Presidential Proclamation 1963, lifting martial law and restoring
the privilege of the writ of habeas corpus in Maguindanao.
Petitioners Philip Sigfrid A. Fortun and the other petitioners in G.R. 190293,
190294, 190301,190302, 190307, 190356, and 190380 brought the present actions
to challenge the constitutionality of President Arroyo’s Proclamation 1959
affecting Maguindanao. But, given the prompt lifting of that proclamation before
Congress could review it and before any serious question affecting the rights and
liberties of Maguindanao’s inhabitants could arise, the Court deems any review of
its constitutionality the equivalent of beating a dead horse.
Prudence and respect for the co-equal departments of the government dictate
that the Court should be cautious in entertaining actions that assail the
constitutionality of the acts of the Executive or the Legislative department. The
issue of constitutionality, said the Court in Biraogo v. Philippine Truth
Commission of 2010,1 must be the very issue of the case, that the resolution of such
issue is unavoidable.
The issue of the constitutionality of Proclamation 1959 is not unavoidable for
two reasons:
_______________
1 G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 147-148.
519
VOL. 668, MARCH 20, 2012 519
Fortun vs. Macapagal-Arroyo
One. President Arroyo withdrew her proclamation of martial law and
suspension of the privilege of the writ of habeas corpusbefore the joint houses of
Congress could fulfill their automatic duty to review and validate or invalidate the
same. The pertinent provisions of Section 18, Article VII of the 1987 Constitution
state:
“Sec. 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of writ
of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without any need
of a call.
x x x x”
Although the above vests in the President the power to proclaim martial law
or suspend the privilege of the writ of habeas corpus, he shares such power with
the Congress. Thus:
1. The President’s proclamation or suspension is temporary, good for only 60
days;
2. He must, within 48 hours of the proclamation or suspension, report his
action in person or in writing to Congress;520
520 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
3. Both houses of Congress, if not in session must jointly convene within 24
hours of the proclamation or suspension for the purpose of reviewing its validity;
and
4. The Congress, voting jointly, may revoke or affirm the President’s
proclamation or suspension, allow their limited effectivity to lapse, or extend the
same if Congress deems warranted.
It is evident that under the 1987 Constitution the President and the Congress
act in tandem in exercising the power to proclaim martial law or suspend the
privilege of the writ of habeas corpus. They exercise the power, not only
sequentially, but in a sense jointly since, after the President has initiated the
proclamation or the suspension, only the Congress can maintain the same based
on its own evaluation of the situation on the ground, a power that the President
does not have.
Consequently, although the Constitution reserves to the Supreme Court the
power to review the sufficiency of the factual basis of the proclamation or
suspension in a proper suit, it is implicit that the Court must allow Congress to
exercise its own review powers, which is automatic rather than initiated. Only
when Congress defaults in its express duty to defend the Constitution through
such review should the Supreme Court step in as its final rampart. The
constitutional validity of the President’s proclamation of martial law or suspension
of the writ of habeas corpus is first a political question in the hands of Congress
before it becomes a justiciable one in the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959 before the joint houses of
Congress, which had in fact convened, could act on the same. Consequently, the
petitions in these cases have become moot and the Court has nothing to review.
The lifting of martial law and restoration of the privilege of the writ of habeas
corpus in Maguindanao was a supervening event that obliterated any justiciable
controversy.2
_______________
2 See Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308, 319.
521
VOL. 668, MARCH 20, 2012 521
Fortun vs. Macapagal-Arroyo
Two. Since President Arroyo withdrew her proclamation of martial law and
suspension of the privilege of the writ of habeas corpus in just eight days, they
have not been meaningfully implemented. The military did not take over the
operation and control of local government units in Maguindanao. The President
did not issue any law or decree affecting Maguindanao that should ordinarily be
enacted by Congress. No indiscriminate mass arrest had been reported. Those who
were arrested during the period were either released or promptly charged in court.
Indeed, no petition for habeas corpus had been filed with the Court respecting
arrests made in those eight days. The point is that the President intended by her
action to address an uprising in a relatively small and sparsely populated province.
In her judgment, the rebellion was localized and swiftly disintegrated in the face
of a determined and amply armed government presence.
In Lansang v. Garcia,3 the Court received evidence in executive session to
determine if President Marcos’ suspension of the privilege of the writ of habeas
corpus in 1971 had sufficient factual basis. In Aquino, Jr. v. Enrile,4 while the
Court took judicial notice of the factual bases for President Marcos’ proclamation
of martial law in 1972, it still held hearings on the petitions for habeas corpus to
determine the constitutionality of the arrest and detention of the petitioners. Here,
however, the Court has not bothered to examine the evidence upon which
President Arroyo acted in issuing Proclamation 1959, precisely because it felt no
need to, the proclamation having been withdrawn within a few days of its issuance.
Justice Antonio T. Carpio points out in his dissenting opinion the finding of the
Regional Trial Court (RTC) of Quezon City that no probable cause exist that the
accused before it committed rebellion in Maguindanao since the prosecution failed
to establish the elements of the crime. But the Court
_______________
3 149 Phil. 547; 42 SCRA 448 (1971).
4 158-A Phil. 1; 59 SCRA 183 (1974).
522
522 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
cannot use such finding as basis for striking down the President’s proclamation
and suspension. For, firstly, the Court did not delegate and could not delegate to
the RTC of Quezon City its power to determine the factual basis for the
presidential proclamation and suspension. Secondly, there is no showing that the
RTC of Quezon City passed upon the same evidence that the President, as
Commander-in-Chief of the Armed Forces, had in her possession when she issued
the proclamation and suspension.
The Court does not resolve purely academic questions to satisfy scholarly
interest, however intellectually challenging these are.5 This is especially true, said
the Court in Philippine Association of Colleges and Universities v. Secretary of
Education,6 where the issues “reach constitutional dimensions, for then there
comes into play regard for the court’s duty to avoid decision of constitutional issues
unless avoidance becomes evasion.” The Court’s duty is to steer clear of declaring 524 SUPREME COURT REPORTS ANNOTATED
unconstitutional the acts of the Executive or the Legislative department, given the
assumption that it carefully studied those acts and found them consistent with the Fortun vs. Macapagal-Arroyo
fundamental law before taking them. “To doubt is to sustain.”7 over the case. The settled rule is that jurisdiction once acquired is not lost until
Notably, under Section 18, Article VII of the 1987 Constitution, the Court has the case has been terminated.
only 30 days from the filing of an appropriate proceeding to review the sufficiency The problem in this case is that the President aborted the proclamation of
of the factual basis of the proclamation of martial law or the suspension of the martial law and the suspension of the privilege of the writ of habeas corpus in
privilege of the writ of habeas corpus. Thus— Maguindanao in just eight days. In a real sense, the proclamation and the
“The Supreme Court may review, in an appropriate proceeding filed by any suspension never took off. The Congress itself adjourned without touching the
citizen, the sufficiency of the factual basis of the procla- matter, it having become moot and academic.
_______________ Of course, the Court has in exceptional cases passed upon issues that
5 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426; 292 SCRA 402, ordinarily would have been regarded as moot. But the present cases do not present
413 (1998). sufficient basis for the exercise of the power of judicial review. The proclamation
6 97 Phil. 806, 811 (1955), citing Rice v. Sioux City, U.S. Sup. Ct. Adv. Rep., of martial law and the suspension of the privilege of the writ of habeas corpus in
May 23, 1955, Law Ed., Vol. 99, p. 511. this case, unlike similar Presidential acts in the late 60s and early 70s, appear
7 Board of Optometry v. Colet, 328 Phil. 1187, 1207; 260 SCRA 88, 105 (1996), more like saber-rattling than an actual deployment and arbitrary use of political
citing Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140. power.
523 WHEREFORE, the Court DISMISSES the consolidated petitions on the
ground that the same have become moot and academic.
VOL. 668, MARCH 20, 2012 523
SO ORDERED.
Fortun vs. Macapagal-Arroyo Leonardo-De Castro, Brion, Peralta, Bersamin, Villarama,
mation of martial law or the suspension of the privilege of the writ of habeas Jr. and Mendoza, JJ., concur.
corpus or the extension thereof, and must promulgate its decision thereon Corona (C.J.), I join the dissent of Mr. Justice Velasco.
within thirty days from its filing.” (Emphasis supplied) Carpio, J., See Dissenting Opinion.
More than two years have passed since petitioners filed the present actions to Velasco, Jr., J., Please see Dissenting Opinion.
annul Proclamation 1959. When the Court did not decide it then, it actually opted Del Castillo, J., On Leave.
for a default as was its duty, the question having become moot and academic. Perez, J., Please see separate opinion.
Justice Carpio of course points out that should the Court regard the powers of Sereno, J., I join the dissent of J. Carpio.
the President and Congress respecting the proclamation of martial law or the Reyes, J., I join the dissent of J. A.T. Carpio.
suspension of the privilege of the writ of habeas corpus as sequential or joint, it Perlas-Bernabe, J., I join the dissent of J. Carpio.
would be impossible for the Court to exercise its power of review within the 30 days 525
given it. VOL. 668, MARCH 20, 2012 525
But those 30 days, fixed by the Constitution, should be enough for the Court to
fulfill its duty without pre-empting congressional action. Section 18, Article VII, Fortun vs. Macapagal-Arroyo
requires the President to report his actions to Congress, in person or in writing,
within 48 hours of such proclamation or suspension. In turn, the Congress is DISSENTING OPINION
required to convene without need of a call within 24 hours following the President’s
proclamation or suspension. Clearly, the Constitution calls for quick action on the CARPIO, J.:
part of the Congress. Whatever form that action takes, therefore, should give the I dissent.
Court sufficient time to fulfill its own mandate to review the factual basis of the
proclamation or suspension within 30 days of its issuance. The Cases
If the Congress procrastinates or altogether fails to fulfill its duty respecting
the proclamation or suspension within the short time expected of it, then the Court These are consolidated petitions for the writs of certiorari and prohibition
can step in, hear the petitions challenging the President’s action, and ascertain if challenging the constitutionality of Presidential Proclamation No. 1959, which
it has a factual basis. If the Court finds none, then it can annul the proclamation declared a state of martial law and suspended the privilege of the writ of habeas
or the suspension. But what if the 30 days given it by the Constitution proves corpus in the Province of Maguindanao, except for identified areas of the Moro
inadequate? Justice Carpio himself offers the answer in his dissent: that 30-day Islamic Liberation Front.
period does not operate to divest this Court of its jurisdiction
524 The Antecedents
 In the morning of 23 November 2009, fifty-seven (57) innocent civilians met 12. Walida Ali Kalim – Relative
their tragic and untimely death in a gruesome massacre unequaled in recent 13. Atty. Concepcion Brizuela – Lawyer
history,1 considered to be 14. Atty. Cynthia Oquendo Ogano – Lawyer
_______________ 15. Cataleno Oquendo – Father of Atty. Cynthia Oquendo
1 Presidential Adviser for Mindanao Jesus Dureza’s statement reported in 16. Marife Montano – Saksi News, Gensan
Philippine Daily Inquirer on 23 November 2009 17. Alejandro Bong Reblando – Manila Bulletin, Gensan
(http://newsinfo.inquirer.net/breakingnews/nation/view/20091123-237934/Wife- 18. Mc Delbert “Mac Mac” Areola – UNTV Gensan
of-gubernatorial-bet-35-killed-in-Maguindanao [accessed on 4 November 2011], 19. Rey Marisco – Periodico Ini, Koronadal City
Wife of gubernatorial bet, 35 killed in Maguindanao Palace adviser calls for state 20. Bienvenido Jun Lagarta – Prontierra News, Koronadal City
of emergency) and in Philippine Star on 24 November 2009 21. Napoleon Salaysay – Mindanao Gazette
(http://www.philstar.com/ 22. Eugene Depillano – UNTV Gen San
article.aspx?articleid=526314 [accessed on 4 November 2011]; 23. Rosell Morales – News Focus
Maguindanaomassacre). 24. Arturo Betia – Periodico Ini, Gen San
The mass murder of the journalists was tagged “as the darkest point of 528
democracy and free press in this recent time.” (Statement of NUJP Cebu Chapter 528 SUPREME COURT REPORTS ANNOTATED
President Rico Lucena reported in philstar.com with title Maguindanao death toll
now 46: Emergency rule in two provinces Fortun vs. Macapagal-Arroyo
(http://www.philstar.com/article.aspx?articleid=526616 [accessed on 4 November In its Consolidated Comment dated 14 December 2009, the Office of the
2011]). Solicitor General (OSG), representing public respondents, narrated the harrowing
The massacre was considered “one of the deadliest single events for the press events which unfolded on that fateful day of 23 November 2009, to wit:
in memory" and the Philippines the world’s worst place to be a journalist, according xxxx
to international press freedom watchdog Committee to Protect Journalists (CPJ). 3. Vice Mayor Mangudadatu confirmed having received reports that his political
(http://www. rivals (Ampatuans) were planning to kill him upon
526 _______________
25. Noel Decena – Periodico Ini
526 SUPREME COURT REPORTS ANNOTATED
26. John Caniba – Periodico Ini
Fortun vs. Macapagal-Arroyo 27. Junpee Gatchalian – DXGO, Davao City
the Philippines’ worst case of election-related violence. Brutally killed were female 28. Victor Nunez – UNTV Gen San
family members of then Buluan Vice Mayor Esmael “Toto” Mangudadatu 29. Andres Teodoro –Central Mindanao Inquirer
(Mangudadatu), including his wife and sisters, and members of the press who were 30. Romeo Capelo – Midland Review, Tacurong City
part of a convoy on the way to Shariff Aguak in Maguindanao. Mangudadatu’s wife 31. Joy Duhay – Gold Star Daily
was bringing with her Mangudadatu’s certificate of candidacy for Governor of 32. Ronnie Perante – Gold Star Daily, Koronadal City
Maguindanao for filing with the Provincial Office of the Commission on Elections 33. Benjie Adolfo – Gold Star Daily, Koronadal City
in Shariff Aguak. Five of the victims were not part of the convoy but happened to 34. Ian Subang – Socsargen Today, Gen San
be traveling on the same highway.2 35. Joel Parcon – Prontiera News, Koronadal City
_______________ 36. Robello Bataluna – Gold Star Daily, Koronadal City
gmanews.tv/story/177821/the-ampatuan-massacre-a-map-and-timeline 37. Lindo Lipugan – Mindanao Daily Gazette, Davao City
[accessed on 4 November 2011]) 38. Ernesto Maravilla – Bombo Radyo, Koronadal City
2 Fifty-five of the casualties were identified as follows: 39. Henry Araneta – Radio DZRH, Gen San
1. Bai Genelyn T. Mangudadatu – Wife of Mangudadatu 40. Fernando Razon – Periodico Ini, Gen San
2. Bai Eden Mangudadatu – Sister/Vice Mayor, Mangudadatu, Maguindanao 41. Hannibal Cachuela – Punto News, Koronadal City
3. Pinky Balaiman – Cousin of Mangudadatu 42. Lea Dalmacio – Socsargen News, Gensan
4. Mamotavia Mangudadatu – Aunt 43. Marites Cablitas – News Focus, Gensan
5. Bai Farida Mangudadatu – Youngest sister 44. Gina Dela Cruz – Saksi News, Gensan
6. Rowena Ante Mangudadatu – Relative 45. Anthony Ridao – Government employee
7. Faridah Sabdula – Sister 46. Mariam Calimbol – Civilian
8. Soraida Vernan – Cousin 47. Norton “Sidic” Edza – Driver
9. Raida Sapalon Abdul – Cousin 48. Jephon C. Cadagdagon – Civilian
10. Rahima Puto Palawan – Relative 49. Abdillah Ayada – Driver
11. Lailan “Ella” Balayman – Relative 50. Joselito Evardo – Civilian
 51. Cecille Lechonsito – Civilian
52. Wilhelm Palabrica – Government Employee
53. Mercy Palabrica – Government Employee
54. Daryll Vincent Delos Reyes – Government Employee
55. Eduardo “Nonie” Lechonsito – Government Employee
528
528 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
his filing of a certificate of candidacy (COC) for the gubernatorial seat in
Maguindanao. Believing that the presence of women and media personalities
would deter any violent assault, he asked his wife and female relatives to file his
COC and invited several media reporters to cover the event.
4. At around 10 a.m., the convoy stopped at a designated PNP checkpoint along
the highway of Ampatuan, Maguindanao manned by the Maguindanao 1508th
Provincial Mobile Group, particularly, Eshmail Canapia and Takpan Dilon. While
at a stop, they were approached by about one hundred (100) armed men. The
armed men pointed their weapons at the members of the 1508th Provincial Mobile
Group manning the check point, and threatened them to refrain from interfering.
The members of the convoy were then ordered to alight from their vehicles and to
lie face down on the ground, as the armed men forcibly took their personal
belongings. Subsequently, all members of the convoy were ordered to board their
vehicles. They were eventually brought by the armed men to the hills in Barangay
Masalay, Ampatuan, about 2.5 kilometers from the checkpoint.
5. At about the same time, Vice Mayor Mangudadatu received a call from his wife
Genelyn who, in a trembling voice, told him that a group of more or less 100 armed
men stopped their convoy, and that Datu Unsay Mayor Andal Ampatuan, Jr. was
walking towards her, and was about to slap her face. After those last words were
uttered, the phone line went dead and her cellphone could not be contacted any
longer. Alarmed that his wife and relatives, as well as the media personalities were
in grave danger, Vice Mayor Mangudadatu immediately reported the incident to
the Armed Forces of the Philippines.
6. In the afternoon of the same day, soldiers—aboard two army trucks led by Lt.
Col. Rolando Nerona, Head of the Philippine Army’s 64th Infantry Battalion—
went to the town of Ampatuan to confirm the report. At around 3 p.m., they passed
by the checkpoint along the highway in Ampatuan manned by the 1508th
Provincial Mobile Group and asked whether they were aware of the reported
abduction. Members of the 1508th Provincial Mobile Group denied having
knowledge of what they have witnessed at around 10 in the morning purportedly
out of fear of retaliation from the powerful Ampatuan clan. Nevertheless, P/CI
Sukarno Adil Dicay, the head of the Mobile Group, instructed P/INSP Diongon to
accompany the military on foot
529
VOL. 668, MARCH 20, 2012 529
Fortun vs. Macapagal-Arroyo
patrol as they conduct their operation relative to the reported abduction.
7. Upon reaching Barangay Masalay, Ampatuan, the soldiers on foot patrol found
dead bodies, bloodied and scattered on the ground and inside the four (4) vehicles
used by the convoy. Three (3) newly covered graves and a back hoe belonging to
the Maguindanao Provincial Government parked nearby with its engine still
running were found at the site. When the graves were dug up by the soldiers,
twenty four (24) dead bodies were found in the first grave; six (6) dead bodies with
three (3) vehicles, particularly a Toyota Vios with the seal of the Tacurong City
Government, a Tamaraw FX and an L300 owned by the media outfit UNTV were
found in the second grave; and five (5) more dead bodies were recovered from the
third grave, yielding 35 buried dead bodies and, together with other cadavers,
resulted in a total of fifty seven (57) fatalities.
8. x x x
9. Examination of the bodies revealed that most, if not all, of the female victims’
pants were found unzipped, and their sexual organs mutilated and mangled. Five
(5) of them were tested positive for traces of semen, indicative of sexual abuse while
some of the victims were shot in the genital area. The genitalia of Genelyn
Mangudadatu was lacerated four (4) times, and blown off by a gun fire, and her
body horrifyingly mutilated. Two of the women killed were pregnant, while
another two were lawyers. Twenty-nine (29) of the casualties were media
personnel. Almost all gun shot injuries were on the heads of the victims, rendering
them unrecognizable albeit two (2) bodies remain unidentified. Those found in the
graves were coarsely lumped like trash, and some of the victims were found
hogtied. All the dead bodies bear marks of despicable torture, contempt and
outrageous torment.3
A day after the carnage, on 24 November 2009, former President Gloria
Macapagal-Arroyo (President Arroyo) issued Proclamation No. 1946, declaring a
state of emergency in the provinces of Maguindanao and Sultan Kudarat, and in
the City of Cotabato, “to prevent and suppress the occurrence of
_______________
3 Rollo (G.R. No. 190293), pp. 105-109.
530
530 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
similar other incidents of lawless violence in Central Mindanao.” The full text of
Proclamation No. 1946 reads:
DECLARING A STATE OF EMERGENCY IN CENTRAL MINDANAO
WHEREAS, on November 23, 2009, several persons, including women and
members of media were killed in a violent incident which took place in Central
Mindanao;
WHEREAS, there is an urgent need to prevent and suppress the occurrence of
similar other incidents of lawless violence in Central Mindanao;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by the
Constitution and by law, do hereby proclaim, as follows:
SECTION 1. The Provinces of Maguindanao and Sultan Kudarat and the
City of Cotabato are hereby placed under a state of emergency for the purpose of
preventing and suppressing lawless violence in the aforesaid jurisdiction.
SECTION 2. The Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP) are hereby ordered to undertake such measures as may be
allowed by the Constitution and by law to prevent and suppress all incidents of
lawless violence in the said jurisdiction.
 SECTION 3. The state of emergency covering the Provinces of Maguindanao
and Sultan Kudarat and the City of Cotabato shall remain in force and effect until
lifted or withdrawn by the President.4
On 4 December 2009, President Arroyo issued Proclamation No. 1959,
declaring martial law and suspending the privilege of the writ of habeas
corpus (writ) in the Province of Maguindanao, except for the identified areas of the
Moro Islamic Liberation Front (MILF). The full text of Proclama-
_______________
4 Id., at p. 185.
531
VOL. 668, MARCH 20, 2012 531
Fortun vs. Macapagal-Arroyo
tion No. 1959, signed by President Arroyo and attested by Executive Secretary
Eduardo Ermita, reads:
PROCLAMATION NO. 1959
PROCLAIMING A STATE OF MARTIAL LAW AND SUSPENDING THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE PROVINCE OF
MAGUINDANAO, EXCEPT FOR CERTAIN AREAS
WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring
a state of emergency in the provinces of Maguindanao, Sultan Kudarat and the
City of Cotabato for the purpose of preventing and suppressing lawless violence in
the aforesaid areas;
WHEREAS, Section 18, Art.VII of the Constitution provides that “x x x In case
of invasion or rebellion, when the public safety requires it, (the President) may, for
a period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. x x x”
WHEREAS, R.A. No. 69865 provides that the crime of rebellion or insurrection
is committed by rising publicly and taking arms against the Government for the
purpose of x x x depriving the Chief Executive or the Legislature, wholly or
partially, of any of their powers or prerogatives.”
WHEREAS, heavily armed groups in the province of Maguindanao have
established positions to resist government troops, thereby depriving the Executive
of its powers and prerogatives to enforce the laws of the land and to maintain
public order and safety;
WHEREAS, the condition of peace and order in the province of Maguindanao
has deteriorated to the extent that the local judicial
_______________
5 Should be Republic Act No. 6968, which is “An Act Punishing the Crime of
Coup D’état by Amending Articles 134, 135 and 136 of Chapter One, Title Three of
Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as the
Revised Penal Code, and for Other Purposes.” Republic Act No. 6986 is titled “An
Act Establishing a High School in Barangay Dulop, Municipality of Dumingag,
Province of Zamboanga Del Sur, to be Known as the Dulop High School, and
Appropriating Funds Therefor.”
532
532 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
system and other government mechanisms in the province are not functioning,
thus endangering public safety;
WHEREAS, the Implementing Operational Guidelines of the GRP-MILF
Agreement on the General Cessation of Hostilities dated 14 November 1997
provides that the following is considered a prohibited hostile act: “x x x
establishment of checkpoints except those necessary for the GRP’s enforcement
and maintenance of peace and order; and, for the defense and security of the MILF
in their identified areas, as jointly determined by the GRP and MILF. x x x”
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by the
Constitution and by law, do hereby proclaim, as follows:
SECTION 1. There is hereby declared a state of martial law in the province
of Maguindanao, except for the identified areas of the Moro Islamic Liberation
Front as referred to in the Implementing Operational Guidelines of the GRP-MILF
Agreement on the General Cessation of Hostilities.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be
suspended in the aforesaid area for the duration of the state of martial law. 6
On 6 December 2009, President Arroyo submitted her Report to Congress in
accordance with the provision in Section 18, Article VII of the 1987 Constitution,
which states that “within forty-eight hours from the proclamation of martial law
or the suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress.” In her Report, President
Arroyo presented the following justifications for imposing martial law and
suspending the writ in Maguindanao, to wit:
Pursuant to the provision of Section 18, Article VII of the 1987 Constitution, the
President of the Republic of the Philippines is submitting the hereunder Report
relative to Proclamation No. 1959 “Proclaiming a State of Martial Law and
Suspending the Privilege of the
_______________
6 Rollo (G.R. No. 190293), pp. 186-187.
533
VOL. 668, MARCH 20, 2012 533
Fortun vs. Macapagal-Arroyo
Writ of Habeas Corpus in the Province of Maguindanao, except for Certain Areas,”
which she issued on 04 December 2009, as required by public safety, after finding
that lawless elements have taken up arms and committed public uprising
against the duly constituted government and against the people of
Maguindanao, for the purpose of removing from the allegiance to the
Government or its laws, the Province of Maguindanao, and likewise
depriving the Chief Executive of her powers and prerogatives to enforce
the laws of the land and to maintain public order and safety, to the great
damage, prejudice and detriment of the people in Maguindanao and the
nation as a whole.
xxx
The capture of identified leader Mayor Andal Ampatuan, Jr. would have resulted
in the expeditious apprehension and prosecution of all others involved in the
gruesome massacre, but the situation proved the contrary. The Ampatuan group
backed by formidable group of armed followers, have since used their strength and
political position to deprive the Chief Executive of her power to enforce the law and
to maintain public order and safety. More importantly, a separatist group based in
Maguindanao has joined forces with the Ampatuans for this purpose. These are
the facts:
1. Local government offices in the province of Maguindanao were closed and
ranking local government officials refused to discharge their functions, which
hindered the investigation and prosecution team from performing their tasks;
2. The Local Civil Registrar of Maguindanao refused to accept the registration of
the death certificates of the victims purportedly upon the orders of Andal
Ampatuan Sr.;
3. The local judicial system has been crippled by the absence or non-appearance
of judges of local courts, thereby depriving the government of legal remedies in
their prosecutorial responsibilities (i.e. issuance of warrants of searches, seizure
and arrest). While the Supreme Court has designated an Acting Presiding Judge
from another province, the normal judicial proceedings could not be carried out in
view of threats to their lives or safety, prompting government to seek a change of
venue of the criminal cases after informations have been filed.534
534 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
Duly verified information disclosed that the Ampatuan group is behind the closing
down of government offices, the refusal of local officials to discharge their functions
and the simultaneous absence or non-appearance of judges in local courts.
Detailed accounts pertaining to the rebel armed groups and their active
movements in Maguindanao have been confirmed:
(I) As of November 29, 2009, it is estimated that there are about 2,413 armed
combatants coming from the municipalities of Shariff Aguak, Datu Unsay, Datu
Salibo, Mamasapano, Datu Saudi Ampatuan (Dikalungan), Sultan Sa Barungis,
Datu Piang, Guindulungan, and Talayan, who are in possession of around 2,000
firearms/armaments.
(II) The Ampatuan group has consolidated a group of rebels consisting of 2,413
heavily armed men, with 1,160 of them having been strategically deployed in
Maguindanao. Validated information on the deployment of rebels are as follows:
I. Around five hundred (500) armed rebels with 2 “Sanguko” armored vehicles
are in offensive position in the vicinity of Kakal, Ampatuan, Dimampao,
Mamasapano and Sampao Ampatuan.
II. A group with more or less 200 armed rebels has moved from Old Maganoy into
an offensive position.
III. More or less 80 fully armed rebels remain in Tuka, Mamasapano.
IV. More or less 50 fully armed rebels led by a former MNLF Commander are in
offensive position in Barangay Baital, Rajah Buayan.
V. More or less 70 fully armed rebels with two (2) M60 LMG remain in offensive
position in the vicinity of Barangay Kagwaran, Barangay Iginampong, Datu Unsay
(right side of Salvo-General Santos City national highway).
VI. More or less 60 fully armed rebels with four (4) M60 LMG remain in offensive
position in the vicinity of Kinugitan, the upper portion of Barangay Maitumaig,
Datu Unsay.
VII. Kagui Akmad Ampatuan was sighted in Sultan Sa Barongis with 400 armed
rebels. Locals heard him uttered “PATAYAN NA KUNG PATAYAN.”535
VOL. 668, MARCH 20, 2012 535
Fortun vs. Macapagal-Arroyo
VIII. More or less 100 armed rebels led by one of the identified leaders in the
massacre have been sighted at the quarry of Barangay Lagpan, boundary of Rajah
Buayan and Sultan Sa Barongis. The group is armed with one (1) 90RR, one (1)
cal 50 LMG, two (2) cal 30 LMG, two (2) 60 mm mortar and assorted rifles.
The strength of the rebels is itself estimated to be around 800 with about 2,000
firearms (Fas). These forces are concentrated in the following areas in
Maguindanao which are apparently also their political stronghold:
xxx
The existence of this armed rebellion is further highlighted by the recent recovery
of high powered firearms and ammunitions from the 400 security escorts of Datu
Andal Ampatuan Sr.
xxx
Indeed, the nature, quantity and quality of their weaponry, the movement
of heavily armed rebels in strategic positions, the closure of the
Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay
Municipal Hall, and fourteen other municipal halls, and the use of
armored vehicles, tanks and patrol cars with unauthorized “PNP/Police”
markings, all together confirm the existence of armed public uprising for
the political purpose of:
(1) removing allegiance from the national government of the Province
of Maguindanao; and,
(2) depriving the Chief Executive of her powers and prerogatives to
enforce the laws of the land and to maintain public order and safety.
While the government is at present conducting legitimate operations to
address the on-going rebellion, public safety still requires the continued
implementation of martial law and the suspension of the privilege of the
writ of habeas corpus in the Province of Maguindanao until the time that
such rebellion is completely quelled.7 (Emphasis supplied)
_______________
7 Id., at pp. 163-164, 173-177, 182.
536
536 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
In the meantime, the present petitions were filed impugning the
constitutionality of Proclamation No. 1959.
1. G.R. No. 190293 is a petition “for the issuance of a temporary restraining
order and writs of prohibition and preliminary prohibitory injunction (1) to
declare Proclamation No. 1959 or any act, directive or order arising from or
connected to it as unconstitutional, and (2) to enjoin public respondents
from further enforcing the same.”
2. G.R. No. 190294 is a petition for certiorari assailing the constitutionality of
Proclamation No. 1959 “for gross insufficiency of the factual basis in
proclaiming a state of martial law and suspending the [writ] in the Province
of Maguindanao.” It prayed for the issuance of a writ of prohibition under
Section 2 of Rule 65 to enjoin and prohibit respondents from enforcing
Proclamation No. 1959.
 3. G.R. No. 190301 is a petition seeking “the nullification of Proclamation No.
1959, proclaiming a state of martial law and suspending the [writ] in the
province of Maguindanao, except for certain areas, as it is patently illegal
and unconstitutional for lack of any factual basis.”
4. G.R. No. 190302 is a petition for certiorari to declare Proclamation No.
1959 as null and void for being unconstitutional, and for prohibition to
enjoin respondents from further actions or proceedings in enforcing or
implementing Proclamation No. 1959.
5. G.R. No. 190307 is a petition for certiorari, prohibition, and mandamus
with a prayer for a preliminary prohibitory injunction and/or a temporary
restraining order, and/or a petition for review pursuant to Article VII,
Section 18, paragraph 3 of the 1987 Constitution, asking the Court to
declare that then Executive Secretary Eduardo Ermita committed grave
abuse of discre-
537
VOL. 668, MARCH 20, 2012 537
Fortun vs. Macapagal-Arroyo
tion amounting to lack or excess of jurisdiction when he signed, in the name
of President Arroyo, Proclamation No. 1959. The petition also prayed for
the issuance of a Temporary Restraining Order and/or preliminary
prohibitory injunction, prohibiting respondents, and anyone acting under
their authority, stead, or behalf, from implementing Proclamation No. 1959
during the pendency of the case.
6. G.R. No. 190356 is a petition for prohibition, with an application for the
issuance of a temporary restraining order and/or a writ of preliminary
injunction, assailing the constitutionality and the sufficiency of the factual
basis of Proclamation No. 1959, declaring a state of martial law in the
province of Maguindanao (except for identified areas of the MILF) and
suspending the writ in the same area.
7. G.R. No. 190380 is a petition for certiorari assailing the validity of
Proclamation No. 1959, declaring a state of martial law in the province of
Maguindanao, except for the identified areas of the MILF, and suspending
the writ in the same area.
On 9 December 2009, Congress convened in joint session pursuant to Section
18, Article VII of the 1987 Constitution, which provides, “The Congress, if not in
session, shall, within twenty-four hours following such proclamation [of martial
law] or suspension [of the writ], convene in accordance with its rules without need
of a call.”
Meanwhile, eight days after the declaration of martial law, on 12 December
2009, President Arroyo issued Proclamation No. 1963 lifting martial law and
restoring the writ in Maguindanao. The full text of Proclamation No. 1963, signed
by President Arroyo and attested by Executive Secretary Eduardo Ermita,
reads:539
VOL. 668, MARCH 20, 2012 539
Fortun vs. Macapagal-Arroyo
PROCLAMATION NO. 1963
PROCLAIMING THE TERMINATION OF THE STATE OF MARTIAL LAW AND
THE RESTORATION OF THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS IN THE PROVINCE OF MAGUINDANAO
WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring
a state of emergency in the provinces of Maguindanao, Sultan Kudarat and the
City of Cotabato for the purpose of preventing and suppressing lawless violence in
the aforesaid areas;
WHEREAS, by virtue of the powers granted under Section 18, Article VII of
the Constitution, the President of the Philippines promulgated Proclamation No.
1959 on December 4, 2009, proclaiming a state of martial law and suspending the
privilege of the writ of Habeas Corpus in the province of Maguindanao, except for
certain areas;
WHEREAS, the Armed Forces of the Philippines and the Philippine National
Police have reported that over six hundred (600) persons who allegedly rose
publicly and took up arms against the Government have surrendered or have been
arrested or detained;
WHEREAS, the Armed Forces of the Philippines and the Philippine National
Police have reported that the areas where heavily armed groups in the province of
Maguindanao established positions to resist government troops have been cleared;
WHEREAS, the court and prosecutors’ offices of Cotabato City have resumed
normal working hours, paving the way for the criminal justice system in
Maguindanao to be restored to normalcy;
WHEREAS, the Vice-Governor of the Autonomous Region of Muslim Mindanao
has assumed as Acting Governor, paving the way for the restoration of the
functioning of government mechanisms in the province of Maguindanao;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by the
Constitution and by law, do hereby revoke Proclamation No. 1959 and proclaim
the termination of the state of martial law and the restoration of the privilege of
the writ of habeas
539
VOL. 668, MARCH 20, 2012 539
Fortun vs. Macapagal-Arroyo
corpus in the province of Maguindanao; provided that Proclamation No. 1946 shall
continue to be in force and effect.8
In the Resolutions dated 8 and 15 December 2009,9 the Court consolidated the
petitions and required the Office of the Solicitor General and the respondents to
comment on the petitions.
In a Resolution dated 12 January 2010, the Court resolved “to appoint as amici
curiae Justice Vicente Mendoza, Senator Joker Arroyo, and Father Joaquin
Bernas, [S.J.] and request them to submit their respective Amicus Brief on the
questions to be addressed by the parties.”10
Meanwhile, on 9 December 2009, an Information for rebellion was filed before
the Regional Trial Court, Branch 15, Cotabato City (RTC-Cotabato), against
Ampatuan, et al.11 The information reads:
“That on or about 27th day of November, 2009, and continuously thereafter,
until the present time, in Maguindanao Province
_______________
8 Rollo (G.R. No. 190293), pp. 190-191.
 9 Rollo (G.R. No. 190293), pp. 83-84; Rollo (G.R. No. 190356), p. 55.
10 Rollo (G.R. No. 190293), p. 407.
11 The accused are: Datu Andal Ampatuan, Sr., Datu Zaldy Uy Ampatuan,
Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan, and Datu Sajid Islam Uy
Ampatuan, as persons who allegedly promoted, maintained or headed the
rebellion; and Kusain Akmad Sakilan, Jovel Vista Lopez, Rommy Gimba Mamay,
Sammy Duyo Villanueva, Ibrahim Tukya Abdulkadir, Samil Manalo Mindo, Goldo
B. Ampatuan, Amaikugao Obab Dalgan, Billy Cabaya Gabriel, Jr., Abdulla
Kaliangat Ampatuan, Moneb Smair Ibrahim, Umpa Ugka Yarka, Manding
Abdulkadir, Dekay Idra Ulama, Kapid Gabriel Cabay, Koka Batong Managilid,
Sammy Ganda Macabuat, Duca Lendungan Amban, Akmad Abdullah Ulilisen and
several John Does, as participants or the persons executing the commands of
others in a rebellion or insurrection. (RTC-Quezon City Order dated 26 March
2010, pp. 3-4).
540
540 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
and within the jurisdiction of this Honorable Court, accused Datu Andal
Ampatuan, Sr., Datu Zaldy Uy Ampatuan, Datu Akmad Tato Ampatuan, Datu
Anwar Ampatuan and Datu Sajid Islam Uy Ampatuan as heads of the rebellion,
conspiring, confederating and cooperating with each other, as well as with the
other accused as participants or executing the commands of others in the rebellion
and also with other John Does whose whereabouts and identities are still
unknown, the said accused, who are heads of the rebellion, did then and there
willfully, unlawfully and feloniously help, support, promote, maintain, cause,
direct and/or command their co-accused who are their followers to rise publicly and
take arms against the Republic of the Philippines, or otherwise participate in such
armed public uprising, for the purpose of removing allegiance to the government
or its laws, the territory of the Republic of the Philippines or any part thereof or
depriving the Chief Executive of any of her powers or prerogatives as in fact they
have been massing up armed men and organizing assemblies, as a necessary
means to commit the crime of rebellion, and in furtherance thereof, have then and
there committed acts preventing public prosecutors from being available to
conduct inquest and preliminary investigations. There were massive formations of
numerous armed civilians supported by armored vehicles and under the command
of the Ampatuans who have formed a private army to resist government troops;
that the local provincial government of Maguindanao could not function with their
employees going on mass leave and their respective offices were closed and not
functioning. The Regional Trial Courts of the area are not functioning, refused to
accept the application for search warrants for violation of PD 1866 to authorize the
search of the properties of the heads of the rebellion; and that there was undue
delay in the issuance of court processes despite the exigency of the situation.
CONTRARY TO LAW.”12
On the next day, 10 December 2009, accused Ampatuan, et al. filed an Urgent
Omnibus Motion, which included a motion for judicial determination of probable
cause for the offense charged. On the same day, the Acting Presiding Judge of RTC-
Cotabato issued an Order, stating that “the Court needs
_______________
12 RTC-Quezon City Order dated 26 March 2010, p. 4.
541
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Fortun vs. Macapagal-Arroyo
time to go over the resolution finding probable cause against the accused Datu
Andal Ampatuan, Sr., [et al.].”
On 1 February 2010, the Regional Trial Court of Quezon City received the
records of the case, pursuant to the Supreme Court’s En Banc Resolution, dated
12 January 2010, which ordered the transfer of venue of the rebellion case to
Quezon City. The case, docketed as Criminal Case No. Q-10-162667 and
entitled People of the Philippines v. Datu Andal Ampatuan, Sr., et al., was raffled
to Branch 77 of the Regional Trial Court of Quezon City (RTC-Quezon City) on 2
February 2010.
On 3 February 2010, the accused filed an Urgent Motion praying for the
issuance of an order suspending the transfer of custody of all the accused pending
the resolution of their motion for judicial determination of probable cause.
On 26 March 2010, the RTC-Quezon City dismissed the charge of rebellion for
lack of probable cause, to wit:
“After a careful and judicious scrutiny of the evidence forming part of the
records and those adduced by the prosecution during the hearing on the motion for
judicial determination of probable cause, the Court is convinced that there exist[s]
no probable cause to hold under detention and to indict the accused for rebellion.
xxxx
Rebellion under Article 134 of the Revised Penal Code is committed—
[B]y rising publicly and taking arms against the Government for the purpose
of removing from the allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, or any body of land, naval, or other
armed forces or depriving the Chief Executive or the Legislature, wholly or
partially, of any of their powers or prerogatives.
The elements of the offense are:
1. That there be a (a) public uprising and (b) taking arms against the
Government; and
2. That the purpose of the uprising or movement is either—542
542 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
(a)to remove from the allegiance to said Government or its laws:
(1) the territory of the Philippines or any part thereof; or
(2) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of
their powers and prerogatives.
xxxx
The essential element of public armed uprising against the government is
lacking. There were no masses or multitudes involving crowd action done in
furtherance of a political end. So, even assuming that there was uprising, there is
no showing that the purpose of the uprising is political, that is, to overthrow the
duly constituted government in order to establish another form of government. In
other words, the second element is also absent.
xxxx
x x x It is quite interesting that the prosecution failed to present any particular
instance where the accused had directly or indirectly prevented government
prosecutors from performing their job relative to the prosecution of the suspects in
the infamous Maguindanao massacre.
On the contrary, documentary evidence on record shows that the alleged
principal suspect in the mass killings, Datu Andal Ampatuan, Jr., was made to
undergo inquest proceedings at General Santos City, immediately after he was
taken into custody by law enforcement authorities. This alone belies the
prosecution’s theory that the prosecutors were not available to conduct inquest and
preliminary investigations relative to the mass killings in the Municipality of
Ampatuan, Province of Maguindanao.
xxxx
x x x [T]he intelligence reports presented by the military and police are
unfounded. The reports do not suggest that the alleged armed groups loyal to the
accused are initiating violent and hostile actions, whether directly or indirectly,
against government security forces. Even the discovery and confiscation of large
cache of firearm and ammunitions, allegedly belonging to the Ampatuans, cannot
be considered as an act of rebellion. In fact, the firearms and ammunitions were
subsequently unearthed, recovered and confiscated from
543
VOL. 668, MARCH 20, 2012 543
Fortun vs. Macapagal-Arroyo
different places. The government security forces should have been able to engage
and neutralize the reported armed groups on the basis of its intelligence reports
confirming their size, strength and whereabouts.
xxxx
The statements of prosecution witnesses Mangacop and Dingcong are general
allegations. Their statements do not show that the accused were responsible for
the mass leave of officials and employees of the local government units. There is
no evidence to show that the accused actually prevented the local officials and
employees from reporting to their offices.
The evidence will show that the Department of Interior and Local Government
and the Philippine National Police closed down these offices, without any
justifiable reasons. In fact, there were news footages which showed that many
employees were caught by surprise on the unexpected closure of their offices.
xxxx
It is alleged in the Information that the courts were no longer functioning in
Cotabato City and in Maguindanao province, which have jurisdiction over the
place of the commission of the massacre. The factual circumstances, however, belie
said allegation. This Court takes judicial notice of the fact that no less than the
Supreme Court of the Republic of the Philippines had denied the allegation that
civilian courts were or are no longer functioning in Maguindanao.
xxxx
WHEREFORE, premises considered, the Court finds that there exists no
probable cause to indict and hold under detention the accused for rebellion.
Accordingly, the instant case is hereby dismissed and the accused-movants are
hereby ordered released from further detention, unless they are held by a court of
law for other lawful cause/s.
Let this Order be served personally upon the accused-movants, through the
responsible officers of the law having custody over them, who are hereby directed
to release the accused from detention immediately upon receipt hereof.544
544 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
SO ORDERED.”13
In an Order dated 28 May 2010, the RTC-Quezon City denied the prosecution’s
motion for reconsideration of the Order dated 26 March 2010.
The DOJ filed a petition for certiorari14 before the Court of Appeals assailing
the dismissal of the rebellion charges against accused Ampatuan, et al.
In a Decision promulgated on 15 December 2011,15 the Court of Appeals denied
the petition for certiorari. Quoting the findings of the RTC-Quezon City, the Court
of Appeals held that there is no probable cause as there is no showing that all the
elements of the crime of rebellion are present. The Court of Appeals stated that “a
review of its own narration of events only lends to the belief that the rebellion
existed only in the minds of the complainants.” The Court of Appeals ruled that
there was no armed public uprising, finding “no proof that armed groups were
massing up and were planning to instigate civil disobedience and to challenge the
government authorities for political ends.”
The Issues
The crux of the present controversy is the constitutionality of Proclamation No.
1959, declaring martial law and suspending the writ in Maguindanao. The
threshold issue before this Court is whether there is sufficient factual basis for the
issuance of Proclamation No. 1959 based on the stringent re-
_______________
13 RTC-Quezon City Order dated 26 March 2010, pp. 10-13, 15-16, 18. Penned
by Presiding Judge Vivencio S. Baclig.
14 Under Rule 65 of the 1997 Rules of Procedure. Docketed as CA-G.R. SP No.
115168.
15 Penned by Associate Justice Elihu A. Ybañez, and concurred in by Associate
Justices Fernanda Lampas Peralta and Francisco P. Acosta.
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VOL. 668, MARCH 20, 2012 545
Fortun vs. Macapagal-Arroyo
quirements set forth in Section 18, Article VII of the 1987 Constitution.
In its 15 December 2009 Resolution, the Court additionally posed the following
questions for resolution:
1. Whether the issuance of Proclamation No. 1963, lifting martial law and
restoring the writ in Maguindanao, rendered the issues raised in the present
petitions moot and academic;
2. Whether the term “rebellion” in Section 18, Article VII of the 1987
Constitution has the same meaning as the term “rebellion” that is defined in
Article 134 of the Revised Penal Code;
3. Whether the declaration of martial law or the suspension of the writ
authorizes warrantless arrests, searches and seizures;
 4. Whether the declaration of martial law or the suspension of the writ is a
joint and sequential function of the President and Congress such that, without
Congressional action on the proclamation either affirming or revoking it, the
President having in the meantime lifted the declaration and restored the writ, this
Court has nothing to review;
5. If the constitutional power of this Court to review the factual basis of the
declaration of martial law or suspension of the writ can be exercised
simultaneously with the constitutional power of Congress to revoke the declaration
or suspension, and the decision of this Court conflicts with the decision of
Congress, which decision shall prevail; and
6. Whether this Court’s determination of the sufficiency of the factual basis
of the declaration of martial law or suspension of the writ, which in the meantime
has been lifted and restored, respectively, would be essential to the resolution of
issues concerning the validity of related acts that the government committed
during the time martial law was in force.
In its Comment Re: Resolution dated 15 December 2009, the OSG raised the
issue of whether petitioners possess legal
546
546 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
standing to challenge the constitutionality of Proclamation No. 1959.
Discussion
I dissent from the majority’s dismissal of the petitions as moot. I find
Proclamation No. 1959 unconstitutional for lack of factual basisas required in
Section 18, Article VII of the 1987 Constitution for the declaration of martial law
and suspension of the writ. The majority in effect refuses to exercise this Court’s
constitutional power in Section 18 of Article VII, to “review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof.”
Before proceeding to the substantive issues, I shall first discuss the issue
on locus standi.
In its Comment Re: Resolution dated 15 December 2009, the OSG questioned
the legal standing of petitioners in challenging the constitutionality of
Proclamation No. 1959. The OSG argued that the phrase “any citizen” in Section
18, Article VII of the 1987 Constitution must be read in conjunction with the
phrase “appropriate proceeding.” Since petitioners deemed the original actions
for certiorari and prohibition as the appropriate proceeding referred to in Section
18, Article VII of the Constitution, petitioners must satisfy the requirements under
Rule 65 of the Rules of Court, one of which is the institution of the action by the
aggrieved party. The OSG pointed out that none of the petitioners qualify as an
aggrieved party.
This is error.
“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
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governmental act that is being challenged.16 In case of a suit questioning the
sufficiency of the factual basis of the proclamation of martial law or suspension of
the writ, such as here, Section 18, Article VII of the Constitution expressly
provides:
“The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpusor the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.”
(Emphasis supplied)
It is clear that the Constitution explicitly clothes “any citizen” with the legal
standing to challenge the constitutionality of the declaration of martial law or
suspension of the writ. The Constitution does not make any distinction as to who
can bring such an action. As discussed in the deliberations of the Constitutional
Commission, the “citizen” who can challenge the declaration of martial law or
suspension of the writ need not even be a taxpayer.17This was deliberately
designed to arrest, without further delay, the grave effects of an illegal declaration
of martial law or suspension of the writ, and to provide immediate relief to those
aggrieved by the same. Accordingly, petitioners, being Filipino citizens, possess
legal standing to file the present petitions assailing the sufficiency of the factual
basis of Proclamation No. 1959.
Moreover, given the transcendental importance of the issues raised in the
present petitions, the Court may relax the standing requirement and allow a suit
to prosper even where
_______________
16 SANLAKAS v. Executive Secretary Reyes, 466 Phil. 482, 507; 421 SCRA 656,
665-666 (2004), citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618;
338 SCRA 81 (2000).
17 BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS, 1995 Edition, p.
474.
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548 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
there is no direct injury to the party claiming the right of judicial review. 18 The
Court has held:
“Notwithstanding, in view of the paramount importance and the constitutional
significance of the issues raised in the petitions, this Court, in the exercise of its
sound discretion, brushes aside the procedural barrier and takes cognizance of the
petitions, as we have done in the early Emergency Powers Cases, where we had
occasion to rule:
‘x x x ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino
although they [involved] only an indirect and general interest shared in
common with the public. The Court dismissed the objection that they were
not proper parties and ruled that ‘transcendental importance to the
public of these cases demands that they be settled promptly and
 definitely, brushing aside, if we must, technicalities of procedure.’
We have since then applied the exception in many other
cases.”19 (Emphasis supplied)
I.
Whether the issuance of Proclamation No. 1963, lifting martial law and
restoring the writ in the province of Maguindanao, rendered the issues raised in
the petitions moot and academic.
The majority dismisses the petitions on mootness, agreeing with respondents’
contention that the issuance of Proclamation No. 1963, lifting martial law and
restoring the writ in the province of Maguindanao, rendered the issues raised in
the present petitions moot and academic. Respondents maintain
_______________
18 David v. Arroyo, 522 Phil. 705, 757-759; 489 SCRA 160, 220 (2006).
See Chavez v. Public Estates Authority, 433 Phil. 506; 403 SCRA 1 (2002), Bagong
Alyansang Makabayan v. Zamora, 396 Phil. 623; 342 SCRA 449 (2000).
19 Lim v. Executive Secretary, 430 Phil. 555, 570-571; 380 SCRA 739, 751
(2002) citing Bagong Alyansang Makabayan v. Zamora, supra.
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VOL. 668, MARCH 20, 2012 549
Fortun vs. Macapagal-Arroyo
that the petitions have ceased to present an “actual case or controversy” with the
lifting of martial law and the restoration of the writ, the sufficiency of the factual
basis of which is the subject of these petitions. Proclamation No. 1963 is allegedly
a “supervening event” that rendered of no practical use or value the consolidated
petitions.
As a rule, courts may exercise their review power only when there is an actual
case or controversy, which involves a conflict of legal claims susceptible of judicial
resolution. Such a case must be “definite and concrete, touching the legal relations
of parties having conflicting legal interests;” a real, as opposed to an imagined,
controversy calling for a specific relief.20
Corollarily, courts generally decline jurisdiction over a moot and academic case
or outrightly dismiss it on the ground of mootness. A moot and academic case is
one that ceases to present a justiciable controversy by virtue of supervening events,
so that assuming jurisdiction over the same, and eventually deciding it, would be
of no practical use or value.21
In David v. Arroyo,22 this Court held that the “moot and academic” principle is
not a magical formula that automatically dissuades courts in resolving a case.
Courts are not prevented from deciding cases, otherwise moot and academic, if (1)
there is a grave violation of the Constitution;23 (2) the situation is of exceptional
character and of paramount public interest;24 (3) the constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and
_______________
20 David v. Arroyo, supra note 18 at p. 753; p. 213.
21 Id., at p. 753; pp. 213-214.
22 Id., at p. 754; pp. 214-215.
23 Id., citing Province of Batangas v. Romulo, 473 Phil. 806; 429 SCRA 736
(2004).
24 Id., citing Lacson v. Perez, 410 Phil. 78; 357 SCRA 756 (2001).
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550 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
the public;25 and (4) the case is capable of repetition yet evading review.26
In Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain (GRP),27 the Court ruled that once a suit is filed,
the Court cannot automatically be deprived of its jurisdiction over a case by the
mere expedient of the doer voluntarily ceasing to perform the challenged conduct.
Otherwise, the doer would be dictating when this Court should relinquish its
jurisdiction over a case. Further, a case is not mooted when the plaintiff seeks
damages or prays for injunctive relief against the possible recurrence of the
violation.28
Contrary to the majority opinion, the present petitions fall squarely under
these exceptions, justifying this Court’s exercise of its review power.
First, whether Proclamation No. 1959 complied with the requirements under
Section 18, Article VII of the Constitution is without doubt an extremely serious
constitutional question. In order to forestall any form of abuse in the exercise of
the President’s extraordinary emergency powers, as what happened during the
Martial Law regime under former President Ferdinand Marcos (President
Marcos), the 1987 Constitution has carefully put in place specific safeguards,
which the President must strictly observe. Any declaration of martial law or
suspension of the writ falling short of the constitutional requirements must be
stricken down as a matter of constitutional duty by this Court.
_______________
25 Id., citing Province of Batangas v. Romulo, supra.
26 Id., citing Albaña v. Commission on Elections, 478 Phil. 941; 435 SCRA 98
(2004); Acop v. Guingona, Jr., 433 Phil. 62; 383 SCRA 577 (2002); SANLAKAS v.
Executive Secretary Reyes, supra note 16.
27 G.R. Nos. 183591, 183752, 183893, 183951, 183962, 14 October 2008, 568
SCRA 402.
28 Id.
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Fortun vs. Macapagal-Arroyo
Second, whether the President exercised her Commander-in-Chief powers in
accordance with the Constitution indisputably presents a transcendental issue
fully imbued with public interest. I agree with amicus curiae Father Joaquin
Bernas’ opinion: “The practice of martial rule can have a profoundly disturbing
effect on the life, liberty and fortunes of people. Likewise, the actions taken by the
police and military during the period when martial law is in effect can have serious
consequences on fundamental rights.”29
Third, the issue on the constitutionality of Proclamation No. 1959
unquestionably requires formulation of controlling principles to guide the
Executive, Legislature, and the public.
 The President’s issuance of Proclamation No. 1959 generated strong reactions
from various sectors of society. This, of course, is an expected response from a
nation whose painful memory of the dark past remains fresh. The nation
remembers that martial law was the vehicle of President Marcos to seize unlimited
State power, which resulted in gross and wanton violations of fundamental human
rights of the people. That era saw the collapse of the rule of law and what reigned
supreme was a one man-rule for the dictator’s own personal benefit.
The present controversy, being the first case under the 1987 Constitution
involving the President’s exercise of the power to declare martial law and suspend
the writ, provides this Court with a rare opportunity,30 which it must forthwith
_______________
29 Rollo (G.R. No. 190293), p. 508; Brief of Amicus Curiae Father Joaquin
Bernas, S.J.
30 Retired Chief Justice Panganiban called this a historic moment and
reminded the Court of its duty to uphold the Constitution. He writes:
The Court faces a historic moment. It cannot cower or cop-out or hide behind
legalisms. Worse, in a false sense of gratitude, it should not invent legal excuses
to justify or cover plainly unconstitutional acts. Rare is the opportunity for
greatness. Let the Court not
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552 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
seize, to formulate controlling principles for the guidance of all sectors concerned,
most specially the Executive which is in charge of enforcing the emergency
measures. Dismissing the petitions on the ground of mootness will most certainly
deprive the entire nation of instructive and valuable principles on this extremely
crucial national issue.
Fourth, the present case is capable of repetition yet evading review. I agree
with Father Bernas’ view: “[H]istory clearly attests that the events that can lead
to martial law, as well as the imposition of martial law itself, and the suspension
of the privilege together with actions taken by military and police during a period
of martial law are capable of repetition and are too important to allow to escape
review through the simple expedient of the President lifting a challenged
proclamation.”31
Fifth, the respondent’s or doer’s voluntary cessation of the questioned act does
not by itself deprive the Court of its jurisdiction once the suit is filed. In this case,
President Arroyo, after eight days from the issuance of Proclamation No. 1959,
issued Proclamation No. 1963 revoking Proclamation No. 1959. President Arroyo’s
lifting of martial law and restoration of the writ translate to a voluntary cessation
of the very acts complained of in the present petitions. However, the present
petitions were filed with this Court while Proclamation No. 1959 was still in effect
and before Proclamation No. 1963 was issued, thus foreclosing any legal strategy
to divest this Court of its jurisdiction by the mere cessation or withdrawal of the
challenged act.
_______________
squander the moment. Let it perform its duty forthrightly and uphold the
Constitution.
(http://opinion.inquirer.net/inquireropinion/columns/view/20091220-
243027/Uphold-the-Constitution [accessed on 4 November 2011], With Due
Respect: Uphold the Constitution)
31 Rollo (G.R. No. 190293), p. 509; Brief of Amicus Curiae Father Joaquin
Bernas, S.J.
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Moreover, the fact that every declaration of martial law or suspension of the
writ will involve its own set of circumstances peculiar to the necessity of time,
events or participants should not preclude this Court from reviewing the
President’s use of such emergency powers. Whatever are the circumstances
surrounding each declaration of martial law or suspension of the writ, the
declaration or suspension will always be governed by the same safeguards and
limitations prescribed in the same provisions of the Constitution. Failing to
determine the constitutionality of Proclamation No. 1959 by dismissing the cases
on the ground of mootness sets a very dangerous precedent to the leaders of this
country that they could easily impose martial law or suspend the writ without any
factual or legal basis at all, and before this Court could review such declaration,
they would simply lift the same and escape possible judicial rebuke.
II.
Whether the term “rebellion” in Section 18, Article VII of the 1987 Constitution
has the same meaning as the term “rebellion” that is defined in Article 134
of the Revised Penal Code.
Article 134 of the Revised Penal Code, as amended by Republic Act No.
6968,32 defines the crime of rebellion, thus:
“Art. 134. Rebellion or insurrection; How committed.—The crime of rebellion
or insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said Government
or its laws, the territory of the Philippine Islands or any part thereof, of any body
of land, naval or other armed forces, depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.”
_______________
32 An Act Punishing the Crime of Coup D’état By Amending Articles 134, 135
and 136 of Chapter One, Title Three of Act Numbered Thirty-Eight Hundred and
Fifteen, Otherwise Known as The Revised Penal Code, and for Other Purposes.
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554 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
The Constitution, however, does not provide any definition of the term
“rebellion.” Portions of the first paragraph of Section 18, Article VII of the
Constitution, where the term “rebellion” appears, read:
“Section 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law.”
 Respondents submit that the term “rebellion” must, “for constitutional law
purposes, be applied in such manner as to be amply responsive to the call of the
times.” Respondents point out that the deliberations of the 1986 Constitutional
Commission reveal that the concept of the term “rebellion” depends much on its
magnitude and scope, as determined by the President based on prevailing
circumstances.33
I disagree. The term “rebellion” in Section 18, Article VII of the 1987
Constitution must be understood as having the same meaning as the crime of
“rebellion” that is defined in Article 134 of the Revised Penal Code, as amended.
First, this is the clear import of the last two paragraphs of Section 18, Article
VII of the Constitution, which explicitly state:
“The suspension of the privilege of the writ of habeas corpus shall apply only
to persons judicially charged for rebellion or offenses inherent in, or directly
connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any
person thus arrested or detained shall be judicially charged within three
days, otherwise he shall be released.” (Emphasis supplied)
_______________
33 Rollo (G.R. No. 190293), p. 138.
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For a person to be judicially charged for rebellion, there must necessarily be a
statute defining rebellion. There is no statute defining rebellion other than the
Revised Penal Code. Hence, “one can be ‘judicially charged’ with rebellion only if
one is suspected of having committed acts defined as rebellion in Article 134 of the
Revised Penal Code.”34
Second, the Revised Penal Code definition of rebellion is the only legal
definition of rebellion known and understood by the Filipino people when they
ratified the 1987 Constitution. Indisputably, the Filipino people recognize and are
familiar with only one meaning of rebellion, that is, the definition provided in
Article 134 of the Revised Penal Code. To depart from such meaning is to betray
the Filipino people’s understanding of the term “rebellion” when they ratified the
Constitution. There can be no question that “the Constitution does not derive its
force from the convention which framed it, but from the people who ratified it.”35
Third, one of the Whereas clauses of Proclamation No. 1959 expressly cites the
Revised Penal Code definition of rebellion, belying the government’s claim that the
Revised Penal Code definition of rebellion merely guided the President in issuing
Proclamation No. 1959.
In SANLAKAS v. Executive Secretary,36 where the Court regarded President
Arroyo’s declaration of a state of rebellion
_______________
34 Id., at p. 493, Amicus Memorandum of Justice Vicente V. Mendoza.
35 See retired Chief Justice Puno’s separate concurring opinion in United
Pepsi-Cola Supervisory Union v. Judge Laguesma, 351 Phil. 244, 292; 288 SCRA
15, 58 (1998), citing Cooley, Treatise on Constitutional Limitations, Vol. 1, pp. 142-
143 [1927]; also cited in Willoughby, The Constitutional Law of the United States,
Sec. 32, pp. 54-55, Vol. 1 [1929].
36 Supra note 16.
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556 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
in Proclamation No. 427 a superfluity,37 the term “rebellion” in said proclamation
referred to the crime of rebellion as defined in Article 134 of the Revised Penal
Code. Proclamation No. 427 pertinently reads:
DECLARING A STATE OF REBELLION
“WHEREAS, certain elements of the Armed Forces of the Philippines, armed with
high-powered firearms and explosives, acting upon the instigation and command
and direction of known and unknown leaders, have seized a building in Makati
City, put bombs in the area, publicly declared withdrawal of support for, and took
arms against the duly constituted Government, and continue to rise publicly and
show open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines and
the Philippine National Police, and depriving the President of the
Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under
Article 134 of the Revised Penal Code, as amended; x x x” (Emphasis
supplied)
In issuing Proclamation No. 427, President Arroyo relied on the Revised Penal
Code definition of rebellion in declaring a state of rebellion. In other words,
President Arroyo understood that, for purposes of declaring a state of rebellion,
the term “rebellion” found in the Constitution refers to the crime of rebellion
defined in Article 134 of the Revised Penal Code.
In exercising the Commander-in-Chief powers under the Constitution, every
President must insure the existence of the elements of the crime of rebellion, which
are: (1) there is a (a) public uprising and (b) taking arms against the Government;
and (2) the purpose of the uprising or movement is either (a) to remove from the
allegiance to the Government or its laws:
_______________
37 Id., at p. 520. The Court stated that “[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.”
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(1) the territory of the Philippines or any part thereof; or (2) any body of land,
naval, or other armed forces; or (b) to deprive the Chief Executive or Congress,
wholly or partially, of any of their powers and prerogatives.38
To repeat, the term “rebellion” in Section 18, Article VII of the Constitution
must be understood to have the same meaning as the crime of rebellion defined in
Article 134 of the Revised Penal Code. Ascribing another meaning to the term
“rebellion” for constitutional law purposes, more specifically in imposing martial
law and suspending the writ, different from the definition in Article 134 of the
Revised Penal Code, overstretches its definition without any standards, invites
unnecessary confusion, and undeniably defeats the intention of the Constitution
to restrain the extraordinary Commander-in-Chief powers of the President.
 Since the term “rebellion” in Section 18, Article VII of the Constitution pertains
to the crime of rebellion as defined in Article 134 of the Revised Penal Code, the
next question turns on the kind of proof required for a valid declaration of martial
law and suspension of the writ.
While the Constitution expressly provides strict safeguards against any
potential abuse of the President’s emergency powers, the Constitution does not
compel the President to produce such amount of proof as to unduly burden and
effectively incapacitate her from exercising such powers.
Definitely, the President need not gather proof beyond reasonable doubt, which
is the standard of proof required for convicting an accused charged with a criminal
offense. Section 2, Rule 133 of the Rules of Court defines proof beyond reasonable
doubt as follows:
Proof beyond reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Moral
_______________
38 See Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007, 523 SCRA 318,
336.
558
558 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
certainty only is required, or that degree of proof which produces conviction in an
unprejudiced mind.
Proof beyond reasonable doubt is the highest quantum of evidence, and to
require the President to establish the existence of rebellion or invasion with such
amount of proof before declaring martial law or suspending the writ amounts to
an excessive restriction on “the President’s power to act as to practically tie her
hands and disable her from effectively protecting the nation against threats to
public safety.”39
Neither clear and convincing evidence, which is employed in either criminal or
civil cases, is indispensable for a lawful declaration of martial law or suspension
of the writ. This amount of proof likewise unduly restrains the President in
exercising her emergency powers, as it requires proof greater than preponderance
of evidence although not beyond reasonable doubt.40
Not even preponderance of evidence,41 which is the degree of proof necessary
in civil cases, is demanded for a lawful declaration of martial law.
_______________
39 Rollo (G.R. No. 190293), p. 512, Brief of Amicus Curiae Father Joaquin
Bernas, S.J.
40 Manalo v. Roldan-Confesor, G.R. No. 102358, 19 November 1992, 215 SCRA
808, 819. The Court held therein:
Clear and convincing proof is “x x x more than mere preponderance, but not to
extent of such certainty as is required beyond reasonable doubt as in criminal cases
x x x” while substantial evidence “x x x consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance x x x” Consequently, in
the hierarchy of evidentiary values, We find proof beyond reasonable doubt at the
highest level, followed by clear and convincing evidence, preponderance of
evidence, and substantial evidence, in that order. (Citations omitted)
41 Section 1, Rule 133 of the Rules of Court provides:
SECTION 1. Preponderance of evidence, how determined.—In civil cases, the
party having the burden of proof must establish his case by a preponderance of
evidence. In determining where the
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By preponderance of evidence is meant that the evidence as a whole adduced by
one side is superior to that of the other. It refers to the weight, credit and value of
the aggregate evidence on either side and is usually considered to be synonymous
with the term “greater weight of evidence” or “greater weight of the credible
evidence”. It is evidence which is more convincing to the court as worthy of belief
than that which is offered in opposition thereto.42
Weighing the superiority of the evidence on hand, from at least two opposing
sides, before she can act and impose martial law or suspend the writ unreasonably
curtails the President’s emergency powers.
Similarly, substantial evidence constitutes an unnecessary restriction on the
President’s use of her emergency powers. Substantial evidence is the amount of
proof required in administrative or quasi-judicial cases, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a
conclusion.43
_______________
preponderance or superior weight of evidence on the issues involved lies, the
court may consider all the facts and circumstances of the case, the witnesses’
manner of testifying, their intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their interest or want of
interest, and also their personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the number of witnesses,
though the preponderance is not necessarily with the greater number.
42 Raymundo v. Lunaria, G.R. No. 171036, 17 October 2008, 569 SCRA 526.
43 Section 5, Rule 133 of the Rules of Court provides:
SECTION 5. Substantial evidence.—In cases filed before administrative or
quasi-judicial bodies, a fact may be deemed established if it is supported by
substantial evidence, or that amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion.
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560 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
I am of the view that probable cause of the existence of either invasion or
rebellion suffices and satisfies the standard of proof for a valid declaration of
martial law and suspension of the writ.
Probable cause is the same amount of proof required for the filing of a criminal
information by the prosecutor and for the issuance of an arrest warrant by a judge.
Probable cause has been defined as a “set of facts and circumstances as would lead
a reasonably discreet and prudent man to believe that the offense charged in the
Information or any offense included therein has been committed by the person
sought to be arrested.”44
“In determining probable cause, the average man weighs the facts and
circumstances without resorting to the calibrations of the rules of
evidence of which he has no technical knowledge. He relies on common
sense. A finding of probable cause needs only to rest on evidence showing that,
more likely than not, a crime has been committed and that it was committed by
the accused. Probable cause demands more than suspicion; it requires less than
evidence that would justify conviction.”45 (Emphasis supplied)
Probable cause, basically premised on common sense, is the most reasonable,
most practical, and most expedient standard by which the President can fully
ascertain the existence or non-existence of rebellion, necessary for a declaration of
martial law or suspension of the writ. Therefore, lacking probable cause of the
existence of rebellion, a declaration of martial law or suspension of the writ is
without any basis and thus, unconstitutional.
The requirement of probable cause for the declaration of martial law or
suspension of the writ is consistent with Sec-
_______________
44 Santos v. Orda, Jr., G.R. No. 189402, 6 May 2010, 620 SCRA 375, 384.
45 Viudez II v. Court of Appeals, G.R. No. 152889, 5 June 2009, 588 SCRA 345,
357.
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tion 18, Article VII of the Constitution. It is only upon the existence of probable
cause that a person can be “judicially charged” under the last two paragraphs of
Section 18, Article VII, to wit:
“The suspension of the privilege of the writ of habeas corpus shall apply only
to persons judicially charged for rebellion or offenses inherent in, or directly
connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person
thus arrested or detained shall be judicially charged within three days,
otherwise he shall be released.” (Emphasis supplied)
III.
Whether the declaration of martial law or the suspension of the writ authorizes
warrantless arrests, searches and seizures.
Section 18, Article VII of the Constitution partially states:
“A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ
of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply only to
persons judicially charged for rebellion or offenses inherent in, or directly
connected with, invasion.”
The 1935 and 1973 Constitutions did not contain a similar provision. Obviously,
this new provision in the 1987 Constitution was envisioned by the framers of the
Constitution to serve as an essential safeguard against potential abuses in the
exercise of the President’s emergency powers.
The Constitution now expressly declares, “A state of martial law does not
suspend the operation of the Constitution.” Neither does a state of martial law
supplant the functioning of the civil courts or legislative assemblies. Nor does it
au-
562
562 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
thorize the conferment of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, or automatically suspend the writ. There is
therefore no dispute that the constitutional guarantees under the Bill of Rights
remain fully operative and continue to accord the people its mantle of protection
during a state of martial law. In case the writ is also suspended, the suspension
applies only to those judicially charged for rebellion or offenses directly connected
with invasion.
Considering the non-suspension of the operation of the Constitution during a
state of martial law, a declaration of martial law does not authorize warrantless
arrests, searches and seizures, in derogation of Section 2, Article III of the
Constitution, which provides:
“Section 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.”
Warrantless arrests, search and seizure are valid only in instances where such
acts are justified, i.e., those enumerated in Section 5, Rule 113 of the Rules of
Court.46
_______________
46 Sec. 5. Arrest without warrant; when lawful.—A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final
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In Pequet v. Tangonan,47 decided during the Martial Law regime under former
President Marcos, the Court stressed that military personnel, in effecting arrests,
must strictly observe the applicable Rules of Court and settled jurisprudence, thus:
“Martial law has precisely been provided in both the 1935 Charter and the
present Constitution to assure that the State is not powerless to cope with
invasion, insurrection or rebellion or any imminent danger of its occurrence. When
resort to it is therefore justified, it is precisely in accordance with and not in
defiance of the fundamental law. There is all the more reason then for the rule of
law to be followed. For as was so eloquently proclaimed in Ex parte Milligan: “The
Constitution is a “law for rulers and for people equally in war and in peace and
covers with the shield of its protection all classes of men at all times and under all
circumstances.” It is
_______________
judgment or is temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or jail
and shall be proceeded against in accordance with section 7 of Rule 112.
In addition, jurisprudence tells us that in the following instances, a
warrantless search and seizure is valid.
(1) search incidental to a lawful arrest,
(2) search of moving vehicles,
(3) seizure in plain view,
(4) customs search, and
(5) waiver by the accused themselves of their right against unreasonable
search and seizure.
See Manalili v. Court of Appeals, 345 Phil. 632, 645-646; 280 SCRA 400, 413
(1997), citing People v. Lacerna, 344 Phil. 100; 278 SCRA 561 (1997).
Stop-and-frisk is also another exception to the general rule against a search
without a warrant (Posadas v. Court of Appeals, G.R. No. 89139, 2 August 1990,
188 SCRA 288, 292-293, cited in Manalili).
47 160 Phil. 906, 909; 66 SCRA 216, 219-220 (1975); citations omitted.
564
564 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
true, of course, as admitted by Willoughby, who would limit the scope of martial
law power, that the military personnel are called upon to assist in the maintenance
of peace and order and the enforcement of legal norms. They can therefore act like
ordinary peace officers. In effecting arrests, however, they are not free to
ignore, but are precisely bound by, the applicable Rules of Court and
doctrinal pronouncements.” (Emphasis supplied)
In Aberca v. Ver,48 the Court emphasized that the suspension of the writ does
not give imprimatur to warrantless arrests in violation of the Constitution. In that
case, which involved the issue of whether the suspension of the writ bars a civil
action for damages for illegal searches and for other human rights violations
committed by the military, the Court held:
“At the heart of petitioners’ complaint is Article 32 of the Civil Code which
provides:
xxxx
It is obvious that the purpose of the above codal provision is to provide a
sanction to the deeply cherished rights and freedoms enshrined in the
Constitution. Its message is clear; no man may seek to violate those sacred rights
with impunity. In times of great upheaval or of social and political stress, when
the temptation is strongest to yield — borrowing the words of Chief Justice Claudio
Teehankee — to the law of force rather than the force of law, it is necessary to
remind ourselves that certain basic rights and liberties are immutable and cannot
be sacrificed to the transient needs or imperious demands of the ruling power. The
rule of law must prevail, or else liberty will perish. x x x
xxxx
It may be that the respondents, as members of the Armed Forces of the
Philippines, were merely responding to their duty, as they claim, “to prevent or
suppress lawless violence, insurrection, rebellion and subversion” in accordance
with Proclamation No. 2054 of President Marcos, despite the lifting of martial law
on January 27,
_______________
48 243 Phil. 735; 160 SCRA 590 (1988).
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1981, and in pursuance of such objective, to launch pre-emptive strikes against
alleged communist terrorist underground houses. But this cannot be construed
as a blanket license or a roving commission untramelled by any
constitutional restraint, to disregard or transgress upon the rights and
liberties of the individual citizen enshrined in and protected by the
Constitution. The Constitution remains the supreme law of the land to
which all officials, high or low, civilian or military, owe obedience and
allegiance at all times.
xxxx
This is not to say that military authorities are restrained from pursuing their
assigned task or carrying out their mission with vigor. We have no quarrel with
their duty to protect the Republic from its enemies, whether of the left or of the
right, or from within or without, seeking to destroy or subvert our democratic
institutions and imperil their very existence. What we are merely trying to say
is that in carrying out this task and mission, constitutional and legal
safeguards must be observed, otherwise, the very fabric of our faith will
start to unravel. x x x
We do not agree. We find merit in petitioners’ contention that the suspension
of the privilege of the writ of habeas corpus does not destroy petitioners’
right and cause of action for damages for illegal arrest and detention and
other violations of their constitutional rights. The suspension does not
render valid an otherwise illegal arrest or detention. What is suspended
is merely the right of the individual to seek release from detention
through the writ of habeas corpus as a speedy means of obtaining his
liberty.”48 (Emphasis supplied)
IV.
Whether the declaration of martial law or suspension of the writ is a joint and
sequential function of the President and Congress such that, without
Congressional action on the proclamation or suspension either affirming or
revoking it, the President having in the meantime lifted the same, this Court has
nothing to review.
 _______________
49 Id., at pp. 743-745, 748-749; pp. 600-605.
566
566 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
Section 18, Article VII of the 1987 Constitution provides:
“Section 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpusor the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.”
The Constitution vests exclusively in the President, as Commander-in-Chief,
the emergency powers to declare martial law or suspend the writ in cases of
rebellion or invasion, when the public safety requires it. The imposition of martial
law or suspension of the writ takes effect the moment it is declared by the
President. No other act is needed for the perfection of the declaration of martial
law or the suspension of the writ. As amicus curiae retired Justice Mendoza states:
“A declaration of martial law by the President alone is complete by itself and
does not require for its validity the approval or concurrence of Congress. It is a
power placed solely in the keeping of
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VOL. 668, MARCH 20, 2012 567
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the President to enable him to secure the people from harm and restore the public
order so that they can enjoy their freedoms. Because it is liable to abuse, it is made
subject to check by Congress and/or the [Supreme Court].
The power of Congress is to revoke—not to confirm or ratify, much less to
approve,—the President’s action declaring martial law or suspending the privilege
of the writ of habeas corpus. It is a veto power, just as the power of the judiciary to
review the President’s action is a veto power on the Executive’s action.”
It is clear, therefore, that the President’s power to declare martial law or
suspend the writ is independent, separate, and distinct from any constitutionally
mandated act to be performed by either the Legislature or the Judiciary. It is
neither joint nor sequential with Congress’ power to revoke the declaration or
suspension or to extend it upon the initiative of the President. Accordingly, even if
Congress has not acted upon the President’s declaration or suspension, the Court
may review the declaration or suspension in an appropriate proceeding filed by
any citizen. Otherwise stated, Congress’ inaction on the declaration or suspension
is not determinative of the Court’s exercise of its review power under Section 18,
Article VII of the Constitution.
To hold that the power of this Court to review the President’s declaration of
martial law or suspension of the writ is sequential, or joint, with the review
power of Congress is to make it impossible for this Court to decide a case
challenging the declaration or suspension “within thirty days from its filing,”
as mandated by the Constitution. Congress has no deadline when to revoke the
President’s declaration or suspension. Congress may not even do anything with
the President’s declaration or suspension and merely allow it to lapse after 60 days.
On the other hand, the Constitution mandates that this Court “must promulgate
its decision thereon within thirty days from [the] filing” of the case. Clearly,
the Court’s review power is neither sequential nor joint with the review power of
Congress.568
568 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
Moreover, the President’s lifting of the declaration or suspension before this
Court could decide the case within the 30-day period does not operate to divest this
Court of its jurisdiction over the case. A party cannot simply oust the Court’s
jurisdiction, already acquired, by a party’s own unilateral act. The President’s
lifting of the declaration or suspension merely means that this Court does not have
to decide the case within the 30-day period, as the urgency of deciding has ceased.
Certainly, the Court is not divested of its jurisdiction simply because the urgency
of deciding a case has ceased.
V.
If the constitutional power of this Court to review the factual basis of the
declaration of martial law or suspension of the writ can be exercised
simultaneously with the constitutional power of Congress to revoke the declaration
or suspension, and the decision of this Court conflicts with the decision of
Congress, which decision shall prevail.
The President has the sole and exclusive power to declare martial law or
suspend the writ. This power of the President is subject to review separately by
Congress and the Supreme Court. Justice Mendoza stresses, “Thus, Congress and
this Court have separate spheres of competence. They do not act ‘jointly and
sequentially’ but independently of each other.”50 Father Bernas points out, “Since
the powers of Congress and the Court are independent of each other, there is
nothing to prevent Congress and the Court from simultaneously exercising their
separate powers.”51
In the exercise by the Court and Congress of their separate “review powers”
under Section 18, Article VII of the Constitution, three possible scenarios may
arise.
 _______________
50 Id., at p. 497, Brief of Amicus Curiae Retired Associate Justice Vicente V.
Mendoza.
51 Id., at p. 523, Brief of Amicus Curiae Father Joaquin Bernas, S.J.
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First, the President’s martial law declaration or suspension of the writ is
questioned in the Supreme Court without Congress acting on the same. Such a
situation generates no conflict between the Supreme Court and Congress. There is
no question that the Supreme Court can annul such declaration or suspension if it
lacks factual basis. Congress, whose only power under Section 18, Article VII of
the Constitution is to revoke the declaration or suspension on any ground, is left
with nothing to revoke if the Court has already annulled the declaration or
suspension.
Second, Congress decides first to revoke the martial law declaration or
suspension of the writ. Since the Constitution does not limit the grounds for
congressional revocation, Congress can revoke the declaration or suspension for
policy reasons, or plainly for being insignificant, as for instance it involves only
one barangay rebelling, or if it finds no actual rebellion. In this case, the Supreme
Court is left with nothing to act on as the revocation by Congress takes effect
immediately. The Supreme Court must respect the revocation by Congress even if
the Court believes a rebellion exists because Congress has the unlimited power to
revoke the declaration or suspension.
Third, the Supreme Court decides first and rules that there is factual basis for
the declaration of martial law or suspension of the writ. In such a situation,
Congress can still revoke the declaration or suspension as its power under the
Constitution is broader insofar as the declaration or suspension is concerned.
“Congress cannot be prevented by the Court from revoking the President’s decision
because it is not for the Court to determine what to do with an existing factual
situation. x x x Congress has been given unlimited power to revoke the President’s
decision.”52 In short, even if there is an actual rebellion, whether affirmed or not
by the Supreme Court,
_______________
52 Id., at p. 524, Brief of Amicus Curiae Father Joaquin Bernas, S.J.
570
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Congress has the power to revoke the President’s declaration or suspension.
In the present controversy, Congress failed to act on Proclamation No. 1959
when it commenced its Joint Session on 9 December 2009 until the lifting of the
martial law declaration and restoration of the writ on 12 December 2009. Congress’
non-revocation of Proclamation No. 1959 categorizes the present case under the
first scenario. In such a situation, where no conflict ensues, Congress’ inaction on
Proclamation No. 1959 does not preclude this Court from ruling on the sufficiency
of the factual basis of the declaration of martial law and suspension of the writ.
VI.
Whether this Court’s determination of the sufficiency of the factual basis of the
declaration of martial law and suspension of the writ, which in the meantime have
been lifted, would be essential to the resolution of issues concerning the validity of
related acts that the government committed during the time that martial law and
the suspension of the writ were in force.
Indisputably, unlawful acts may be committed during martial law or
suspension of the writ, not only by the rebels, but also by government forces who
are duty bound to enforce the declaration or suspension and immediately put an
end to the root cause of the emergency. Various acts carried out by government
forces during martial law or suspension of the writ in the guise of protecting public
safety may in reality amount to serious abuses of power and authority. Whatever
the Court’s decision will be on the sufficiency of the factual basis of the President’s
declaration or suspension does not preclude those aggrieved by such illegal acts
from pursuing any course of legal action available to them. Therefore, the
determination by this Court of the sufficiency of the factual basis of the declaration
or suspension is not essential to the resolution of issues concerning the validity of
related acts that government forces may have committed during the
emergency.571
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VII.
Whether Proclamation No. 1959 has sufficient factual basis.
The full text of Section 18, Article VII of the 1987 Constitution reads:
“Section 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours
from the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpusor the extension thereof,
and must promulgate its decision thereon within thirty days from its filing.
 A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ
of habeas corpus.572
572 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
The suspension of the privilege of the writ of habeas corpus shall apply only to
persons judicially charged for rebellion or offenses inherent in, or directly
connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person
thus arrested or detained shall be judicially charged within three days, otherwise
he shall be released.”
The Commander-in-Chief provisions of the 1935 and 1973 Constitutions, on
the other hand, respectively state:
Section 10(2), Article VII of the 1935 Constitution
(2) The President shall be 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, insurrection, or rebellion.
In case of invasion, insurrection, or rebellion or imminent danger thereof, when
the public safety requires it, he may suspend the privilege of the writ of habeas
corpus, or place the Philippines or any part thereof under Martial Law.
Section 12, Article IX of the 1973 Constitution
SEC. 12. The Prime Minister shall be 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, insurrection, or rebellion
or imminent danger thereof, when the public safety requires it, he may suspend
the privilege of the writ of habeas corpus, or place the Philippines or any part
thereof under Martial Law.
Notably, the 1935 and 1973 Constitutions only specify the instances when martial
law may be declared or when the writ may be suspended.
The 1987 Constitution, on the other hand, not only explicitly includes the
specific grounds for the activation of such emergency powers, but also imposes
express limitations on the exercise of such powers. Upon the President’s
declaration of martial law or suspension of the writ, the following safeguards are
automatically set into motion: (1) the duration of martial law or suspension of the
writ is limited to a period not exceeding sixty days; (2) the President is mandated
to submit
573
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Fortun vs. Macapagal-Arroyo
a report to Congress within forty-eight hours from the declaration or suspension;
and (3) the declaration or suspension is subject to review by Congress, which may
revoke such declaration or suspension. If Congress is not in session, it shall
convene within 24 hours without need for call.53 In addition, the sufficiency of the
factual basis of the declaration, suspension, or their extension is subject to review
by the Supreme Court in an appropriate proceeding.
The mechanism and limitations laid down in Section 18, Article VII of the
Constitution in declaring martial law or suspending the writ were introduced
precisely to preclude a repetition of the kind of martial law imposed by President
Marcos, which ushered in a permanent authoritarian regime. As Father Bernas
wrote in his book:
“The Commander-in-Chief provisions of the 1935 Constitution had enabled
President Ferdinand Marcos to impose authoritarian rule on the Philippines from
1972 to 1986. Supreme Court decisions during that period upholding the actions
taken by Mr. Marcos made authoritarian rule part of Philippine constitutional
jurisprudence. The members of the Constitutional Commission, very much aware
of these facts, went about reformulating the Commander-in-Chief powers with a
view to dismantling what had been constructed during the authoritarian years.
The new formula included revised grounds for the activation of emergency powers,
the manner of activating them, the scope of the powers, and review of presidential
action.”54
Consistent with the framers’ intent to reformulate the Commander-in-Chief
powers of the President, the 1987 Constitution requires the concurrence of two
conditions in declaring martial law or suspending the writ, namely, (1) an actual
invasion or rebellion, and (2) public safety requires the exer-
_______________
53 See Senate P.S. Resolution No. 1522.
54 Bernas, The Intent of the 1986 Constitution Writers, 1995 Edition, p. 456.
574
574 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
cise of such power.55 The Constitution no longer allows imminent danger of
rebellion or invasion as a ground for the declaration or suspension, which the 1935
and 1973 Constitutions expressly permitted.
In the present case, President Arroyo grounded the declaration of martial law
and suspension of the writ on the existence of rebellion in Maguindanao. In her
Report submitted to Congress, President Arroyo cited the following instances as
constitutive of rebellion:
1. Local government offices in the province of Maguindanao were closed and
ranking local government officials refused to discharge their functions, which
hindered the investigation and prosecution team from performing their tasks;
2. The Local Civil Registrar of Maguindanao refused to accept the registration of
the death certificates of the victims purportedly upon the orders of Andal
Ampatuan Sr.;
3. The local judicial system has been crippled by the absence or non-appearance
of judges of local courts, thereby depriving the government of legal remedies in
their prosecutorial responsibilities (i.e. issuance of warrants of searches, seizure
and arrest). While the Supreme Court has designated an Acting Presiding Judge
from another province, the normal judicial proceedings could not be carried out in
view of threats to their lives or safety, prompting government to seek a change of
venue of the criminal cases after informations have been filed.
xxxx
Indeed, the nature, quantity and quality of their weaponry, the movement
of heavily armed rebels in strategic positions, the closure of the
Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay
Municipal Hall, and four-
_______________
55 SANLAKAS v. Executive Secretary, supra note 16. See Section 15, Article
III of the 1987 Constitution. In Velasco v. Court of Appeals, 315 Phil. 757; 245
SCRA 677 (1995), the Court declared that the privilege of the writ of habeas
corpus cannot be suspended except in cases of invasion or rebellion when the public
safety requires it.
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Fortun vs. Macapagal-Arroyo
teen other municipal halls, and the use of armored vehicles, tanks and
patrol cars with unauthorized “PNP/Police” markings, all together
confirm the existence of armed public uprising for the political purpose
of:
(1) removing allegiance from the national government of the Province
of Maguindanao; and,
(2) depriving the Chief Executive of her powers and prerogatives to
enforce the laws of the land and to maintain public order and safety.
While the government is at present conducting legitimate operations to
address the on-going rebellion, public safety still requires the continued
implementation of martial law and the suspension of the privilege of the
writ of habeas corpus in the Province of Maguindanao until the time that
such rebellion is completely quelled.56 (Emphasis supplied)
The question now is whether there was probable cause, which is the required
quantum of proof, to declare the existence of rebellion justifying the President’s
declaration of martial law and suspension of the writ.
The answer is in the negative.
The contemporaneous public statements made by the President’s alter egos
explaining the grounds for the issuance of Proclamation No. 1959 negate rather
than establish the existence of an actual rebellion in Maguindanao.
During the interpellations in the Joint Session of Congress, convened pursuant
to the provisions of Section 18, Article VII of the Constitution, then Executive
Secretary Eduardo Ermita admitted the absence of an actual rebellion in
Maguindanao, to wit:
REP. LAGMAN. Mr. Speaker, Mr. President, a perusal of the text of
Proclamation No. 1959 would show the absence of a clear and categorical finding
or determination that actual rebellion is occur-
_______________
56 Rollo (G.R. No. 190293), pp. 163-164, 173-177, 182.
576
576 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
ring in Maguindanao. Would that be an accurate observation of a reading of the
text of Proclamation No. 1959?
MR. ERMITA. Your Honor, you may be correct that there was no actual
rebellion going on. However, all the indicators that rebellion is, indeed, being
committed and happening on the ground is because of the presence of the armed
groups that prevent authorities from being able to do its duty of even effecting the
arrest of those who should be arrested in spite of the testimonies of witnesses.
REP. LAGMAN. Well, we are happy to note that there is an admission
that there was no actual rebellion in Maguindanao. But the presence of
armed groups would be indicative of lawless violence which is not synonymous to
rebellion. As a matter of fact, the Maguindanao situationer which was made by
Police Director Andres Caro was premised on a statement that this was the worst
election-related violence—an act of gross lawlessness but definitely not related to
rebellion.
x x x x57 (Emphasis supplied)
_______________
57 Transcript of Plenary Proceedings, Joint Session of the Congress of the
Republic of the Philippines, 9 December 2009. See also “Ermita: ML proclaimed
without actual rebellion,” The Philippine Star, 11 December 2009
(http://www.philstar.com/Article.aspx?
articleId=531416&publicationSubCategoryId=63 [accessed on 4 November 2011],
where the following report appeared:
Executive Secretary Eduardo Ermita admitted Wednesday night that
President Arroyo proclaimed martial law in Maguindanao without an
“actual” rebellion taking place in the province as required by the
Constitution.
But in response to questions raised by Albay Rep. Edcel Lagman,
Ermita pointed to the presence of armed groups supporting the Ampatuan
family that were preventing the authorities from enforcing the law, which,
he added, was frustrating the ends of justice.
Ermita said the government considered the “presence” or “massing” of
the Ampatuans’ armed followers as “rebellion,” one of only two grounds
under the Constitution, aside from invasion, for the imposition of martial
law.
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Also, during the Joint Session, then Senator (now President) Benigno S.
Aquino III pointed out the public statements made by former Department of
Interior and Local Government Secretary Ronaldo V. Puno, then Armed Forces of
the Philippines spokesperson Lt. Col. Romeo Brawner, and former Defense
Secretary Norberto Gonzales admitting there was no need for martial law:
THE SENATE PRESIDENT. With the indulgence of the Chamber and the
Speaker, may we request now to allow the distinguished Gentleman from Tarlac,
Senator Benigno “Noynoy” Aquino III the floor.
SEN. AQUINO. Thank you, Mr. President. May I direct my first question to
Secretary Puno. And this is to lay the proper predicate for our first question. The
newspaper has been quoting Secretary Puno as not having recommended the
imposition of martial law prior to its imposition in Maguindanao. May we know if
this was a correct attribution to the Honorable Secretary.
_______________
Ermita though conceded there was no actual rebellion taking place, in
the sense of people taking up arms to withdraw allegiance from the central
government or prevent it from enforcing the law.
 Lagman said that Ermita’s answers to his questions and Justice
Secretary Agnes Devanadera’s statement that there was rebellion in
Maguindanao was only “looming” prove that Mrs. Arroyo received “bad
legal advice” in imposing martial rule in the province.
“The President has enough powers under the commander-in-chief
provision of the Constitution to quell a ‘looming’ rebellion or neutralize the
‘presence’ or ‘massing’ of armed loyalists of the Ampatuans. She is
authorized to call on the Armed Forces to accomplish that objective,”
Lagman said.
Lagman pointed out the absence of rebellion in Maguindanao as defined
under the Revised Penal Code.
“What happened there was lawlessness. It was just a partisan conflict
that did not require the imposition of martial law,” he said.
578
578 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
MR. PUNO. Until, Your Honor, Mr. Speaker, Mr. Senate President, until the
situation developed where police officers went absent on leave and joined the rebel
forces, and a significant segment of the civilian armed volunteers of the local
governments constituted themselves into a rebel group, until that time I did not
believe that it was necessary that martial law be declared. But upon receipt of a
report from the Armed Forces of the Philippines and the briefing conducted with
the National Security Council, where it was made clear that a separate rebel
armed group had already been organized, we concurred, Your Honor, with the
recommendation on martial law.
SEN. AQUINO. For the record, Mr. Senate President and Mr. Speaker, the AFP,
we understand, through the spokesperson, Lt. Col. Romeo Brawner, declared on
13 November 2009 that there is no need for the declaration of martial law in
Maguindanao or elsewhere in the country because the AFP and PNP are on top of
the situation. He was quoted as saying, and we quote: “We now have a level of
normalcy in the Province of Maguindanao, primarily because of the occupation by
our government forces and our law enforcement agencies of the seats of
government.” Secretary Norberto Gonzales, who unfortunately is not present,
declared on December 1, 2009 that the government’s effort to contain the tension
in the province is holding ground. We also have now the admission by the
honorable Secretary Puno that prior to the undated national security briefing, he
was also of the opinion that martial law was not necessary in Maguindanao. x x
x58
Even before the interpellations in Congress, then Executive Secretary Ermita
publicly confirmed the inadequacies of Proclamation No. 1959:
“We’ll have to get the report from the field from the AFP and PNP that the
conditions that prompted the President to issue the proclamation, have improved,
and therefore, the threat of further lawlessness and probability of
rebellion is already down.”59 (Emphasis supplied)
_______________
58 Transcript of Plenary Proceedings, Joint Session of the Congress of the
Republic of the Philippines, 9 December 2009.
59 Quoted in the Petition in G.R. No. 190307, p. 15, citing http://www.abs-
cbnnews.com/nation/12/04/09/arroyo-orders-martial-
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Fortun vs. Macapagal-Arroyo
Significantly, at a press conference, then Secretary of Justice Agnes
Devanadera declared, “We noticed and observed there was a rebellion in the
offing.” In another press briefing, Devanadera stated that “rebellion which does
not necessarily involve a physical takeover by armed elements as argued by some
critics of the President’s order, was “looming in Maguindanao.”60 In short, the
Department of Justice Secretary, who is the principal legal officer of the Arroyo
administration, publicly admitted that there was only a “looming” rebellion, a
“rebellion in the offing,” in Maguindanao.
Likewise, in a press conference, “the AFP Chief of Staff claimed that armed
groups, numbering between 40 to 400 men and spread out in the province, planned
to prevent the arrest of members of the Ampatuan family, the prime suspects in
the Maguindanao massacre. He stated, “Based on the reports we received, there
were a lot of groupings of armed groups in different places. We also received reports
that they have plans to undertake hostile action if ever government officials, the
Ampatuans particularly, were taken in custody. We felt this was very
imminent threat, that’s why we recommended this proclamation.”61
Then Defense Secretary Norberto Gonzales was quoted as stating that the
“recommendation to declare martial law in Maguindanao is a sensitive matter that
needs to be studied.”62 In an interview, Gonzales said, “titingnan natin (we will
see) how the situation develops there.”63 He further stated, “As of
_______________
law-maguindanao [accessed on 10 November 2011], Arroyo proclaims martial
law in Maguindanao.
60 http://www.philstar.com/Article.aspx?articleid=529869 [accessed on 4
November 2011], DOJ: Rebellion was looming.
61 Mantawil Petition (G.R. No. 190356), pp. 8-9.
62 http://www.mb.com.ph/node/231907/martial-law-idea-need [accessed on 4
November 2011], Martial law idea needs study — Gonzales.
63 Id.
580
580 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
now, I think whatever the government is doing so far is really effective. We will
wait for the results of the work of Secretary Devanadera of Justice and also
Secretary Puno of DILG. So, so far maganda naman yun takbo ng ating operation
doon.”64 Gonzales added, “Yung tungkol sa martial law, alam mo sensitive na
bagay yan kaya pag-aaralan natin.”65
The admissions and public statements made by members of the Cabinet, who
are the President’s alter egos, as well as the public assessments made by the
highest ranking military officials, clearly demonstrate that instead of being
anchored on the existence of an actual rebellion, Proclamation No. 1959 was based
on a mere threat, or at best an imminent threat of rebellion, or a rebellion “in the
offing.”66 This undeniably runs counter to the letter and intent of the Constitution.
A looming rebellion is analogous to imminent danger of rebellion, which was
deliberately eliminated by the framers of the 1987 Constitution as a ground for the
declaration of martial law precisely to avoid a repetition of the misguided and
oppressive martial law imposed by former President Marcos.
There is absolutely nothing which shows that the Ampatuans and their
armed followers, at any point in time, intended to overthrow the government. On
the contrary, the Ampatuans were publicly known as very close political allies of
President Arroyo. There is not a single instance where the Ampatuans denounced,
expressly or impliedly, the government, or attempted to remove allegiance to the
government or its laws or to deprive the President or Congress of any of their
powers. Based on the records, what the government clearly established, among
others, were (1) the existence of the Am-
_______________
64 Id.
65 Id.
66 http://newsinfo.inquirer.net/breakingnews/nation/view/
20091205-240273/A-rebellion-was-in-the-offingjustice-chief [accessed on 4 the government branded the Ampatuans, the alleged masterminds of the
November 2011], ‘A rebellion was in the offing’—justice chief.
581
VOL. 668, MARCH 20, 2012 581
Fortun vs. Macapagal-Arroyo
patuans’ private army; and (2) the Ampatuans’ vast collection of high powered
firearms and ammunitions.
These shocking discoveries, however, do not amount to rebellion as defined in
Article 134 of the Revised Penal Code. Based on the statements made by ranking
government and military officials, and as clearly found by the RTC-Quezon City in
Criminal Case No. Q-10-162667 and affirmed by the Court of Appeals, there was
no public uprising and taking arms against the government for the
purpose of removing from the allegiance to the government or its laws
the territory of the Philippines or any part thereof, or depriving the Chief
Executive or Congress, wholly or partially, of any of their powers and
prerogatives. The Ampatuans’ amassing of weaponry, including their collection
of armored cars, tanks and patrol cars, merely highlights this political clan’s
unbelievably excessive power and influence under the Arroyo administration.
To repeat, only in case of actual invasion or rebellion, when public safety
requires it, may the President declare martial law or suspend the writ. In declaring
martial law and suspending the writ in Maguindanao in the absence of an actual
rebellion, President Arroyo indisputably violated the explicit provisions of Section
18, Article VII of the Constitution.
Conclusion
Thirty-seven years after President Marcos’ Proclamation No. 1081, President
Arroyo issued Proclamation No. 1959 declaring martial law and suspending the
privilege of the writ of habeas corpus in the province of Maguindanao, except in
MILF identified areas. President Marcos’ martial law, justified to counteract the
Communist insurgency in the country,67 turned out to be a vehicle to establish a
one-man authoritar-
_______________
67 Proclamation No. 1081 (PROCLAIMING A STATE OF MARTIAL LAW IN THE
PHILIPPINES), 21 September 1972.
582
582 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
ian rule in the country. Expectedly, President Arroyo’s Proclamation No. 1959
refreshed the nation’s bitter memories of the tyranny during the Martial Law
regime of President Marcos, and sparked the public’s vigilance to prevent a
possible recurrence of that horrible past.
In issuing Proclamation No. 1959, President Arroyo exercised the most
awesome and powerful among her graduated Commander-in-Chief powers to
suppress a supposed rebellion in Maguindanao, following the massacre of 57
civilians in the worst election-related violence in the country’s history. Since then,
massacre, as rebels orchestrating the overthrow of the Arroyo administration.
However, the events before, during, and after the massacre negate the existence
of an armed uprising aimed at bringing down the government, but rather point to
a surfeit of impunity and abuse of power of a political clan closely allied with the
Arroyo administration. In short, Proclamation No. 1959 was issued without an
actual rebellion justifying the same.
Apparently, President Arroyo resorted to martial law and suspension of the
writ, not to quell a purported rebellion because there was absolutely none, but to
show her indignation over the gruesome massacre and her swift response in
addressing the difficult situation involving her close political allies. She was
reported to be “under pressure to deliver, amid rising public outrage and
international condemnation of the massacre.”68 However, mounting pressure to
bring the murderers to justice, without any invasion or rebellion in Maguindanao,
does not warrant the imposition of martial law or suspension of the writ. Rather,
what the nation expects, and what the victims and their families truly deserve, is
the
_______________
68http://www.time.com/time/world/article/0,8599,1943191,00.html
[accessed on 4 November 2011], Behind the Philippines’ Maguindanao Massacre,
by Alastair McIndoe.
583
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Fortun vs. Macapagal-Arroyo
speedy and credible investigation and prosecution, and eventually the conviction,
of the merciless killers.
In sum, Proclamation No. 1959 was anchored on a non-existent rebellion.
Based on the events before, during and after the Maguindanao massacre, there
was obviously no rebellion justifying the declaration of martial law and suspension
of the writ. The discovery of the Ampatuans’ private army and massive weaponry
does not establish an armed public uprising aimed at overthrowing the
government. Neither do the closure of government offices and the reluctance of the
local government officials and employees to report for work indicate a rebellion.
The Constitution is clear. Only in case of actual invasion or rebellion, when
public safety requires it, can a state of martial law be declared or the privilege of
the writ of habeas corpus be suspended. Proclamation No. 1959 cannot be justified
on the basis of a threatened, imminent, or looming rebellion, which ground was
intentionally deleted by the framers of the 1987 Constitution. Considering the non-
existence of an actual rebellion in Maguindanao, Proclamation No. 1959 is
unconstitutional for lack of factual basis as required under Section 18, Article VII
of the Constitution for the declaration of martial law and suspension of the
privilege of the writ of habeas corpus.
Accordingly, I vote to GRANT the petitions and DECLARE Proclamation No.
1959 UNCONSTITUTIONAL for failure to comply with Section 18, Article VII of
the Constitution.
DISSENTING OPINION
VELASCO, JR., J.:
The martial law era has left the country with harrowing memories of a dark
past, thus invoking passionate sentiments from the people and bringing forth
remarkable vigilance as a lesson learned, and only rightfully so. Nonetheless, legal
dis-
584
584 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
course must be made within bounds, as must always be the case in a civilized
society governed by the rule of law and not of men. It is on the basis of the foregoing
precept that I am constrained to register my dissent in the instant case.
As can be gathered from the ponencia, the controversy in the instant case
revolves around the issuance by then President Gloria Macapagal-Arroyo
(President Arroyo) of Proclamation No. 1959,1which declared a state of martial law
and suspended the privilege of the writ of habeas corpus in the province of
Maguindanao, except for certain identified areas of the Moro Islamic Liberation
Front.
To recall, the issuance of Proclamation No. 1959 was precipitated by the
chilling and loathsome killing, on November 23, 2009, of 57 innocent civilians,
including the wife of then Buluan Vice-Mayor Esmail “Toto” Mangudadatu
(Mangudadatu), who was supposed to file the latter’s certificate of candidacy for
Governor of Maguindanao with the Provincial Office of the Commission on
Elections in Shariff Aguak, accompanied by Mangudadatu’s relatives, lawyers and
members of the press, among others. The victims included five others who only
happened to be travelling on the same highway traversed by the Mangudadatu
convoy.
As a consequence of the detestable killings tagged by media as the
“Maguindanao massacre,” President Arroyo immediately issued Proclamation No.
19462 on the following day, November 24, 2009, by which a state of emergency was
declared in the provinces of Maguindanao and Sultan Kudarat, and in the City of
Cotabato, “to prevent and suppress the occurrence of similar other incidents of
lawless violence in Central Mindanao.” This was followed with the issuance of the
assailed Proclamation No. 1959 on December 4, 2009.
_______________
1 Rollo (G.R. No. 190293), pp. 186-187.
2 Id., at p. 185.
585
VOL. 668, MARCH 20, 2012 585
Fortun vs. Macapagal-Arroyo
Subsequently, on December 6, 2009, President Arroyo submitted her Report3 to
Congress in compliance with Section 18, Article VII of the 1987 Constitution.
Meanwhile, the instant petitions were filed challenging the constitutionality of
Proclamation No. 1959.
Also consonant with Sec. 18, Art. VII of the 1987 Constitution, Congress
convened in joint session on December 9, 2009.
Eventually, on December 12, 2009, President Arroyo lifted martial law and
restored the privilege of the writ of habeas corpus in Maguindanao with the
issuance of Proclamation No. 1963.4
Justiciability of the instant petitions
In the majority opinion, the Court declined to rule on the constitutionality of
Proclamation No. 1959, racionating that “given the prompt lifting of the
proclamation before Congress could review it and before any serious question
affecting the rights and liberties of Maguindanao’s inhabitants could arise, the
Court deems any review of its constitutionality the equivalent of beating a dead
horse.”
It is my view that, despite the lifting of the martial law and restoration of the
privilege of the writ, the Court must take the bull by the horn to guide, explain
and elucidate to the executive branch, the legislative branch, the bar, and more
importantly the public on the parameters of a declaration of martial law.
Indeed, it is a well-settled rule that this Court may only adjudicate actual and
current controversies.5 This is because the Court is “not empowered to decide moot
questions or abstract
_______________
3 Id., at pp. 163-182.
4 Id., at pp. 190-191.
5 Pormento v. Estrada, G.R. No. 191988, August 31, 2010, 629 SCRA 530, 533;
citing Honig v. Doe, 484 U.S. 305 (1988).
586
586 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
propositions, or to declare principles or rules of law which cannot affect the result
as to the thing in issue in the case before it.”6Nonetheless, this “moot and
academic” rule admits of exceptions. As We wrote in David v. Arroyo:
“The “moot and academic” principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when constitutional issue
raised requires formulation of controlling principles to guide the bench,
the bar, and the public; and fourth, the case is capable of repetition yet
evading review.”7(Emphasis supplied.)
All the aforementioned exceptions are present in this case. First, in the instant
petitions, it was alleged that the issuance of Proclamation No. 1959 is violative of
the Constitution. Second, it is indubitable that the issues raised affect the public’s
interest as they may have an unsettling effect on the fundamental rights of the
people. Third, the Court has the duty to formulate controlling principles
concerning issues which involve the declaration of martial law and suspension of
the privilege of the writ of habeas corpus to guide the bench, the bar, and the
public. And fourth, the assailed proclamation is capable of repetition yet evading
review. Considerably, the instant petitions are subject to judicial review.
While I disagree with the majority, I wish, however, to take exception to certain
suppositions and discourse made in the dissent of Justice Carpio. In particular, I
refer to his discussion on hypothetical situations concerning the simultaneous
exercise of the power to review by this Court and by the Congress, as well as to the
proposition that “[i]n declaring martial law and suspending the writ in
Maguindanao in the absence
_______________
6 Id.
7 G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, May
3, 2006, 489 SCRA 160.
587
VOL. 668, MARCH 20, 2012 587
Fortun vs. Macapagal-Arroyo
of an actual rebellion, President Arroyo indisputably violated the explicit
provisions of Section 18, Article VII of the Constitution.”
Simultaneous exercise by the Court
and the Congress of their constitu-
tional power to review
One of the matters traversed by the dissent of Justice Carpio is “[i]f the
constitutional power of this Court to review the factual basis of the declaration of
martial law or suspension of the writ can be exercised simultaneously with the
constitutional power of the Congress to revoke the declaration of martial law or
suspension of the writ, and if the decision of this Court conflicts with the decision
of Congress, which decision shall prevail[?]”8
In addressing this issue, Justice Carpio, in his dissent, considered three
scenarios, to wit:
“First, the President’s martial law declaration or suspension of the writ is
questioned in the Supreme Court without Congress acting on the same. Such a
situation generates no conflict between the Supreme Court and Congress. There is
no question that the Supreme Court can annul such declaration or suspension if it
lacks factual basis. Congress, whose only power under Section 18, Article VII of
the Constitution is to revoke the initial declaration or suspension on any ground,
is left with nothing to revoke if the Court has already annulled the declaration.
Second, Congress decides first to revoke the martial law declaration or
suspension of the writ. Since the Constitution does not limit the grounds for
congressional revocation, Congress can revoke the declaration or suspension for
policy reasons, or plainly for being insignificant, as for instance it involves only
one barangay rebelling, or if it finds no actual rebellion. In this case, the Supreme
Court is left with nothing to act on as the revocation by Congress takes effect
_______________
8 Rollo (G.R. No. 190293), pp. 192-194. Resolution dated December 15, 2009.
588
588 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
immediately. The Supreme Court must respect the revocation by Congress even if
the Court believes a rebellion exists because Congress has the unlimited power to
revoke the declaration or suspension.
Third, the Supreme Court decides first and rules that there is factual basis for
the declaration of martial law or suspension of the writ. In such a situation,
Congress can still revoke the declaration or suspension as its power under the
Constitution is broader insofar as the declaration or suspension is concerned.
“Congress cannot be prevented by the Court from revoking the President’s decision
because it is not for the Court to determine what to do with an existing factual
situation. x x x Congress has been given unlimited power to revoke the President’s
decision.” In short, even if there is an actual rebellion, whether affirmed or not by
the Supreme Court, Congress has the power to revoke the President’s declaration
or suspension” (Italics in the original; citations omitted.)
With the exception of the first, the two other possible scenarios adverted to
that may arise from the action or inaction of the two co-equal branches of the
government upon the declaration by the President of martial law or suspension of
the writ cannot be resolved in the present case. Otherwise, this Court would, in
effect, be making a ruling on a hypothetical state of facts which the Court is
proscribed from doing.
As We have mentioned in Albay Electric Cooperative, Inc. v. Santelices, “[i]t is
a rule almost unanimously observed that courts of justice will take cognizance only
of justiciable controversies wherein actual and not merely hypothetical
issues are involved.”9 The reason behind this requisite is “to prevent the courts
through avoidance of premature adjudication from entangling themselves in
abstract disagreements, and for us to be satisfied that the case does not present a
_______________
9 G.R. No. 132540, April 16, 2009, 585 SCRA 103, 118-119; citing Jaafar v.
Commission on Elections, 364 Phil 322, 327-328; 304 SCRA 672, 677-678 (1999);
emphasis supplied.
589
VOL. 668, MARCH 20, 2012 589
Fortun vs. Macapagal-Arroyo
hypothetical injury or a claim contingent upon some event that has not and indeed
may never transpire.”10
Further, the discussions made in Justice Carpio’s dissent, and curiously, even
in the majority opinion itself, fail to take into consideration the powers of review
by this Court under its expanded jurisdiction as conferred by Sec. 1, Art. VIII of
the Constitution, “which includes the authority to determine whether grave abuse
of discretion amounting to excess or lack of jurisdiction has been committed by any
branch or instrumentality of the government.”11
In his dissent, Justice Carpio explicitly declares that “Congress has the
unlimited power to revoke the declaration or suspension.” Similarly, the majority,
in justifying the Court’s refusal to exercise its judicial power of review, states that
“[o]nly when Congress defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in as its final rampart.”
Irresistibly implied in these statements is that once Congress acts and reviews the
declaration of martial law and suspension of the privilege of the writ, this Court
becomes powerless to make further inquiry on the sufficiency of the factual basis
of the proclamation in an appropriate proceeding filed by any citizen as mandated
under Sec. 18, Art. VII of the Constitution.
The categorical statements made in both the majority opinion and in Justice
Carpio’s dissent minimize, if not totally disregard, the power of this Court to pass
upon the constitutionality of acts of Congress under its expanded jurisdiction
under the Constitution. The significance of this Court’s power to review under its
“expanded certiorari jurisdiction” was
_______________
10 Separate Opinion of Justice Nachura in De Castro v. Judicial and Bar
Council, G.R. Nos. 191002, 191032, 191057, A.M. No. 10-2-5-SC, G.R. Nos. 191149,
191342 & 191420, March 17, 2010, 615 SCRA 666, 780; citing Office of the
Governor v. Select Committee of Inquiry, 271 Conn. 540, 570, 858 A. 2d 709 (2004).
11 Coseteng v. Mitra, G.R. No. 86649, July 12, 1990, 187 SCRA 377, 383.
590
590 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
extensively discussed in Francisco, Jr. v. Nagmamalasakit na mga Manananggol
ng mga Manggagawang Pilipino, Inc.:
“As indicated in Angara v. Electoral Commission, judicial review is indeed 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 x x x.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in
our Constitution. Each department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and distinct
that the Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for an elaborate
system of checks and balances to secure coordination in the workings of
the various departments of the government. x x x And the judiciary in
turn, with the Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of the
Constitution.
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, “x x x judicial review is essential for the maintenance and enforcement
of the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the
boundaries of authority and control between them.” To him, “[j]udicial review is
the chief, indeed the only, medium of participation—or instrument of
intervention—of the judiciary in that balancing operation.”
To ensure the potency of the power of judicial review to curb grave abuse of
discretion by “any branch or instrumentalities of government,” the afore-
quoted Section 1, Article VIII of the Constitution engraves, for the first time into
its history, into block letter law the so-called “expanded certiorari jurisdiction” of
this Court x x x.
xxxx
There is indeed a plethora of cases in which this Court exercised the power of
judicial review over congressional action. Thus, in
591
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Fortun vs. Macapagal-Arroyo
Santiago v. Guingona, Jr., this Court ruled that it is well within the power and
jurisdiction of the Court to inquire whether the Senate or its officials committed a
violation of the Constitution or grave abuse of discretion in the exercise of their
functions and prerogatives. In Tanada v. Angara, in seeking to nullify an act of the
Philippine Senate on the ground that it contravened the Constitution, it held that
the petition raises a justiciable controversy and that when 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.
In Bondoc v. Pineda, this Court declared null and void a resolution of the House of
Representatives withdrawing the nomination, and rescinding the election, of a
congressman as a member of the House Electoral Tribunal for being violative of
Section 17, Article VI of the Constitution. In Coseteng v. Mitra, it held that the
resolution of whether the House representation in the Commission on
Appointments was based on proportional representation of the political parties as
provided in Section 18, Article VI of the Constitution is subject to judicial review.
In Daza v. Singson, it held that the act of the House of Representatives in removing
the petitioner from the Commission on Appointments is subject to judicial review.
In Tanada v. Cuenco, it held that although under the Constitution, the legislative
power is vested exclusively in Congress, this does not detract from the power of the
courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission, it ruled that confirmation by the National Assembly of the election of
any member, irrespective of whether his election is contested, is not essential
before such member-elect may discharge the duties and enjoy the privileges of a
member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise
of judicial review over impeachment proceedings would upset the system of checks
and balances. Verily, the Constitution is to be interpreted as a whole and “one
section is not to be allowed to defeat another.” Both are integral components of the
calibrated system of independence and interdependence that insures that no
branch of government act beyond the powers assigned to it by the
Constitution.”12 (Emphasis in the original; citations omitted.)
_______________
12 G.R. No. 160261, November 10, 2003, 415 SCRA 44, 123-124, 132-133.
592
592 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
Indeed, the Court does not have the authority to pass upon the wisdom behind
the acts of the Congress. Nonetheless, the Court is not powerless to review the
legality of the manner by which such acts have been arrived at in order to
determine whether Congress has transgressed the reasonable bounds of its
power.13 This is an obligation which the Court cannot, and should not, abdicate.
Moreover, by indicating that Congress, if it so decides to act, has an unlimited
power to revoke the declaration of a state of martial law or suspension of the
privilege of the writ unfettered by this Court’s power to review, We are treading
on treacherous grounds by handing over such an unbridled discretion to Congress.
Such statement, to me, partakes of an obiter without precedential value, being
unnecessary to resolve the issues and arrive at a proper decision in the present
case. This matter should instead be addressed at the proper case and at the proper
time.
President Arroyo’s alleged indisputable
violation of the explicit provisions of the
Constitution
With due respect to Justice Carpio, I cannot join him in his contention that
“President Arroyo indisputably violated the explicit provisions of Section 18,
Article VII of the Constitution” for declaring martial law and suspending the writ
in Maguindanao in the absence of an actual rebellion. The magnification is
uncalled for.
When We speak of “violation” in reference to a law, it pertains to an act of
breaking or dishonoring the law.14 The use of said word, coupled with the
ascription of the term “indisputable,” somehow implies that an act was done
intentionally or
_______________
13 See Coseteng v. Mitra, supra note 11.
14 BLACK’S LAW DICTIONARY (9th ed., 2010).
593
VOL. 668, MARCH 20, 2012 593
Fortun vs. Macapagal-Arroyo
wilfully. At worst, its use can even be suggestive of bad faith on the part of the
doer.
In the case at bar, there is neither any allegation nor proof that President
Arroyo acted in bad faith when she declared martial law and suspended the writ
of habeas corpus in Maguindanao. There was also no showing that there was a
deliberate or intentional attempt on the part of President Arroyo to break or
dishonor the Constitution by issuing the assailed proclamation. On the contrary,
what is extant from the records is that President Arroyo made such declaration
and suspension on the basis of intelligence reports that lawless elements have
taken up arms and committed public uprising against the government and the
people of Maguindanao for the purpose of depriving the Chief Executive of her
powers and prerogatives to enforce the laws of the land and to maintain public
order and safety, to the great damage, prejudice and detriment of the people in
Maguindanao and the nation as a whole.
President Arroyo cannot be blamed for relying upon the information given to
her by the Armed Forces of the Philippines and the Philippine National Police,
considering that the matter of the supposed armed uprising was within their realm
of competence, and that a state of emergency has also been declared in Central
Mindanao to prevent lawless violence similar to the “Maguindanao massacre,”
which may be an indication that there is a threat to the public safety warranting
a declaration of martial law or suspension of the writ.
Certainly, the President cannot be expected to risk being too late before
declaring martial law or suspending the writ of habeas corpus. The Constitution,
as couched, does not require precision in establishing the fact of rebellion. The
President is called to act as public safety requires.
The following excerpts from the Brief of Amicus Curiae of Fr. Joaquin Bernas,
S.J. is illuminating:594
594 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
“From all these it is submitted that the focus on public safety adds a nuance to
the meaning of rebellion in the Constitution which is not found in the meaning of
the same word in Article 134 of the Penal Code. The concern of the Penal Code,
after all, is to punish acts of the past. But the concern of the Constitution is to
counter threat to public safety both in the present and in the future arising from
present and past acts. Such nuance, it is submitted, gives to the President a degree
of flexibility for determining whether rebellion constitutionally exists as basis for
martial law even if facts cannot obviously satisfy the requirements of the Penal
Code whose concern is about past acts. To require that the President must first
convince herself that there can be proof beyond reasonable doubt of the existence
of rebellion as defined in the Penal Code and jurisprudence can severely restrict
the President’s capacity to safeguard public safety for the present and the future
and can defeat the purpose of the Constitution.
What all these point to are that the twin requirements of “actual rebellion or
invasion” and the demand of public safety are inseparably entwined. But whether
there exists a need to take action in favour of public safety is a factual issue
different in nature from trying to determine whether rebellion exists. The need of
public safety is an issue whose existence, unlike the existence of rebellion, is not
verifiable through the visual or tactile sense. Its existence can only be determined
through the application of prudential estimation of what the consequences might
be of existing armed movements. Thus, in deciding whether the President acted
rightly or wrongly in finding that public safety called for the imposition of martial
law, the Court cannot avoid asking whether the President acted wisely and
prudently and not in grave abuse of discretion amounting to lack or excess of
jurisdiction. Such decision involves the verification of factors not as easily
measurable as the demands of Article 134 of the Penal Code and can lead to a
prudential judgment in favour of the necessity of imposing martial law to ensure
public safety even in the face of uncertainty whether the Penal Code has been
violated. This is the reason why courts in earlier jurisprudence were reluctant to
override the executive’s judgment.
In sum, since the President should not be bound to search for proof beyond
reasonable doubt of the existence of rebellion and since deciding whether public
safety demands action is a prudential matter, the function of the President is far
from different from the func-
595
VOL. 668, MARCH 20, 2012 595
Fortun vs. Macapagal-Arroyo
tion of a judge trying to decide whether to convict a person for rebellion or not. Put
differently, looking for rebellion under the Penal Code is different from looking for
rebellion under the Constitution.”15
Significantly, the President has the discretion to make a declaration of martial
law or suspension of the writ of habeas corpusbased on information or facts
available or gathered by the President’s office. It would be preposterous to impose
upon the President to be physically present at the place where a threat to public
safety is alleged to exist as a condition to make such declaration or suspension.
In the present case, it should not escape the attention of the Court that
President Arroyo complied with the reportorial requirement in Sec. 18, Art. VII of
the Constitution, which states that “within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress.”
Further, it appearing thereafter that when President Arroyo subsequently
received intelligence reports on the advisability of lifting martial law or restoring
the writ of habeas corpus in Maguindanao, she immediately issued the
corresponding proclamation.
To a certain extent, I conform to Justice Carpio’s dissent as to the
unconstitutionality of Proclamation No. 1959. To my mind, however, it is one thing
to declare a decree issued by the President as unconstitutional, and it is another
to pronounce that she indisputably violated the Constitution. Notably, the power
to issue the subject decree is expressly granted the President. There is also
compliance with the report required after the issuance of said decree. However,
the issuance of the subject decree may not be sustained after due consideration of
the circumstances which may or may not support such decree.
_______________
15 Rollo (G.R. No. 190293), pp. 516-518.
596
596 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
This dissent fears that overbearing declarations may later create an
unwarranted limitation on the power of a President to respond to exigencies and
requirements of public safety. We must recognize that as society progresses, then
so may the manner and means of endangering the very existence of our society
develop. This Court is fortunate for having the benefit of hindsight. This benefit
may not be equally shared by the President, who is tasked to act with a sense of
urgency based on best judgment as facts develop and events unfold. We may only
be judges of the past. But history will be harsh on a President who is not up to the
challenge and declines, or worse, fails to act when so required.
I, therefore, vote to declare Proclamation No. 1959 unconstitutional, but as
heretofore qualified.
SEPARATE OPINION
PEREZ, J.:
I concur in the resulting dismissal of these petitions, more than by reason of
their mootness but because I find our action overdue, it being my well-thought-out
position that the constitutional authority of the Supreme Court to review the
sufficiency of the factual basis of Proclamation No. 1959 has expired and is no
more.
Proclamation No. 1959 declaring martial law and suspending the privilege of
the writ of habeas corpus in the Province of Maguindanao was issued by then
President Gloria Macapagal Arroyo on 4 December 2009. In compliance with the
mandate of Section 18, Article VII of the present Constitution, she submitted her
Report to Congress on 6 December 2009 or “within forty-eight hours from the
proclamation.”
Seven petitions, now before the Court, were filed disputing the
constitutionality of the Proclamation. In the Resolutions of 8 and 15 December
2009, the Court consolidated the petitions and required the Office of the Solicitor
General to com-
597
VOL. 668, MARCH 20, 2012 597
Fortun vs. Macapagal-Arroyo
ment on the petitions. By that time, 15 December 2009, President Arroyo has, on
12 December 2009, already issued Proclamation No. 1963 lifting martial law and
restoring the privilege of the writ of habeas corpus in Maguindanao.1
The authority of this Court to act on the petitions is embodied in the third
paragraph of Section 18, Article VII of the 1987 Constitution which states:
“The Supreme Court may review in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.”
Clearly, the mandate is both grant and limitation of authority. For while the
Court, upon a proceeding filed by any citizen, may review the sufficiency of the
factual basis of the proclamation of martial law by the President, or even its
extension by Congress, it can only do so within thirty days from filing of the
proceeding, the period within which it MUST PROMULGATE its decision.
Over two (2) years have passed since the seven petitions at bar were filed.
Today, unquestionably, the Constitutional authority granted to the Court to decide
the petitions had lapsed.
It must be made clear that I do not rely, for my position, on the act of the
doer2 “voluntarily ceasing to perform the challenged conduct” or, precisely, on the
lifting of martial law by Proclamation No. 1963. Indeed, from the time of lifting on
12 December 2009 up to the thirtieth day following the filing of the instant
petitions, Proclamation No. 1959 may be reviewed
_______________
1 This and the immediately preceding paragraph were taken from
the ponencia of Justice Antonio T. Carpio.
2 Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain (GRP), 568 SCRA 402, cited by Justice Antonio
T. Carpio, p. 27 of ponencia.
598
598 SUPREME COURT REPORTS ANNOTATED
Fortun vs. Macapagal-Arroyo
for all the reasons mentioned in the ponencia against which I do not now dissent.
The Court did not say during the permitted time of pronouncement what the
majority now deems needed saying. Thereafter, and today, no opinion as judgment
is constitutionally permissible.
Neither can I join the submission that the question of constitutionality of
Proclamation No. 1959 requires formulation of controlling principles to guide the
Executive, Legislative and the public.
Respectfully, I submit that each and every exercise by the President of his
commander-in-chiefship3 must, if review by this Court be asked and called for, be
examined under the current events and the present affairs that determine the
presence of the necessity of such exercise.
All the decisions of the actors covered by Section 18 of Article VII must be done
within the tight and narrow time frames in the provision. These framed periods, I
submit, emphasize the imperative for currency of the decision that each must
make, as indeed, the presidential proclamation, aside from having been subjected
to constitutional checks, has been given limited life.
The present limitations of the power to declare martial law, including the
consequent circumscription of the legislative and judicial participation in the
exercise of the power, themselves limit the occasion and need for “formulation of
controlling principles to guide the Executive, Legislative and the public.” The way
and manner by which the Constitution provided for the commander-in-chief clause
require decisions for the present, not guidelines for the future. I respectfully
submit that the Court cannot now define for the future the “sufficiency of the
factual basis” of the possibly coming proclamations of martial law. I cannot see
how such a pre-determination can prevent an unconstitutional imposition of
_______________
3 Term used by Bernas, SJ., The 1987 Constitution of the Philippines and
Commentary, 2003 Ed., p. 865.
599
VOL. 668, MARCH 20, 2012 599
Fortun vs. Macapagal-Arroyo
martial law better than the requirement, already constitutionalized, that the
President must within forty-eight hours, submit a report in person or in writing to
Congress which can, by a majority of all its members revoke, the imposition.
WHEREFORE, the cases are declared closed and terminated by constitutional
rescript.
Petitions dismissed for being moot and academic.
Notes.—Section 20, Title I of Book III of Executive Order 292 speaks of other
powers vested in the President under the law—the exercise of the President’s
residual powers under this provision requires legislation, as the provision clearly
states that the exercise of the President’s other powers and functions has to be
“provided for under the law.” (Review Center Association of the Philippines vs.
Ermita, 583 SCRA 428 [2009])
The Court finds it well-within its power to determine whether public
respondent committed a violation of the Constitution or gravely abused its
discretion in the exercise of its functions and prerogatives that could translate as
lack or excess of jurisdiction, which would require corrective measures from the
Court. (Gutierrez vs. The House of Representatives Committee on Justice, 643
SCRA 198 [2011])
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights reserved.
G.R. No. 162230. August 12, 2014.*
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L.
QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M.
SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM,
FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, EUGENIA M. LALU,
JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P.
MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B.
MANALUS, CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M.
HERNANDEZ, FERMIN B. DELA PEÑA, MARIA DELA PAZ B. CULALA,
ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA,
MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G.
GARCIA, PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG,
ROSARIO C. BUCO, GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ,
PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO,
PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG,
ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA
M. BANGIT, GUILERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA
C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B.
TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y.
MANIO, MAMERTA T. SAGUM, CARIDAD L. TURLA, et al., in their capacity
and as members of the “Malaya Lolas Organizations,” petitioners, vs.
_______________
* EN BANC.
596THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO,
THE HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO-
ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N.
GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L.
BENIPAYO, respondents.
Remedial Law; Special Civil Actions; Certiorari; To establish the timeliness
of the petition for certiorari, the date of receipt of the assailed judgment, final order
or resolution or the denial of the motion for reconsideration or new trial must be
stated in the petition; otherwise, the petition for certiorari must be dismissed.—
Petitioners did not show that their bringing of the special civil action
for certiorari was timely, i.e., within the 60-day period provided in Section 4, Rule
65 of the Rules of Court, to wit: Section 4. When and where position filed.—The
petition shall be filed not later than sixty (60) days from notice of judgment, order
or resolution. In case a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the sixty (60)-day period shall be counted
from notice of the denial of said motion. As the rule indicates, the 60-day period
starts to run from the date petitioner receives the assailed judgment, final order
or resolution, or the denial of the motion for reconsideration or new trial timely
filed, whether such motion is required or not. To establish the timeliness of the
petition for certiorari, the date of receipt of the assailed judgment, final order or
resolution or the denial of the motion for reconsideration or new trial must be
stated in the petition; otherwise, the petition for certiorari must be dismissed. The
importance of the dates cannot be understated, for such dates determine the
timeliness of the filing of the petition for certiorari.
Same; Provisional Remedies; Preliminary Injunction; Preliminary injunction
is provisional because it constitutes a temporary measure availed of during the
pendency of the action; and it is ancillary because it is a mere incident in and is
dependent upon the result of the main action.—Preliminary injunction is merely a
provisional remedy that is adjunct to the main case, and is subject to the latter’s
outcome. It is not a cause of action itself. It is provisional because it constitutes a
temporary measure availed of during the pendency of the action; and it is ancillary
because it is a mere incident in and is dependent upon the result of the main
action.597Following the dismissal of the petition for certiorari, there is no more
legal basis to issue the writ of injunction sought. As an auxiliary remedy, the writ
of preliminary mandatory injunction cannot be issued independently of the
principal action.
Same; Same; Mandatory Injunction; A mandatory injunction requires the
performance of a particular act.—In any event, a mandatory injunction requires
the performance of a particular act. Hence, it is an extreme remedy, to be granted
only if the following requisites are attendant, namely: (a) The applicant has a clear
and unmistakable right, that is, a right in esse; (b) There is a material and
substantial invasion of such right; and (c) There is an urgent need for the writ to
prevent irreparable injury to the applicant; and no other ordinary, speedy, and
adequate remedy exists to prevent the infliction of irreparable injury.
Constitutional Law; Foreign Relations; The Constitution has entrusted to the
Executive Department the conduct of foreign relations for the Philippines; The
Supreme Court (SC) cannot interfere with or question the wisdom of the conduct of
foreign relations by the Executive Department.—The Constitution has entrusted to
the Executive Department the conduct of foreign relations for the Philippines.
Whether or not to espouse petitioners’ claim against the Government of Japan is
left to the exclusive determination and judgment of the Executive Department.
The Court cannot interfere with or question the wisdom of the conduct of foreign
relations by the Executive Department. Accordingly, we cannot direct the
Executive Department, either by writ of certiorari or injunction, to conduct our
foreign relations with Japan in a certain manner.
Sereno, CJ., Concurring Opinion:
Constitutional Law; International Law; Reparations; View that the statement
in the 2010 ponencia — that the “wisdom of such decision [to waive all claims for
reparations] is not for the courts to question” — must be qualified.—I am of the
opinion, however, that the statement in the 2010 ponencia — that the
“wisdom of such decision [to waive all claims for reparations] is not for
the courts to question” — must be qualified. As party to the 1949 Geneva
Conventions, the Philippines has limited discretion to waive another state’s
reparations obligation arising from the commission of grave breaches of the
convention. The 1949 Geneva
598Convention Relative to the Protection of Civilian Persons in Time of War
(Geneva Convention IV) expressly states the following: ARTICLE 147 Grave
breaches to which the preceding Article relates shall be those involving any of
the following acts, if committed against persons or property protected by the
present Convention: wilful killing, torture or inhuman treatment, including
biological experiments, wilfully causing great suffering or serious injury to
body or health, unlawful deportation or transfer or unlawful confinement of
a protected person, compelling a protected person to serve in the forces of a
hostile Power, or wilfully depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention, taking of hostages and
extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly. ARTICLE 148 No High
Contracting Party shall be allowed to absolve itself or any other High
Contracting Party of any liability incurred by itself or by another High
Contracting Party in respect of breaches referred to in the preceding
Article.
Same; Same; Same; View that a state is precluded from absolving other states
from liability on the ground that the individual persons who actually perpetrated
the grave breach of the convention have already been punished; Pursuant to the
1949 Geneva Conventions, a state remains responsible — and continues to be liable
to pay compensation — for the grave breaches committed against protected
persons.—It is said that the non-absolution clause under Article 148 is a logical
consequence of the grave breaches under Article 147 of Geneva Convention IV. A
state is precluded from absolving other states from liability on the ground that the
individual persons who actually perpetrated the grave breach of the convention
have already been punished. Indeed, it would seem unjust for individuals to be
punished while the state in whose name or on whose instructions they acted is
released from all liability. Article 148 was meant to prevent the defeated state from
being forced into entering into an armistice or peace treaty in which it would
renounce all reparations for grave breaches committed by persons in the service of
the victorious state. Thus, pursuant to the 1949 Geneva Conventions, a state
remains responsible — and continues to be liable to pay compensation — for the
grave breaches committed against protected persons.
599
Same; Same; Same; View that I vote to dismiss the petition for failure to
establish that respondents committed grave abuse of discretion in declining to
espouse the claims of petitioners.—In the light of the foregoing context, I vote to
dismiss the petition for failure to establish that respondents committed grave
abuse of discretion in declining to espouse the claims of petitioners. The dismissal
thereof should not, however, be taken as a definitive ruling on the merits of the
claims of petitioners, in the event that they bring the same to an appropriate forum
or through a proper recourse. Neither should it be taken to mean that we should
forget the suffering that our people, especially petitioners, bore in the Second
World War, or the unfortunate story of our attempts to get the reparation that was
due us, and learn. From such understanding, we must forge the elements that will
make the Philippine state strong, able to protect its people and safeguard their
well-being under the aegis of the Constitution. Justice demands no less.
MOTION FOR RECONSIDERATION and SUPPLEMENTAL MOTION FOR
RECONSIDERATION of a decision of the Supreme Court.
The facts are stated in the resolution of the Court.
Roque & Butuyan Law Offices for petitioners.
The Solicitor General for respondents.
RESOLUTION
BERSAMIN, J.:
 Petitioners filed a Motion for Reconsideration1 and a Supplemental Motion for
Reconsideration,2 praying that the Court reverse its decision of April 28, 2010, and
grant their petition for certiorari.
In their Motion for Reconsideration, petitioners argue that our constitutional
and jurisprudential histories have rejected
_______________
1 Rollo, pp. 419-429.
2 Id., at pp. 435-529.
600the Court’s ruling that the foreign policy prerogatives of the Executive Branch
are unlimited; that under the relevant jurisprudence and constitutional provisions,
such prerogatives are proscribed by international human rights and international
conventions of which the Philippines is a party; that the Court, in holding that the
Chief Executive has the prerogative whether to bring petitioners’ claims against
Japan, has read the foreign policy powers of the Office of the President in isolation
from the rest of the constitutional protections that expressly textualize
international human rights; that the foreign policy prerogatives are subject to
obligations to promote international humanitarian law as incorporated into the
laws of the land through the Incorporation Clause; that the Court must revisit its
decisions in Yamashita v. Styer3 and Kuroda v. Jalandoni4 which have been noted
for their prescient articulation of the import of laws of humanity; that in said
decision, the Court ruled that the State was bound to observe the laws of war and
humanity; that in Yamashita, the Court expressly recognized rape as an
international crime under international humanitarian law, and in Jalandoni, the
Court declared that even if the Philippines had not acceded or signed the Hague
Convention on Rules and Regulations covering Land Warfare, the Rules and
Regulations formed part of the law of the nation by virtue of the Incorporation
Clause; that such commitment to the laws of war and humanity has been
enshrined in Section 2, Article II of the 1987 Constitution, which provides “that
the Philippines…adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.”
The petitioners added that the status and applicability of the generally
accepted principles of international law within the Philippine jurisdiction would
be uncertain without the
_______________
3 75 Phil. 563 (1945).
4 83 Phil. 171 (1949).
601Incorporation Clause, and that the clause implied that the general
international law forms part of Philippine law only insofar as they are expressly
adopted; that in its rulings in The Holy See, v. Rosario, Jr.5 and U.S. v. Guinto6 the
Court has said that international law is deemed part of the Philippine law as a
consequence of Statehood; that in Agustin v. Edu,7 the Court has declared that a
treaty, though not yet ratified by the Philippines, was part of the law of the land
through the Incorporation Clause; that by virtue of the Incorporation Clause, the
Philippines is bound to abide by the erga omnes obligations arising from the jus
cogens norms embodied in the laws of war and humanity that include the principle
of the imprescriptibility of war crimes; that the crimes committed against
petitioners are proscribed under international human rights law as there were
undeniable violations of jus cogens norms; that the need to punish crimes against
the laws of humanity has long become jus cogens norms, and that international
legal obligations prevail over national legal norms; that the Court’s invocation of
the political doctrine in the instant case is misplaced; and that the Chief Executive
has the constitutional duty to afford redress and to give justice to the victims of
the comfort women system in the Philippines.8
Petitioners further argue that the Court has confused diplomatic protection
with the broader responsibility of states to protect the human rights of their
citizens, especially where the rights asserted are subject of erga omnes obligations
and pertain to jus cogensnorms; that the claims raised by petitioners are not
simple private claims that are the usual subject of diplomatic protection; that the
crimes committed against petitioners are shocking to the conscience of humanity;
and that the atrocities committed by the Japanese
_______________
5 G.R. No. 101949, December 1, 1994, 238 SCRA 524.
6 G.R. No. 76607, February 26, 1990, 182 SCRA 644.
7 No. L-49112, February 2, 1979, 88 SCRA 195.
8 Supra note 1.
602soldiers against petitioners are not subject to the statute of limitations under
international law.9
Petitioners pray that the Court reconsider its April 28, 2010 decision, and
declare: (1) that the rapes, sexual slavery, torture and other forms of sexual
violence committed against the Filipina comfort women are crimes against
humanity and war crimes under customary international law; (2) that the
Philippines is not bound by the Treaty of Peace with Japan, insofar as the waiver
of the claims of the Filipina comfort women against Japan is concerned; (3) that
the Secretary of Foreign Affairs and the Executive Secretary committed grave
abuse of discretion in refusing to espouse the claims of Filipina comfort women;
and (4) that petitioners are entitled to the issuance of a writ of preliminary
injunction against the respondents.
Petitioners also pray that the Court order the Secretary of Foreign Affairs and
the Executive Secretary to espouse the claims of Filipina comfort women for an
official apology, legal compensation and other forms of reparation from Japan. 10
In their Supplemental Motion for Reconsideration, petitioners stress that it
was highly improper for the April 28, 2010 decision to lift commentaries from at
least three sources without proper attribution — an article published in 2009 in
the Yale Law Journal of International Law; a book published by the Cambridge
University Press in 2005; and an article published in 2006 in the Western Reserve
Journal of International Law — and make it appear that such commentaries
supported its arguments for dismissing the petition, when in truth the plagiarized
sources even made a strong case in favour of petitioners’ claims.11
_______________
9 Id., at pp. 426-427.
10 Id., at pp. 427-428.
11 Id., at p. 436.
603 In their Comment,12 respondents disagree with petitioners,
maintaining that aside from the statements on plagiarism, the arguments raised
by petitioners merely rehashed those made in their June 7, 2005 Memorandum;
that they already refuted such arguments in their Memorandum of June 6, 2005
that the Court resolved through its April 28, 2010 decision, specifically as follows:
 1. The contentions pertaining to the alleged plagiarism were then already
lodged with the Committee on Ethics and Ethical Standards of the Court; hence,
the matter of alleged plagiarism should not be discussed or resolved herein. 13
2. A writ of certiorari did not lie in the absence of grave abuse of discretion
amounting to lack or excess of jurisdiction. Hence, in view of the failure of
petitioners to show any arbitrary or despotic act on the part of respondents, the
relief of the writ of certiorari was not warranted.14
3. Respondents hold that the Waiver Clause in the Treaty of Peace with
Japan, being valid, bound the Republic of the Philippines pursuant to the
international law principle of pacta sunt servanda. The validity of the Treaty of
Peace was the result of the ratification by two mutually consenting parties.
Consequently, the obligations embodied in the Treaty of Peace must be carried out
in accordance with the common and real intention of the parties at the time the
treaty was concluded.15
4. Respondents assert that individuals did not have direct international
remedies against any State that violated their human rights except
_______________
12 Id., at pp. 665-709.
13 Id., at pp. 684-685.
14 Id., at pp. 686-690.
15 Id., at pp. 690-702.
604where such remedies are provided by an international agreement. Herein,
neither of the Treaty of Peace and the Reparations Agreement, the relevant
agreements affecting herein petitioners, provided for the reparation of petitioners’
claims. Respondents aver that the formal apology by the Government of Japan and
the reparation the Government of Japan has provided through the Asian Women’s
Fund (AWF) are sufficient to recompense petitioners on their claims, specifically:
a. About 700 million yen would be paid from the national treasury over the
next 10 years as welfare and medical services;
b. Instead of paying the money directly to the former comfort women, the
services would be provided through organizations delegated by governmental
bodies in the recipient countries (i.e., the Philippines, the Republic of Korea, and
Taiwan); and
c. Compensation would consist of assistance for nursing services (like home
helpers), housing, environmental development, medical expenses, and medical
goods.16
Ruling
The Court DENIES the Motion for Reconsideration and Supplemental Motion
for Reconsideration for being devoid of merit.
1.
Petitioners did not show that their resort
was timely under the Rules of Court.
Petitioners did not show that their bringing of the special civil action
for certiorari was timely, i.e., within the 60-day
_______________
16 Id., at pp. 703-706.
605period provided in Section 4, Rule 65 of the Rules of Court, to wit:
Section 4. When and where position filed.—The petition shall be filed not
later than sixty (60) days from notice of judgment, order or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the sixty (60)-day period shall be counted from notice of the denial
of said motion.
As the rule indicates, the 60-day period starts to run from the date petitioner
receives the assailed judgment, final order or resolution, or the denial of the motion
for reconsideration or new trial timely filed, whether such motion is required or
not. To establish the timeliness of the petition for certiorari, the date of receipt of
the assailed judgment, final order or resolution or the denial of the motion for
reconsideration or new trial must be stated in the petition; otherwise, the petition
for certiorari must be dismissed. The importance of the dates cannot be
understated, for such dates determine the timeliness of the filing of the petition
for certiorari. As the Court has emphasized in Tambong v. R. Jorge Development
Corporation:17
There are three essential dates that must be stated in a petition
for certiorari brought under Rule 65. First, the date when notice of the judgment
or final order or resolution was received; second, when a motion for new trial or
reconsideration was filed; and third, when notice of the denial thereof was
received. Failure of petitioner to comply with this requirement shall be
sufficient ground for the dismissal of the petition. Substantial compliance
will not suffice in a matter involving strict observance with the Rules.
(Emphasis supplied)
_______________
17 G.R. No. 146068, August 31, 2006, 500 SCRA 399, 403-404.
606
The Court has further said in Santos v. Court of Appeals:18
The requirement of setting forth the three (3) dates in a petition
for certiorari under Rule 65 is for the purpose of determining its timeliness. Such
a petition is required to be filed not later than sixty (60) days from notice of the
judgment, order or Resolution sought to be assailed. Therefore, that the petition
for certiorari was filed forty-one (41) days from receipt of the denial of the motion
for reconsideration is hardly relevant. The Court of Appeals was not in any position
to determine when this period commenced to run and whether the motion for
reconsideration itself was filed on time since the material dates were not stated. It
should not be assumed that in no event would the motion be filed later than fifteen
(15) days. Technical rules of procedure are not designed to frustrate the ends of
justice. These are provided to effect the proper and orderly disposition of cases and
thus effectively prevent the clogging of court dockets. Utter disregard of the Rules
cannot justly be rationalized by harking on the policy of liberal construction.19
The petition for certiorari contains the following averments, viz.:
82. Since 1998, petitioners and other victims of the “comfort women system,”
approached the Executive Department through the Department of Justice in order
to request for assistance to file a claim against the Japanese officials and military
officers who ordered the establishment of the “comfort women” stations in the
Philippines;
83. Officials of the Executive Department ignored their request and refused
to file a claim against the said Japanese officials and military officers;
_______________
18 G.R. No. 141947, July 5, 2001, 360 SCRA 521, 527-528.
19 Id.
 607
84. Undaunted, the Petitioners in turn approached the Department of
Foreign Affairs, Department of Justice and Office of the of the Solicitor General to
file their claim against the responsible Japanese officials and military officers, but
their efforts were similarly and carelessly disregarded.20
The petition thus mentions the year 1998 only as the time when petitioners
approached the Department of Justice for assistance, but does not specifically state
when they received the denial of their request for assistance by the Executive
Department of the Government. This alone warranted the outright dismissal of
the petition.
Even assuming that petitioners received the notice of the denial of their
request for assistance in 1998, their filing of the petition only on March 8, 2004
was still way beyond the 60-day period. Only the most compelling reasons could
justify the Court’s acts of disregarding and lifting the strictures of the rule on the
period. As we pointed out in MTM Garment Mfg., Inc. v. Court of Appeals:21
All these do not mean, however, that procedural rules are to be ignored or
disdained at will to suit the convenience of a party. Procedural law has its own
rationale in the orderly administration of justice, namely: to ensure the effective
enforcement of substantive rights by providing for a system that obviates
arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes.
Hence, it is a mistake to suppose that substantive law and procedural law are
contradictory to each other, or as often suggested, that enforcement of procedural
rules should never be permitted if it would result in prejudice to the substantive
rights of the litigants.
As we have repeatedly stressed, the right to file a special civil action
of certiorari is neither a natural right
_______________
20 Rollo, p. 18.
21 G.R. No. 152336, June 9, 2005, 460 SCRA 55, 66.
608nor an essential element of due process; a writ of certiorari is a
prerogative writ, never demandable as a matter of right, and never issued
except in the exercise of judicial discretion. Hence, he who seeks a writ
of certiorari must apply for it only in the manner and strictly in
accordance with the provisions of the law and the Rules.
Herein petitioners have not shown any compelling reason for us to relax the
rule and the requirements under current jurisprudence. x x x. (Emphasis supplied)
2.
Petitioners did not show that the assailed act
was either judicial or quasi-judicial
on the part of respondents.
Petitioners were required to show in their petition for certiorarithat the
assailed act was either judicial or quasi-judicial in character. Section 1, Rule 65 of
the Rules of Court requires such showing, to wit:
Section 1. Petition for certiorari.—When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess of its
or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true copy of the judgment,
order, or resolution subject thereof, copies of all pleadings and documents relevant
and pertinent thereto, and a sworn certification of nonforum shopping as provided
in the third paragraph of Section 3, Rule 46.
609
However, petitioners did not make such a showing.
3.
Petitioners were not entitled
to the injunction.
The Court cannot grant petitioners’ prayer for the writ of preliminary
mandatory injunction.
Preliminary injunction is merely a provisional remedy that is adjunct to the
main case, and is subject to the latter’s outcome. It is not a cause of action itself. 22 It
is provisional because it constitutes a temporary measure availed of during the
pendency of the action; and it is ancillary because it is a mere incident in and is
dependent upon the result of the main action.23 Following the dismissal of the
petition for certiorari, there is no more legal basis to issue the writ of injunction
sought. As an auxiliary remedy, the writ of preliminary mandatory injunction
cannot be issued independently of the principal action.24
In any event, a mandatory injunction requires the performance of a particular
act. Hence, it is an extreme remedy,25 to be granted only if the following requisites
are attendant, namely:
(a) The applicant has a clear and unmistakable right, that is, a right in esse;
(b) There is a material and substantial invasion of such right; and
_______________
22 Buyco v. Baraquia, G.R. No. 177486, December 21, 2009, 608 SCRA 699,
703-704.
23 Id., at p. 704.
24 Bangko Sentral ng Pilipinas Monetary Board v. Antonio-Valenzuela, G.R.
No. 184778, October 2, 2009, 602 SCRA 698, 715, citing Lim v. Court of Appeals,
G.R. No. 134617, February 13, 2006, 482 SCRA 326, 331.
25 Regalado, Remedial Law Compendium, Vol. I, p. 638, Seventh Revised
Edition.
610
(c) There is an urgent need for the writ to prevent irreparable injury to the
applicant; and no other ordinary, speedy, and adequate remedy exists to prevent
the infliction of irreparable injury.26
In Marquez v. The Presiding Judge (Hon. Ismael B. Sanchez), RTC Br. 58,
Lucena City,27 we expounded as follows:
It is basic that the issuance of a writ of preliminary injunction is addressed to
the sound discretion of the trial court, conditioned on the existence of a clear and
positive right of the applicant which should be protected. It is an extraordinary,
peremptory remedy available only on the grounds expressly provided by law,
specifically Section 3, Rule 58 of the Rules of Court. Moreover, extreme caution
must be observed in the exercise of such discretion. It should be granted only when
the court is fully satisfied that the law permits it and the emergency demands it.
The very foundation of the jurisdiction to issue a writ of injunction rests in the
existence of a cause of action and in the probability of irreparable injury,
inadequacy of pecuniary compensation, and the prevention of multiplicity of suits.
Where facts are not shown to bring the case within these conditions, the relief of
injunction should be refused.28
Here, the Constitution has entrusted to the Executive Department the
conduct of foreign relations for the Philippines. Whether or not to espouse
petitioners’ claim against the Government of Japan is left to the exclusive
determination and judgment of the Executive Department. The Court cannot
interfere with or question the wisdom of the conduct of foreign relations by the
Executive Department. Accordingly,
26 Philippine Leisure and Retirement Authority v. Court of Appeals, G.R. No.
156303, December 19, 2007, 541 SCRA 85, 99-100.
27 G.R. No. 141849, February 13, 2007, 515 SCRA 577.
28 Id., at p. 589.
611we cannot direct the Executive Department, either by writ of certiorari or
injunction, to conduct our foreign relations with Japan in a certain manner.
WHEREFORE, the Court DENIES the Motion for
Reconsideration and Supplemental Motion for Reconsideration for their lack of
merit.
SO ORDERED.
Sereno (CJ.), Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,
Villarama, Jr., Perez, Mendoza, Reyes and Perlas-Bernabe, JJ., concur.
Del Castillo, J., No part.
Leonen, J., No part.
CONCURRING OPINION
SERENO, CJ.:
[T]he phrase “comfort women” does not in the least reflect the suffering,
such as multiple rapes on an everyday basis and severe physical abuse, that
women victims had to endure during their forced prostitution and sexual
subjugation and abuse in wartime. The Special Rapporteur, therefore,
considers with conviction that the phrase “military sexual slaves” represents
a much more accurate and appropriate terminology.1
Ms. Radhika Coomaraswamy
Special Rapporteur on
Violence Against Women
_______________
1 Special Rapporteur on Violence Against Women, its Causes and
Consequences, Rep. on the Mission to the Democratic People’s Republic of Korea,
the Republic of Korea and Japan on the Issue of Military Sexual Slavery in
Wartime, Comm’n. on Human Rights, UN Doc. E/CN.4/1996/53/Add.l, at 4 (4
January 1996)(by Radhika Coomaraswamy).
612
This Petition is a reminder to all public officials of the trust the Filipino people
have reposed in them to ensure their well-being, address their sufferings, and
promote the rule of law within the national and international sphere. 2 Our history
as a nation and our brutal experiences at the hands of colonialists and
authoritarians have impelled us to ensure, through the Constitution, that every
Filipino will attain justice and will be guaranteed full respect for human
rights.3 This is one of the core duties imposed by our organic law on public officials.
Nevertheless, I concur with the Resolution holding that there is basis to
dismiss the petition on various technical grounds. I also fully agree with this
Court’s Decision4 dated 28 April 2010, which ruled that the matter of exercising
diplomatic protection is within the sphere of discretion of the executive
department.
I am of the opinion, however, that the statement in the 2010 ponencia —
that the “wisdom of such decision [to waive all claims for reparations] is
not for the courts to question”5 — must be qualified. As party to the 1949
Geneva Conventions,6 the Philippines has limited discretion
_______________
2 See: E.O. 292–Administrative Code of the Philippines, Book IV, Title III,
Chap. 12, Sec. 34, pars. 10 & 11.
3 Constitution, Art. II, Sec. 11; Art. XIII, Secs. 1 & 18(3).
4 Vinuya v. Romulo, G.R. No. 162230, 28 April 2010, 619 SCRA 533.
5 Id., at p. 560.
6 Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31 (hereinafter
“Geneva Convention I”); Geneva Convention for the Amelioration of the Condition
of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12
August 1949, 75 U.N.T.S. 85 (hereinafter “Geneva Convention II”); Geneva
Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75
U.N.T.S. 135 (hereinafter “Geneva Convention III”); and Geneva Convention
Relative to the Protection of Civilian
613to waive another state’s reparations obligation arising from the commission of
grave breaches of the convention. The 1949 Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (Geneva Convention IV) expressly
states the following:
ARTICLE 147
Grave breaches to which the preceding Article relates shall be
those involving any of the following acts, if committed against persons or
property protected by the present Convention: wilful killing, torture or
inhuman treatment, including biological experiments, wilfully causing great
suffering or serious injury to body or health, unlawful deportation or transfer
or unlawful confinement of a protected person, compelling a protected person
to serve in the forces of a hostile Power, or wilfully depriving a protected person of
the rights of fair and regular trial prescribed in the present Convention, taking of
hostages and extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly.
ARTICLE 148
No High Contracting Party shall be allowed to absolve itself or any
other High Contracting Party of any liability incurred by itself or by
another High Contracting Party in respect of breaches referred to in the
preceding Article. (Emphases supplied)
_______________
Persons in Time of War, 12 August 1949, 75 U.N.T.S. 287 (hereinafter Geneva
“Convention IV”).
614
Legal commentators stress that Article 148 should be related to Article 3 of the
1907 Hague Convention IV,7 which reads:
A belligerent Party which violates the provisions of the said Regulations
shall, if the case demands, be liable to pay compensation. It shall
be responsible for all acts committed by persons forming part of its armed
forces. (Emphases supplied)
It is said that the non-absolution clause under Article 148 is a logical
consequence of the grave breaches under Article 147 of Geneva Convention IV. 8 A
state is precluded from absolving other states from liability on the ground that the
individual persons who actually perpetrated the grave breach of the convention
have already been punished.9 Indeed, it would seem unjust for individuals to be
punished while the state in whose name or on whose instructions they acted is
released from all liability.10 Article 148 was meant to prevent the defeated state
from being forced into entering into an armistice or peace treaty in which it would
renounce all reparations for grave breaches committed by persons in the service of
the victorious state.11 Thus, pursuant to the 1949 Geneva Conventions, a state
remains responsible — and continues to be liable to pay compensation — for the
grave breaches committed against protected persons.12
Nevertheless, I am of the opinion that respondents cannot be found entirely
guilty of a whimsical or capricious exercise of judgment, or a patent and gross
abuse of discretion. Their
_______________
7 Oscar M. Uhler & Henri Coursier, Commentary: Geneva Convention Relative to the Projection of Civilian Persons
in Time of War IV, pp. 602-603 (Jean S. Pictet ed., 1958).
8 Id.
9 Id.
10 Id.
11 Id.
12 Id.
615reliance on the Treaty of Peace with Japan (1951 Peace Treaty) and the
Reparations Agreement Between the Republic of the Philippines and Japan (1956
Reparations Agreement) as bases for declining to espouse petitioners’ claims
against Japan was not without reason, especially if the treaties are analyzed in
the light of the events leading to their conclusion.
The subject of reparations for damages suffered during the war was discussed
during the occupation of Japan by the Allied Forces. At the time, the initial
reparations policy that had been put forward by the U.S. was to utilize reparations
for rehabilitating the war-devastated countries, particularly countries in Asia and
the Pacific.13The plan was also envisioned as a “vital integral means” for Japan’s
economic demilitarization.14 The U.S. supported an “early and just share of
reparations” in favor of the Philippines and pledged that “Japan will be reduced to
the level of a small power and her people will not be permitted to have in the future
a living standard higher than those nations which she has overrun x x x.”15 It is
said that an interim reparations removal policy was also adopted with the objective
of transferring the industrial capacity of Japan to the Philippines.16 Under this
policy, Japan’s industrial plants and facilities would be handed over to the
Philippines as war reparations in order to aid its rehabilitation and agricultural
development needs.17
_______________
13 Takushi Ohno, War Reparations & Peace Settlement: Philippines-Japan
Relations 1945-1956, p. 8 (1986); Yang Zhihui, From War Reparation to Postwar
Reparation (Louisa Rubinfien trans.), in Toward a History Beyond Borders:
Contentious Issues in Sino-Japanese Relations, pp. 374-375 (Daqing Yang, Jie Liu,
Hiroshi Mitani & Andrew Gordon eds., 2012).
14 OHNO, id.
15 OHNO, id., at p. 19.
16 OHNO, id., at p. 11.
17 OHNO, id.; Yang Zhihui, supra.
616However, due to the opposition of the former Soviet Union, the proposals did
not materialize.18
American reparations policy shifted in 1947.19 As the Cold War developed, the
U.S. initiated the drafting of a peace treaty with Japan. 20 On the issue of
reparations, the U.S. negotiated for a complete waiver of all claims arising from
Japan’s war acts.21 The alleged rationale for this “peace formula” rested on the
U.S. assumption that if Japan were to be lured into the communist influence, the
strength of the Sino-Soviet camp would significantly increase, and the resulting
change in the power balance in Asia would be “dangerously
formidable.”22 According to the U.S., Japan must be given a chance to recover full
economic self-sufficiency “by not placing upon her any heavy economic or financial
burdens or major commercial liabilities.”23 The peace treaty was to be “brief,
liberal, and nonpunitive.”24
_______________
18 OHNO, id., at p. 13.
19 OHNO, id., at pp. 18-26; John F. Dulles, a Peace Treaty in the Making
(Addresses and Remarks Regarding the Making of the Japanese Peace Treaty and
the Cause of World freedom) pp. 3-7 (1951); Yang Zhihui, supra note 13 at pp. 375-
377.
20 OHNO, id., at p. 36.
21 OHNO, id., at pp. 37-38 (citing United States Memorandum to the
Government on the Far Eastern Commission, in Royal Institute of International
Affairs, Documents on International Affairs, 1947-1949, pp. 615-616 [1952]); Yang
Zhihui,id., at p. 376.
22 OHNO, id., at p. 38; See also Dulles, supra at pp. 40-42; Yang Zhihui, id.
23 OHNO, id., at p. 37 (citing John Foster Dulles, “Peace May Be Won,” U.S.A.
Department of State, DSB, Vol. 24 No. 605, at p. 255 [1951]); See Dulles, id., at pp.
19-21.
24 OHNO, id. (citing U.S.A., Department of State, “An Estimate of Conditions
in Asia and the Pacific at the Close of the War in the Far East and the Objectives
and Policies of the United States,” Diplomatic Papers, Vol. VI, pp. 556-580, 1945
[1969]); See Dulles, id.
617 The Philippines rejected the U.S. proposal of total waiver of reparations
claims against Japan.25 While the Philippine government had full appreciation of
the international political reality of the spread of communism in Asia, 26 it
remained firm that Japan should “sufficiently x x x repair the injuries they
inflicted in a war of aggression x x x.”27 The U.S. tried to persuade the Philippine
government. It pointed out that the problem of reparations was “not merely a
matter of justice,” but also a “matter of economics.”28 It argued that they could not
see “any effective way” of demanding reparations from an economically depressed
Japan.29 In a last effort to convince the Philippines to accept a no-reparations
peace arrangement, the U.S. emphasized the usually “intimate” relations between
both countries.30
The U.S. was unsuccessful; the Philippines maintained an irrevocable stance
on the matter of reparations.31 Former Undersecretary of Foreign Affairs Felino
Neri criticized the American peace policy and remarked: “Reparations is first a
matter of justice and the realities of economics are, in our view, a secondary
consideration. In our case, reparations from Japan is a matter of absolute
necessity.”32 The Philippines’ condemnation of the American peace formula
intensified when the U.S. government made available its draft of the
_______________
25 OHNO, id., at p. 40; Yang Zhihui, supra note 13 at p. 376.
26 OHNO, id., at p. 39.
27 OHNO, id., at p. 40 (citing The President’s Inaugural Address, December
30, 1949, Official Gazette, Vol. 45, No. 12, at p. 5384 [1949]).
28 OHNO, id., at p. 42 (citing Truman’s Envoy has long conference on Jap pact
with EQ, the Manila Times, February 12, 1951, pp. 1-2).
29 OHNO, id.
30 Id.
31 Id., at pp. 42-43; See also Dulles, supra note 19 at p. 48; Yang
Zhihui, supra at p. 376.
32 OHNO, id., at p. 43 (citing Neri assails Dulles stand, the Manila Times, 3
March 1951, pp. 1, 12).
618treaty, which provided for the absolute abandonment of reparations claims on
the ground that Japan lacked the “capacity to make payments” in any form.33 The
Philippines refused such claims.34 It repeatedly declared that Japan was solvent,
and that the Philippines would never withdraw its claims.35
At the height of the developing Cold War, the U.S. and the U.K. initiated a
conference on the Japanese peace treaty.36 During the discussions, the Philippines,
through then Foreign Affairs Secretary Carlos P. Romulo, expressed that it had
yet to be satisfied with the reparations provisions of the proposed
treaty.37 Secretary Romulo voiced out a reservation on an “inflexible restriction”
on the form of reparations payment, asserting that the Philippines could not accept
that reparations be made only through the “services” of the Japanese people in the
processing of raw materials that would be supplied by the injured
countries.38 However, the reservation was neither accepted nor recorded.39 Faced
with the dilemma of supporting its allies in winning over Japan at the expense of
fully satisfying security and reparations claims, the Philippines reluctantly signed
the 1951 Peace Treaty.40
The decision of the Philippine government to eventually sign the peace treaty
was met with strong resistance. The opposition insisted that the reparations issue
was the fore-
_______________
33 Id.; See also Dulles, supra note 19 at p. 48.
34 OHNO, id.
35 Id.
36 Id., at p. 52.
37 Id., at p. 54.
38 Id.
39 Id., at pp. 54-55 (citing Acheson’s Speech, delivered on September 8, 1951,
in U.S. Dep’t of State Publications, Record of Proceedings of the Conference for the
Conclusion and Signature of the Treaty of Peace with Japan, pp. 175-177 [1951]).
40 Id., at pp. 55-56.
619most aspect of the country’s peace settlement with Japan.41 They also
demanded the inclusion in the peace treaty of a more categorical statement of
Japan’s guilt and reparations obligation.42The government defended its decision to
sign the peace treaty on the basis of its “security first policy.” 43 It explained that
security threats of the aggressive communist expansion impelled it to act swiftly
in the ratification of the peace treaty.44 The opposition countered that the
Philippines was sufficiently safeguarded by its Mutual Defense Treaty with the
U.S.45
The negotiations for reparations dragged on for almost five years after the
signing of the 1951 Peace Treaty.46 From the initial demand of USD8 billion, the
final reparations agreed upon amounted to a mere USD550 million,47 which was
to be paid in the form of capital goods, cash, and services. 48 A note sent by
President Magsaysay to the Senate reads as follows:
Considering the losses and suffering the Philippines sustained as a result of
the Pacific War, these terms do not come up to the generally-accepted
concept of reparations as compensation for damage done and injury
suffered.
Judged, however, from the point of view of the requirements of our national
interest and viewed in the light of the practical realities posed by the political and
_______________
41 Id., at pp. 58, 80.
42 Id., at p. 58.
43 Id., at pp. 75-80.
44 Id.
45 Id., at p. 80.
46 Id., at pp. 64-134.
47 Id., at p. 121.
48 President’s Letter of Transmittal, reproduced in Philippine Senate,
Reparations Agreement, the Annex Thereto, the Exchange Notes and the Other
Supporting Documents: Treaty of Peace with Japan, Understanding of the Senate
on Certain Provisions of the Reparations Agreement, p. 3 (1956).
620economic situation obtaining in both countries as well as in their part of the
world, I subscribe to the conclusion reached by the Philippine Panel of Negotiators
that this settlement is the best that can be obtained under the
circumstances x x x.49
After a heated debate, the 1951 Peace Treaty and the 1956 Reparations
Agreement were ratified on 16 July 1956. The pertinent provision of the 1951
Peace Treaty is reproduced below:
ARTICLE 14
(a) It is recognized that Japan should pay reparations to the Allied
Powers for the damage and suffering caused by it during the war.
Nevertheless it is also recognized that the resources of Japan are not
presently sufficient if it is to maintain a viable economy, to make
complete reparations for all such damage and suffering and at the same time
meet its other obligations.
Therefore,
1. Japan will promptly enter into negotiations with Allied Powers so
desiring, whose present territories were occupied by Japanese forces and
damaged by Japan, with a view to assisting to compensate those
countries for the cost of repairing the damage done, by making
available the services of the Japanese people in production, salvaging
and other work for the Allied Powers in question. Such arrangements
shall avoid the imposition of additional liabilities on other Allied Powers, and,
where the manufacturing of raw materials is called for, they shall be supplied
by the
_______________
49 Id., at p. 4.
621Allied Powers in question, so as not to throw any foreign exchange burden
upon Japan.
2. x x x x
(b) Except as otherwise provided in the present Treaty, the Allied Powers
waive all reparation claims of the Allied Powers, other claims of the Allied
Powers and their nationals arising out of any actions taken by Japan and
nationals in the course of the prosecution of the war, and claims of the
Allied Powers for direct military costs of occupation. (Emphases supplied)
On the other hand, the relevant provisions of the 1956 Reparations
Agreement are quoted as follows:
ARTICLE 1
Japan, by way of reparations, shall supply the Republic of
the Philippines with the services of the Japanese people and the products
of Japan in the form of capital goods, the total value of which will be so much
in yen as shall be equivalent to five hundred fifty million United States dollars
($550,000,000) at present computed at one hundred ninety-eight billion yen
(Y198,000,000,000), within the period and in the manner hereinafter prescribed.
ARTICLE 2
The supply of the services and products referred to in the preceding Article
shall be made on an annual average of so much in yen as shall be equivalent to
twenty-five million United States dollars ($25,000,000) at present computed at
nine billion yen (Y9,000,000,000), during the ten-year period from the date of
coming into force of the present Agreement; and on an annual average of so much
in yen as shall be equivalent to thirty million United States dollars ($30,000,000)
at present computed at ten billion eight hundred million yen (Y10,800,000,000),
during the succeeding ten-year period. However, by
622agreement between the two Governments, this latter period may be reduced
to a period shorter than ten years, provided the outstanding balance is settled in
full within the remainder of the reduced period.
ARTICLE 6
1. In the discharge of the reparations obligation under Article 1 of the present
Agreement, the Government of Japan shall, through procedures to be determined
under Article 11, make payments to cover the obligations incurred by the Mission
under Reparations Contracts and the expenses for the supply of services and
products referred to in Article 5, paragraph 4 of the present Agreement. These
payments shall be made in Japanese yen.
2. By and upon making a payment in yen under the preceding
paragraph, Japan shall be deemed to have supplied the Republic of the
Philippines with the services and products thus paid for and shall be
released from its reparations obligation to the extent of the equivalent value
in United States dollars of such yen payment in accordance with Articles 1 and 2
of the present Agreement. (Emphases supplied)
In the light of the foregoing context, I vote to dismiss the petition for failure
to establish that respondents committed grave abuse of discretion in declining to
espouse the claims of petitioners. The dismissal thereof should not, however, be
taken as a definitive ruling on the merits of the claims of petitioners, in the event
that they bring the same to an appropriate forum or through a proper recourse.
Neither should it be taken to mean that we should forget the suffering that our
people, especially petitioners, bore in the Second World War, or the unfortunate
story of our attempts to get the reparation that was due us, and learn. From such
understanding, we must forge the elements that will make the Philippine state
strong, able to protect its people and safeguard their well-being under the aegis of
the Constitution. Justice demands no less.
623
Motion for Reconsideration and Supplemental Motion for Reconsideration
denied.
Notes.—It is worth stressing that the assessment and evaluation of evidence
in the issuance of the writ of preliminary injunction involves findings of facts
ordinarily left to the trial court for its conclusive determination. (Dela Rosa vs.
Heirs of Juan Valdez, 654 SCRA 467 [2011])
A preliminary mandatory injunction is more cautiously regarded than a mere
prohibitive injunction since, more than its function of preserving the status
quo between the parties, it also commands the performance of an act. (Id.)
——o0o——
G.R. No. 212426. January 12, 2016.*
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO “DODONG”
NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A. AGABIN,
ESTEBAN “STEVE” SALONGA, H. HARRY L. ROQUE, JR., EVALYN G.
URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-ARAULLO, DR. ROLAND
SIMBULAN, and TEDDY CASIÑO, petitioners, vs. EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., DEPARTMENT OF NATIONAL DEFENSE
SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN AFFAIRS
SECRETARY ALBERT DEL ROSARIO, JR., DEPARTMENT OF BUDGET AND
MANAGEMENT SECRETARY FLORENCIO ABAD, and ARMED FORCES OF
THE PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA,
respondents.
G.R. No. 212444. January 12, 2016.*
BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by its
SECRETARY GENERAL RENATO M. REYES, JR., BAYAN MUNA PARTY-LIST
REPRESENTATIVES NERI J. COLMENARES and CARLOS ZARATE,
GABRIELA WOMEN’S PARTY-LIST REPRESENTATIVES LUZ ILAGAN and
EMERENCIANA DE JESUS, ACT TEACHERS PARTY-LIST
REPRESENTATIVE ANTONIO L. TINIO, ANAKPAWIS PARTY-LIST
REPRESENTATIVE FERNANDO HICAP, KABATAAN PARTY-LIST
REPRESENTATIVE TERRY RIDON, MAKABAYANG KOALISYON NG
MAMAMAYAN (MAKABAYAN), represented by SATURNINO OCAMPO and
LIZA MAZA, BIENVENIDO LUMBERA, JOEL C. LAMANGAN, RAFAEL
MARIANO, SALVADOR FRANCE, ROGELIO M. SOLUTA, and CLEMENTE G.
BAUTISTA, petitioners, vs. DEPARTMENT OF NATIONAL DEFENSE
_______________
* EN BANC.
242
242 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
(DND) SECRETARY VOLTAIRE GAZMIN, DEPARTMENT OF FOREIGN
AFFAIRS SECRETARY ALBERT DEL ROSARIO, EXECUTIVE SECRETARY
PAQUITO N. OCHOA, JR., ARMED FORCES OF THE PHILIPPINES CHIEF OF
STAFF GENERAL EMMANUEL T. BAUTISTA, DEFENSE
UNDERSECRETARY PIO LORENZO BATINO, AMBASSADOR LOURDES
YPARRAGUIRRE, AMBASSADOR J. EDUARDO MALAYA, DEPARTMENT OF
JUSTICE UNDERSECRETARY FRANCISCO BARAAN III, and DND
ASSISTANT SECRETARY FOR STRATEGIC ASSESSMENTS RAYMUND JOSE
QUILOP AS CHAIRPERSON AND MEMBERS, respectively, of the
NEGOTIATING PANEL FOR THE PHILIPPINES ON EDCA, respondents.
KILUSANG MAYO UNO, represented by its CHAIRPERSON, ELMER LABOG,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), represented by its NATIONAL
PRESIDENT FERDINAND GAITE, NATIONAL FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO, represented by its NATIONAL PRESIDENT
JOSELITO USTAREZ, NENITA GONZAGA, VIOLETA ESPIRITU, VIRGINIA
FLORES, and ARMANDO TEODORO, JR., petitioners-in-intervention.
RENE A.Q. SAGUISAG, JR., petitioner-in-intervention.
Judicial Review; Distinguished from the general notion of judicial power, the
power of judicial review specially refers to both the authority and the duty of the
Supreme Court (SC) to determine whether a branch or an instrumentality of
government has acted beyond the scope of the latter’s constitutional powers.—
Distinguished from the general notion of judicial power, the power of judicial
review specially refers to both the authority and the duty of this Court to determine
whether a branch or an instrumentality of government has acted beyond the scope
of the latter’s constitutional powers. 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,
243
VOL. 779, JANUARY 12, 2016 243
Saguisag vs. Ochoa, Jr.
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation. In Angara v. Electoral
Commission, 63 Phil. 139 (1936), this Court exhaustively discussed this
“moderating power” as part of the system of checks and balances under the
Constitution. In our fundamental law, the role of the Court is to determine whether
a branch of government has adhered to the specific restrictions and limitations of
the latter’s power.
Same; Demetria v. Alba, 148 SCRA 208 (1987) and Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., 415
SCRA 44 (2003), cite the “pillars” of the limitations on the power of judicial review
as enunciated in the concurring opinion of United States (U.S.) Supreme Court
Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-
348 (1936).—Even as we are left with no recourse but to bare our power to check
an act of a coequal branch of government — in this case the executive — we must
abide by the stringent requirements for the exercise of that power under the
Constitution. Demetria v. Alba, 148 SCRA 208 (1987) and Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., 415
SCRA 44 (2003), cite the “pillars” of the limitations on the power of judicial review
as enunciated in the concurring opinion of U.S. Supreme Court Justice Brandeis
in Ashwander v. Tennessee Valley Authority, 297 U.S. 288
(1936). Francisco redressed these “pillars” under the following categories: 1. That
there be absolute necessity of deciding a case; 2. That rules of constitutional
law shall be formulated only as required by the facts of the case; 3. That
judgment may not be sustained on some other ground; 4. That there
be actual injury sustained by the party by reason of the operation of the
statute; 5. That the parties are not in estoppel; 6. That the Court upholds
the presumption of constitutionality. (Emphases supplied) These are the
specific safeguards laid down by the Court when it exercises its power of judicial
review. Guided by these pillars, it may invoke the power only when the following
four stringent requirements are satisfied: (a) there is an actual case or controversy;
(b) petitioners possess locus standi; (c) the question of constitutionality is raised at
the earliest opportunity; and (d) the issue of constitutionality is the lis mota of the
case. Of these four, the first two conditions will be the focus of our discussion.
244
244 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Same; Actual Case or Controversy; 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.—We find that the
matter before us involves an actual case or controversy that is already ripe for
adjudication. The Executive Department has already sent an official confirmation
to the U.S. Embassy that “all internal requirements of the Philippines x x x have
already been complied with.” By this exchange of diplomatic notes, the Executive
Department effectively performed the last act required under Article XII(1) 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.
Same; Locus Standi; 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.—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. Here, “interest” in the question involved must be
material — an interest that is in issue and will be affected by the official act — as
distinguished from being merely incidental or general. Clearly, 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. The reason why those who challenge the validity of a law or an international
245
VOL. 779, JANUARY 12, 2016 245
Saguisag vs. Ochoa, Jr.
agreement are required to allege the existence of a personal stake in the
outcome of the controversy is “to assure the concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination
of difficult constitutional questions.”
Same; Same; Taxpayers’ Suit; The Supreme Court (SC) emphasizes that a
taxpayers’ suit contemplates a situation in which there is already an appropriation
or a disbursement of public funds. A reading of Article X(1) of Enhanced Defense
Cooperation Agreement (EDCA) would show that there has been neither an
appropriation nor an authorization of disbursement of funds.—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. Here, those challenging the
act must specifically show that they have sufficient interest in preventing the
illegal expenditure of public money, and that they will sustain a direct injury as a
result of the enforcement of the assailed act. Applying that principle to this case,
they must establish that EDCA involves the exercise by Congress of its taxing or
spending powers. We agree with the OSG that the petitions cannot qualify as
taxpayers’ suits. We emphasize that a taxpayers’ suit contemplates a situation in
which there is already an appropriation or a disbursement of public funds. A
reading of Article X(1) of EDCA would show that there has been neither an
appropriation nor an authorization of disbursement of funds.
Same; Same; Legislators’ Suit; 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.—We emphasize that 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 have the standing “to maintain inviolate the prerogatives,
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.” As legislators, they must clearly show that there was
a direct injury to their persons or the institution to which they belong.
246
246 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Constitutional Law; Treaties; Power to Concur in a Treaty; 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.—As
correctly argued by respondent, 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. In Pimentel, Jr. v. Office of the Executive
Secretary, 462 SCRA 622 (2005), this Court did not recognize the standing of one
of the petitioners therein who was a member of the House of Representatives. The
petition in that case sought to compel the transmission to the Senate for
concurrence of the signed text of the Statute of the International Criminal Court.
Since that petition invoked the power of the Senate to grant or withhold its
concurrence in a treaty entered into by the Executive Department, only then
incumbent Senator Pimentel was allowed to assert that authority of the Senate of
which he was a member.
 Same; Judicial Review; When those who challenge the official act are able to
craft an issue of transcendental significance to the people, the Supreme Court (SC)
may exercise its sound discretion and take cognizance of the suit.—In a number of
cases, this Court has indeed taken a liberal stance towards the requirement of
legal standing, especially when paramount interest is involved. Indeed, 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.
Executive Power; The duty to faithfully execute the laws of the land is inherent
in executive power and is intimately related to the other executive functions.—The
duty to faithfully execute the laws of the land is inherent in executive power and
is intimately related to the other executive functions. These functions include the
faithful execution of the law in autonomous regions; the right to prosecute crimes;
the implementation of transportation projects; the duty to ensure compliance with
treaties, executive agreements and executive orders; the authority to deport
undesirable aliens; the conferment of national awards under the President’s
jurisdiction; and the overall administration and control of the executive
department.
247
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Saguisag vs. Ochoa, Jr.
Same; Presidency; Foreign Military Bases; 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.—Despite the President’s roles as defender of the State
and sole authority in foreign relations, the 1987 Constitution expressly limits his
ability in instances when it involves the entry of foreign military bases, troops or
facilities. The initial limitation is found in Section 21 of the provisions on the
Executive Department: “No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of the
Senate.” The specific limitation is given by Section 25 of the Transitory Provisions,
the full text of which reads as follows: SECTION 25. After the expiration in 1991
of the Agreement between the Republic of the Philippines and the United States
of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by
the Senate and, when the Congress so requires, ratified by a majority of the votes
cast by the people in a national referendum held for that purpose, and recognized
as a treaty by the other contracting State.
Same; Same; Same; The President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines, except under a treaty
concurred in by the Senate.—To this Court, a plain textual reading of Article XIII,
Section 25, inevitably leads to the conclusion that it applies only to a proposed
agreement between our government and a foreign government, whereby military
bases, troops, or facilities of such foreign government would be “allowed” or would
“gain entry” Philippine territory. Note that the provision “shall not be allowed” is
a negative injunction. This wording signifies that the President is not authorized
by law to allow foreign military bases, troops, or facilities to enter the Philippines,
except under a treaty concurred in by the Senate. Hence, the constitutionally
restricted authority pertains to the entry of the bases, troops, or facilities, and not
to the activities to be done after entry.
Verba Legis; 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.—Under the principles of constitutional
construction, of paramount consideration is the plain meaning of the language
expressed in the Constitu-
248
248 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
tion, or the verba legis rule. It is presumed that the provisions have been
carefully crafted in order to express the objective it seeks to attain. It is incumbent
upon the Court to refrain from going beyond the plain meaning of the words used
in the Constitution. It is presumed that the framers and the people meant what
they said when they said it, and that this understanding was reflected in the
Constitution and understood by the people in the way it was meant to be
understood when the fundamental law was ordained and promulgated.
Foreign Military Bases; 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.—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.
Presidency; The President has the inherent power to enter into agreements
with other states, including the prerogative to conclude binding executive
agreements that do not require further Senate concurrence.—As the sole organ of
our foreign relations and the constitutionally assigned chief architect of our foreign
policy, the President is vested with the exclusive power to conduct and manage the
country’s interface with other states and governments. Being the principal
representative of the Philippines, the Chief Executive speaks and listens for the
nation; initiates, maintains, and develops diplomatic relations with other states
and governments; negotiates and enters into international agreements; promotes
trade, investments, tourism and other economic relations; and settles
international disputes with other states. As previously discussed, this
constitutional mandate emanates from the inherent power of the President to
enter into agreements with other states, including the prerogative to
conclude binding executive agreements that do not require further Senate
concurrence. The existence of this presidential power is so well-entrenched that
Section 5(2)(a), Article VIII of the Constitution, even provides for a check on its
exercise. As expressed
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Saguisag vs. Ochoa, Jr.
below, executive agreements are among those official governmental acts that
can be the subject of this Court’s power of judicial review: (2) Review, revise,
reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of lower courts in: (a)
All cases in which the constitutionality or
validity of any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
Executive Agreements; Words and Phrases; In Commissioner of Customs v.
Eastern Sea Trading, 3 SCRA 351 (1961), 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 Commissioner of Customs v. Eastern Sea
Trading, 3 SCRA 351 (1961), 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, 641 SCRA 244 (2011), this Court
further clarified that executive agreements can cover a wide array of subjects that
have various scopes and purposes. They are no longer limited to the traditional
subjects that are usually covered by executive agreements as identified in Eastern
Sea Trading.
Same; International Agreements; After noted constitutionalist Fr. Joaquin
Bernas quoted the Supreme Court’s (SC’s) ruling in Commissioner of Customs
v. Eastern Sea Trading, 3 SCRA 351 (1961), the Constitutional Commission
members ultimately decided that the term “international agreements” as
contemplated in Section 21, Article VII, does not include executive agreements, and
that a proviso is no longer needed.—One of the distinguishing features of executive
agreements is that their validity and effectivity are not affected by a lack of Senate
concurrence. This distinctive feature was recognized as early as in Eastern Sea
Trading (1961), viz.: 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. x x x x [T]he right of the
Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been con-
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firmed by long usage. From the earliest days of our history we have
entered into executive agreements covering such subjects as commercial and
consular relations, most-favored-nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and the settlement of
claims. The validity of these has never been seriously questioned by our
courts. (Emphases supplied) That notion was carried over to the present
Constitution. In fact, the framers specifically deliberated on whether the general
term “international agreement” included executive agreements, and whether it
was necessary to include an express proviso that would exclude executive
agreements from the requirement of Senate concurrence. After noted
constitutionalist Fr. Joaquin Bernas quoted the Court’s ruling in Eastern Sea
Trading, the Constitutional Commission members ultimately decided that the
term “international agreements” as contemplated in Section 21, Article VII, does
not include executive agreements, and that a proviso is no longer needed.
Same; Same; International practice has accepted the use of various forms and
designations of international agreements, ranging from the traditional notion of a
treaty — which connotes a formal, solemn instrument — to engagements concluded
in modern, simplified forms that no longer necessitate ratification.—The special
nature of an executive agreement is not just a domestic variation in international
agreements. International practice has accepted the use of various forms and
designations of international agreements, ranging from the traditional notion of a
treaty — which connotes a formal, solemn instrument — to engagements
concluded in modern, simplified forms that no longer necessitate ratification. An
international agreement may take different forms: treaty, act, protocol,
agreement, concordat, compromis d’arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed minute, memorandum of
agreement, modus vivendi, or some other form. Consequently, under international
law, the distinction between a treaty and an international agreement or even an
executive agreement is irrelevant for purposes of determining international rights
and obligations.
Same; Section 9 of Executive Order (EO) No. 459, or the Guidelines in the
Negotiation of International Agreements and its Ratification, thus, correctly
reflected the inherent powers of the President
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when it stated that the Department of Foreign Affairs (DFA) “shall determine
whether an agreement is an executive agreement or a treaty.”—Indeed, in the field
of external affairs, the President must be given a larger measure of authority and
wider discretion, subject only to the least amount of checks and restrictions under
the Constitution. The rationale behind this power and discretion was recognized
by the Court in Vinuya v. Romulo, 619 SCRA 533 (2010), cited earlier. Section 9 of
Executive Order No. 459, or the Guidelines in the Negotiation of International
Agreements and its Ratification, thus, correctly reflected the inherent powers of
the President when it stated that the DFA “shall determine whether an agreement
is an executive agreement or a treaty.” Accordingly, in the exercise of its power of
judicial review, the Court does not look into whether an international agreement
should be in the form of a treaty or an executive agreement, save in cases in which
the Constitution or a statute requires otherwise. Rather, in view of the vast
constitutional powers and prerogatives granted to the President in the field of
foreign affairs, the task of the Court is to determine whether the international
agreement is consistent with the applicable limitations.
Foreign Military Bases; Enhanced Defense Cooperation Agreement; Visiting
Forces Agreement; The admission and presence of United States (U.S.) military and
civilian personnel in Philippine territory are already allowed under the Visiting
Forces Agreement (VFA), the treaty supposedly being implemented by Enhanced
Defense Cooperation Agreement (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.—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.
Same; Same; Nowhere in Enhanced Defense Cooperation
Agreement(EDCA) are United States (U.S.) contractors guaranteed immediate
admission into the Philippines; It is neither mandatory
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nor obligatory on the part of the Philippines to admit United States (U.S.)
contractors into the country.—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. 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 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.
Same; Same; Visiting Forces Agreement; Presidency; 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; In contrast, Article 111(5) of the Visiting Forces Agreement (VFA) requires
a request for removal from the Philippine government before a member of the U.S.
personnel may be “dispos[ed] x x x outside of the Philippines.”—In the same vein,
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 Act 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] x x x outside of the Philippines.”
Same; Same; Same; Certain privileges denied to aliens are likewise denied to
foreign military contractors.—EDCA requires that all activities within Philippine
territory be in accordance with Phil-
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ippine law. This means that certain privileges denied to aliens are likewise
denied to foreign military contractors. Relevantly, providing security and carrying,
owning, and possessing firearms are illegal for foreign civilians. The laws in place
already address issues regarding the regulation of contractors. In the 2015 Foreign
Investment Negative list, the Executive Department has already identified
corporations that have equity restrictions in Philippine jurisdiction. Of note is No.
5 on the list — private security agencies that cannot have any foreign equity by
virtue of Section 4 of Republic Act No. 5487; and No. 15, which regulates contracts
for the construction of defense-related structures based on Commonwealth Act No.
541.
Same; Same; Same; United States (U.S.) contractors are explicitly excluded
from the coverage of the Visiting Forces Agreement (VFA). As visiting aliens, their
entry, presence, and activities are subject to all laws and treaties applicable within
the Philippine territory.—We emphasize that 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. They may be refused entry or expelled from the country if they engage
in illegal or undesirable activities. There is nothing that prevents them from being
detained in the country or being subject to the jurisdiction of our courts. Our penal
laws, labor laws, and immigrations laws apply to them and therefore limit their
activities here. Until and unless there is another law or treaty that specifically
deals with their entry and activities, their presence in the country is subject to
unqualified Philippine jurisdiction.
Same; Same; Agreed Locations; The latest agreement is Enhanced Defense
Cooperation Agreement (EDCA), which proposes a novel concept termed “Agreed
Locations.”—The latest agreement is EDCA, which proposes a novel concept
termed “Agreed Locations.” By definition, Agreed Locations are facilities and areas
that are provided by the Government of the Philippines through the AFP and that
United States forces, United States contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be appended to this Agreement, and may
be further described in implementing arrangements. Preliminarily, respondent
already claims that the proviso that the Philippines shall retain ownership of
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254 SUPREME COURT REPORTS ANNOTATED
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and title to the Agreed Locations means that EDCA is “consistent with
Article II of the VFA which recognizes Philippine sovereignty and jurisdiction over
locations within Philippine territory.”
Same; Same; Same; Enhanced Defense Cooperation
Agreement(EDCA) explicitly provides that ownership of the Agreed Locations
remains with the Philippine government. What United States (U.S.) personnel have
a right to, pending mutual agreement, is access to and use of these locations.—Once
ownership is established, then the rights of ownership flow freely. Article 428 of
the Civil Code provides that “[t]he owner has the right to enjoy and dispose of a
thing, without other limitations than those established by law.” Moreover, the
owner “has also a right of action against the holder and possessor of the thing in
order to recover it.” Philippine civil law therefore accords very strong rights to the
owner of property, even against those who hold the property. Possession, after all,
merely raises a disputable presumption of ownership, which can be contested
through normal judicial processes. In this case, EDCA explicitly provides that
ownership of the Agreed Locations remains with the Philippine government. What
U.S. personnel have a right to, pending mutual agreement, is access to and use of
these locations.
Same; Same; Same; So long as the right of ownership itself is not transferred,
then whatever rights are transmitted by agreement does not completely divest the
owner of the rights over the property, but may only limit them in accordance with
law.—The right of the owner of the property to allow access and use is consistent
with the Civil Code, since the owner may dispose of the property in whatever way
deemed fit, subject to the limits of the law. So long as the right of ownership itself
is not transferred, then whatever rights are transmitted by agreement does not
completely divest the owner of the rights over the property, but may only limit
them in accordance with law. Hence, even control over the property is something
that an owner may transmit freely. This act does not translate into the full transfer
of ownership, but only of certain rights. In Roman Catholic Apostolic
Administrator of Davao, Inc. v. Land Registration Commission, 102 Phil. 596
(1957), we stated that the constitutional proscription on property ownership is not
violated despite the foreign national’s control over the property.
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Same; Same; Same; For actual operations, Enhanced Defense Cooperation
Agreement (EDCA) is clear that any activity must be planned and preapproved by
the Mutual Defense Board-Security Engagement Board (MDB-SEB).—The legal
concept of operational control involves authority over personnel in a commander-
subordinate relationship and does not include control over the Agreed Locations in
this particular case. Though not necessarily stated in EDCA provisions, this
interpretation is readily implied by the reference to the taking of “appropriate
measures to protect United States forces and United States contractors.” It is but
logical, even necessary, for the U.S. to have operational control over its own forces,
in much the same way that the Philippines exercises operational control over its
own units. For actual operations, EDCA is clear that any activity must be planned
and preapproved by the MDB-SEB. This provision evinces the partnership aspect
of EDCA, such that both stakeholders have a say on how its provisions should be
put into effect.
Same; Same; Same; The Philippines retains primary responsibility for
security with respect to the Agreed Locations.—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. Significantly, 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. Even the previously discussed
necessary measures for operational control and defense over U.S. forces must be
coordinated with Philippine authorities. Jurisprudence bears out the fact that even
under the former legal regime of the MBA, Philippine laws continue to be in force
within the bases. The difference between then and now is that EDCA retains the
primary jurisdiction of the Philippines over the security of the Agreed Locations,
an important provision that gives it actual control over those locations. Previously,
it was the provost marshal of the U.S. who kept the peace and enforced Philippine
law in the bases. In this instance, Philippine forces act as peace officers, in stark
contrast to the 1947 MBA provisions on jurisdiction.
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Same; Same; Same; Even if the lawfulness of the attack were not in question,
international humanitarian law standards prevent participants in an armed
conflict from targeting nonparticipants.—Even if the lawfulness of the attack were
not in question, international humanitarian law standards prevent participants in
an armed conflict from targeting nonparticipants. International humanitarian
law, which is the branch of international law applicable to armed conflict,
expressly limits allowable military conduct exhibited by forces of a participant in
an armed conflict. Under this legal regime, participants to an armed conflict are
held to specific standards of conduct that require them to distinguish between
combatants and non-combatants, as embodied by the Geneva Conventions and
their Additional Protocols.
 Same; Same; Same; There is 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.—Any armed attack by forces
of a third state against an Agreed Location can only be legitimate under
international humanitarian law if it is against a bona fide U.S. military base,
facility, or installation that directly contributes to the military effort of the U.S.
Moreover, the third state’s forces must take all measures to ensure that they have
complied with the principle of distinction (between combatants and non-
combatants). There is, then, ample legal protection for the Philippines under
international law that would ensure its territorial integrity and national security
in the event an Agreed Location is subjected to attack. As EDCA stands, it does
not create the situation so feared by petitioners — one in which the Philippines,
while not participating in an armed conflict, would be legitimately targeted by an
enemy of the U.S.
Same; Same; Visiting Forces Agreement; The Visiting Forces
Agreement (VFA) already authorizes the presence of United States (U.S.) military
equipment in the country.—The provisions in EDCA dealing with Agreed Locations
are analogous to those in the aforementioned executive agreements. Instead of
authorizing the building of temporary structures as previous agreements have
done, EDCA authorizes the U.S. to build permanent structures or alter or improve
existing ones for, and to be owned by, the Philippines. EDCA is clear that the
Philippines retains ownership of altered or improved facilities and newly
constructed permanent or non-relocatable struc-
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tures. Under EDCA, U.S. forces will also be allowed to use facilities and areas
for “training; x x x; support and related activities; x x x; temporary accommodation
of personnel; communications” and agreed activities. 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. Article
VII of the VFA already authorizes the U.S. to import into or acquire in the
Philippines “equipment, materials, supplies, and other property” that will be used
“in connection with activities” contemplated therein. The same section also
recognizes that “[t]itle to such property shall remain” with the US and that they
have the discretion to “remove such property from the Philippines at any time.”
CARPIO, J., Separate Concurring Opinion:
Constitutional Law; Treaties; View that a ratified treaty cannot be interpreted
to require a second ratified treaty to implement the first ratified treaty, as a
fundamental rule is that a treaty must be interpreted to avoid a “result which is
manifestly absurd or unreasonable.”—A ratified treaty like the MDT must be
interpreted to allow the Executive to take all necessary measures to insure that
the treaty’s purpose is attained. A ratified treaty cannot be interpreted to require
a second ratified treaty to implement the first ratified treaty, as a fundamental
rule is that a treaty must be interpreted to avoid a “result which is manifestly
absurd or unreasonable.” This is particularly true to a mutual defense treaty the
purpose of which is mutual self-defense against sudden armed attack by a third
state.
Foreign Military Bases; Enhanced Defense Cooperation Agreement; View that
the Philippines agreed with the United States (U.S.) to use the Mutual Defense
Treaty (MDT) to preposition U.S. war materials in strategic locations in the
Philippines, particularly in the islands of Palawan and Luzon facing the West
Philippine Sea.—In 2012, China seized Scarborough Shoal from the Philippines,
which could offer no armed resistance to Chinese naval forces. The Scarborough
Shoal seizure finally made the Philippine Government realize that there was an
absolute need to deter China’s creeping invasion of Philippine islands, rocks and
reefs in the West Philippine Sea. Thus, the Philippines rushed the modernization
of its navy and
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Saguisag vs. Ochoa, Jr.
air force. The Philippines also agreed with the U.S. to use the MDT to
preposition U.S. war materials in strategic locations in the Philippines,
particularly in the islands of Palawan and Luzon facing the West Philippine Sea.
Same; Same; View that this is what the Enhanced Defense Cooperation
Agreement (EDCA) is all about — the prepositioning in strategic locations of war
materials to successfully resist any armed aggression.—In modern warfare, the
successful implementation of a mutual defense treaty requires the strategic
prepositioning of war materials. Before the advent of guided missiles and drones,
wars could take months or even years to prosecute. There was plenty of time to
conscript and train soldiers, manufacture guns and artillery, and ship war
materials to strategic locations even after the war had started. Today, wars could
be won or lost in the first few weeks or even first few days after the initial outbreak
of war. In modern warfare, the prepositioning of war materials, like mobile anti-
ship and anti-aircraft missiles, is absolutely necessary and essential to a successful
defense against armed aggression, particularly for a coastal state like the
Philippines. This is what the EDCA is all about — the prepositioning in strategic
locations of war materials to successfully resist any armed aggression. Such
prepositioning will also publicly telegraph to the enemy that any armed aggression
would be repelled. The enemy must know that we possess the capability, that is,
the war materials, to defend the country against armed aggression. Otherwise,
without such capability, we telegraph to the enemy that further seizure of
Philippine islands, rocks and reefs in the South China Sea would be a walk in the
park, just like China’s seizure of Mischief Reef and Scarborough Shoal. Without
such capability, we would practically be inviting the enemy to seize whatever
Philippine island, rock or reef it desires to seize in the West Philippine Sea.
Same; Same; View that the Philippines will lose 381,000 square kilometers of
its Exclusive Economic Zone (EEZ) in the West Philippine Sea, a maritime space
larger than the total Philippine land area of 300,000 square kilometers.—It is
obvious that China will use the three air and naval bases in its artificial islands to
prevent Philippine ships and planes from re-supplying Philippine-occupied islands
in the Spratlys, forcing the Philippines to abandon its occupied islands. Already,
Chinese coast guard vessels are preventing medium-sized Philippine ships from
re-supplying the BRP Sierra Madre, the
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dilapidated Philippine landing ship beached in Ayungin Shoal, just 20 NM
from Mischief Reef. Only the Philippines’ use of small watercrafts enables the re-
supply to the BRP Sierra Madre, which is manned by about a dozen Philippine
marine soldiers. The Philippines’ small watercrafts can navigate the shallow
waters of Ayungin Shoal while China’s large coast guard vessels cannot. With the
anticipated installation by China of military facilities and war materials in its
three air and naval bases in the Spratlys, expected to be completed before the end
of 2016, China will begin to aggressively enforce its 9-dashed lines claim over the
South China Sea. Under this claim, China asserts sovereignty not only to all the
islands, rocks and reefs in the Spratlys, but also to 85.7% of the South China Sea,
comprising all the waters, fisheries, mineral resources, seabed and submarine
areas enclosed by the 9-dashed lines. Under this claim, the Philippines will lose
381,000 square kilometers of its EEZ in the West Philippine Sea, a maritime space
larger than the total Philippine land area of 300,000 square kilometers. China’s 9-
dashed lines claim encroaches on all the traditional fishing grounds of Filipino
fishermen in the South China Sea: Scarborough Shoal, Macclesfield Bank and the
Spratlys.
Same; Same; View that unless the United States (U.S.) and the Philippines
have prepositioned anti-ship missiles in Palawan, there will be no deterrence to
China, and no swift response from U.S. and Philippine forces.—If China’s navy
ships attack a Philippine military ship re-supplying Philippine-occupied islands in
the Spratlys, that will be covered by the MDT. However, unless the U.S. and the
Philippines have prepositioned anti-ship missiles in Palawan, there will be no
deterrence to China, and no swift response from U.S. and Philippine forces. The
absence of any deterrence will likely invite Chinese harassment, or even armed
attack, on Philippine resupply ships. That will lead to the loss of all Philippine-
occupied islands in the Spratlys, as well as the loss of the gas-rich Reed Bank.
Constitutional Law; National Territory; View that the Philippine “national
territory” refers to areas over which the Philippines has
“sovereignty or jurisdiction.”—The 1987 Constitution defines the “national
territory” to include not only islands or rocks above water at high tide but also the
seabed, subsoil and other submarine areas “over which the Philippines has
sovereignty or jurisdiction.” Article 1 of the 1987 Constitution provides: The
national territory com-
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Saguisag vs. Ochoa, Jr.
prises the Philippine archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines has sovereignty
or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including
its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the
Philippines. (Emphasis supplied) Thus, the Philippine “national territory” refers
to areas over which the Philippines has “sovereignty or jurisdiction.” The
Constitution mandates: “The State shall protect the nation’s marine wealth in its
archipelagic waters, territorial sea, and exclusive economic zone, and reserve
its use and enjoyment exclusively to Filipino citizens.”
Same; Same; International Law; View that under international law and in
particular under the United Nations Convention on the Law of the Sea (UNCLOS),
the Philippines has jurisdiction over its Exclusive Economic Zone (EEZ) and
Extended Continental Shelf (ECS).—Under international law and in particular
under the UNCLOS, the Philippines has jurisdiction over its EEZ and ECS.
Thus, under domestic law, the Philippines’ EEZ and ECS form part of Philippine
“national territory” since the Constitution defines “national territory” to include
areas over which the Philippines has “jurisdiction,” a term which means less
than sovereignty. However, under international law, the Philippine “national
territory” refers to the areas over which the Philippines has sovereignty,
referring to the Philippines’ land territory, archipelagic waters and territorial sea,
excluding areas over which the Philippines exercises only jurisdiction like its EEZ
and ECS. China has already invaded repeatedly Philippine “national territory”
in two separate areas, one in the Kalayaan Island Group in the Spratlys and the
other in Scarborough Shoal. When China seized in 1988 Subi Reef, a submerged
area within the Philippines’ ECS and beyond the territorial sea of any high tide
feature, China invaded Philippine national territory as defined in the Constitution.
When China seized in 1995 Mischief Reef, a submerged area within the
Philippines’ EEZ and beyond the territorial sea of any high tide feature, China
invaded Philippine national territory as defined in the Constitution. When China
seized in 2012 Scarborough Shoal, a rock above water at high tide and constituting
land territory under international law, China invaded Philippine national
territory as defined in the Constitution and as
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understood in international law. Republic Act No. 9522, amending the
Philippine Baselines Law, expressly declares that Scarborough Shoal is part of
Philippine territory over which the Philippines exercises “sovereignty and
jurisdiction.”
Same; Same; Enhanced Defense Cooperation Agreement; View that the
Enhanced Defense Cooperation Agreement (EDCA) was born, to give much needed
teeth to the Mutual Defense Treaty (MDT) as a deterrent to further Chinese
aggression in the West Philippine Sea. Without the EDCA, the MDT remains a
toothless paper tiger.—After China’s seizure of Scarborough Shoal in 2012, the
Philippines finally woke up and summoned the political will to address the serial
and creeping Chinese invasion of Philippine national territory. Thus, the EDCA
was born, to give much needed teeth to the MDT as a deterrent to further Chinese
aggression in the West Philippine Sea. Without the EDCA, the MDT remains a
toothless paper tiger. With the EDCA, the MDT acquires a real and ready
firepower to deter any armed aggression against Philippine public vessels or
aircrafts operating in the West Philippine Sea. With the EDCA, China will think
twice before attacking Philippine military resupply ships to Philippine-occupied
islands in the Spratlys. With the EDCA, the Philippines will have a fighting chance
to hold on to Philippine-occupied islands in the Spratlys. With the EDCA, China
will think twice before attacking Philippine navy and coast guard vessels
patrolling the West Philippine Sea. This will give the Philippines a fighting chance
to ward off China’s impending enforcement of its 9-dashed lines as China’s
“national boundaries” as shown in its 2013 official vertical map.
Same; Same; Same; View that to hold that the Enhanced Defense Cooperation
Agreement (EDCA) cannot take effect without Senate ratification is to render the
Mutual Defense Treaty (MDT), our sole mutual self-defense treaty, totally inutile to
meet the grave, even existentialist,national security threat that the Philippines is
now facing in the West Philippine Sea.—The EDCA is absolutely necessary and
essential to implement the purpose of the MDT, which on the part of the
Philippines, given the existing situation in the West Philippine Sea, is to deter or
repel any armed attack on Philippine territory or on any Philippine public vessel
or aircraft operating in the West Philippine Sea. To hold that the EDCA cannot
take effect without Senate ratification is to render the MDT, our sole mutual
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self-defense treaty, totally inutile to meet the grave, even existentialist,
national security threat that the Philippines is now facing in the West Philippine
Sea. China has already invaded several geologic features comprising part
of Philippine “national territory” as defined in the Constitution. The
territorial integrity of the Philippines has been violated openly and repeatedly.
The President, as Commander-in-Chief of the Armed Forces, “chief architect” of
foreign policy and implementer of the MDT, has decided on the urgent need to
fortify Philippine military defenses by prepositioning war materials of our treaty
ally on Philippine soil. This Court should not erect roadblocks to the President’s
implementation of the MDT, particularly since time is of the essence and the
President’s act of entering into the EDCA on his own does not violate any provision
of the Constitution.
LEONARDO-DE CASTRO, J., Concurring and Dissenting Opinion:
Constitutional Law; Foreign Military Bases; View that Section 25, Article
XVIII embodies a prohibition: “foreign military bases, troops, or facilities shall not
be allowed in the Philippines,” unless the requisites in the said section are met.—
Section 25, Article XVIII bans foreign military bases, troops, or facilities in
Philippine territory, unless the following requisites are complied with: (1) the
presence of foreign military bases, troops, or facilities should be allowed by
a treaty; (2) the treaty must be duly concurred in by the Philippine
Senate and, when Congress so requires, such treaty should be ratified by a
majority of the votes cast by the Filipino people in a national referendum held for
that purpose; and (3) such treaty should be recognized as a treaty by the other
contracting party. Couched in negative terms, Section 25, Article XVIII
embodies a prohibition: “foreign military bases, troops, or facilities shall not be
allowed in the Philippines,” unless the requisites in the said section are met.
Foreign Military Bases; Visiting Forces Agreement; View that the Visiting
Forces Agreement (VFA) expressly allowed the importation into the Philippines of
reasonable quantities of personal baggage, personal effects, and other property for
the personal use of United States (U.S.) personnel.—The VFA expressly allowed the
importation into the Philippines of reasonable quantities of personal baggage,
personal effects, and other property for the personal use of United
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States personnel. The VFA likewise expressly allowed the entry into the
Philippines of (1) aircraft operated by or for the United States armed forces upon
approval of the Government of the Philippines in accordance with procedures
stipulated in implementing arrangements; and (2) vessels operated by or for the
United States armed forces upon approval of the Government of the Philippines,
in accordance with international custom and practice and such agreed
implementing arrangements as necessary. The VFA also provided for the
jurisdiction over criminal and disciplinary cases over United States personnel with
respect to offences committed within the Philippines. The VFA further stated that
the same shall remain in force until the expiration of 180 days from the date on
which either party gives the other party notice in writing that it desires to
terminate the agreement.
Same; Enhanced Defense Cooperation Agreement; View that under the
Enhanced Defense Cooperation Agreement (EDCA), the Philippines by mutual
agreement with the United States (U.S.), shall provide the U.S. forces the access
and use of portions of Philippine territory; These portions of Philippine territory
that will be made available to the U.S. are called “Agreed Locations,” which is a
new concept defined under Article II(4) of the EDCA.—Under the EDCA, the
Philippines by mutual agreement with the United States, shall provide the United
States forces the access and use of portions of Philippine territory. United States
forces are “the entity comprising United States personnel and all property,
equipment, and materiel of the United States Armed Forces present in the
territory of the Philippines.” These portions of Philippine territory that will be
made available to the US are called “Agreed Locations,” which is a new concept
defined under Article II(4) of the EDCA as: 4. “Agreed Locations” means facilities
and areas that are provided by the Government of the Philippines through the AFP
and that the United States forces, United States contractors, and others as
mutually agreed, shall have the right to access and usepursuant to this
Agreement. Such Agreed Locations may be listed in an annex to be appended to
this Agreement, and may further be described in implementing arrangements.
Same; Same; View that aside from the right to access and to use the Agreed
Locations, the United States (U.S.) may undertake the following types of activities
within the Agreed Locations: security
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cooperation exercises; joint and combined training activities; humanitarian
and disaster relief activities; and such other activities that as may be agreed upon
by the Parties.—Aside from the right to access and to use the Agreed Locations,
the United States may undertake the following types of activities within the
Agreed Locations: security cooperation exercises; joint and combined training
activities; humanitarian and disaster relief activities; and such other activities
that as may be agreed upon by the Parties.” Article III(1) of the EDCA further
states in detail the activities that the United States may conduct inside the Agreed
Locations: 1. With consideration of the views of the Parties, the Philippines hereby
authorizes and agrees· that United States forces, United States contractors, and
vehicles, vessels, and aircrafts operated by or for United States forces may conduct
the following activities with respect to Agreed Locations: training; transit;
support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of
equipment, supplies, and materiel; deploying forces and materiel; and
such other activities as the Parties may agree.
Same; Same; View that the United States (U.S.) is also granted operational
control of Agreed Locations to do construction activities, make alterations or
improvements of the Agreed Locations.—The United States is also granted
operational control of Agreed Locations to do construction activities, make
alterations or improvements of the Agreed Locations. All buildings, non-
relocatable structures, and assemblies affixed to the land in the Agreed Locations,
including [those] altered or improved by United States forces, remain the property
of the Philippines. Permanent buildings constructed by the United States forces
become the property of the Philippines, once constructed, but shall be used by the
United States forces until no longer required.
Same; Same; View that considering the presence of United States (U.S.)
armed forces: military personnel, vehicles, vessels, and aircrafts and other defensive
equipment, supplies, and materiel in the Philippines, for obvious military purposes
and with the obvious intention of assigning or stationing them within the Agreed
Locations, said Agreed Locations, for all intents and purposes, are considered
military bases and fall squarely under the definition of a military
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base under Section 2, Presidential Decree (PD) No. 1227, otherwise known
as “Punishing Unlawful Entry into Any Military Base in the Philippines.”—The
United States is authorized to preposition and store defense equipment, supplies,
and materiel (“prepositioned materiel”), including but not limited to, humanitarian
assistance and disaster relief equipment, supplies and material, at Agreed
Locations. The prepositioned materiel of the United States forces shall be for the
exclusive use of United States forces, and full title to all such equipment, supplies
and materiel remains with the United States. United States forces and United
States contractors shall have unimpeded access to Agreed Locations for all matters
relating to the prepositioning and storage of defense equipment, supplies, and
materiel, including delivery, management, inspection, use, maintenance, and
removal of such equipment, supplies and materiel. The United States forces and
United States contractors shall retain title to all equipment, materiel, supplies,
relocatable structures, and other movable property that have been imported into
or acquired within the territory of the Philippines by or on behalf of United States
forces. Considering the presence of US armed forces: military personnel, vehicles,
vessels, and aircrafts and other defensive equipment, supplies, and materiel in the
Philippines, for obvious military purposes and with the obvious intention of
assigning or stationing them within the Agreed Locations, said Agreed Locations,
for all intents and purposes, are considered military bases and fall squarely under
the definition of a military base under Section 2, Presidential Decree No. 1227,
otherwise known as “Punishing Unlawful Entry into Any Military Base in the
Philippines,” which states: SECTION 2. The term “military base” as used in this
decree means any military, air, naval, or coast guard reservation, base,
fort, camp, arsenal, yard, station, or installation in the Philippines.
Same; Same; View that the Enhanced Defense Cooperation Agreement
(EDCA) provided for an initial term of ten (10) years, which thereafter shall
continue in force automatically, unless terminated by either party by giving one
year’s written notice through diplomatic channels of its intention to terminate the
agreement.—The EDCA provided for an initial term of ten years, which thereafter
shall continue in force automatically, unless terminated by either party by giving
one year’s written notice through diplomatic channels of its intention to terminate
the agreement.
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Same; Same; International Agreements; View that the Enhanced Defense
Cooperation Agreement (EDCA) is an international agreement that allows the
presence in the Philippines of foreign military bases, troops and facilities, and thus
requires that the three requisites under Section 25, Article XVIII be complied with.
The EDCA must be submitted to the Senate for concurrence.—These EDCA
provisions establishes military areas similar to that in the Military Bases
Agreement, and for that reason alone, the EDCA is far greater in scope than both
the Mutual Defense Treaty and the Visiting Forces Agreement. The EDCA is not
a mere implementing agreement of either the MDT or the VFA. The EDCA is an
international agreement that allows the presence in the Philippines of
foreign military bases, troops and facilities, and thus requires that the three
requisites under Section 25, Article XVIII be complied with. The EDCA must be
submitted to the Senate for concurrence.
Same; Same; Same; View that international agreements may be in the form
of: (1) treaties, which require legislative concurrence after executive ratification; or
(2) executive agreements, which are similar to treaties, except that they do not
require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.—Generally, the parties to an
international agreement are given the freedom to choose the form of their
agreement. International agreements may be in the form of: (1) treaties, which
require legislative concurrence after executive ratification; or (2) executive
agreements, which are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range
of subject matters than treaties. Under Article 2 of the Vienna Convention on the
Law of Treaties, a treaty is defined as an international agreement 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.
Same; Same; View that contrary to the posturing of the majority, the presence
of foreign military bases, troops, or facilities provided under the Enhanced Defense
Cooperation Agreement (EDCA) cannot be traced to the Mutual Defense Treaty
(MDT).—The very clear-cut focal point of the EDCA is the authority granted to the
United States forces and contractors to have unimpeded access to so-
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called Agreed Locations — which can be anywhere in the Philippines — and
to build there military facilities and use the same to undertake various military
activities. The very wording of the EDCA shows that it undoubtedly deals with the
presence of foreign military bases, troops, and facilities in Philippine territory.
Thus, contrary to the posturing of the majority, the presence of foreign military
bases, troops, or facilities provided under the EDCA cannot be traced to the MDT.
Moreover, the general provisions of the MDT cannot prevail over the categorical
and specific provision of Section 25, Article XVIII of the Constitution.
Same; Same; Agreed Locations; View that under the Enhanced Defense
Cooperation Agreement (EDCA), United States (U.S.) forces and U.S. contractors
are permitted to stay in the Agreed Locations to undertake military activities
therein without any clear limitation as to the duration of their stay.—Initially, what
is abundantly clear with the foregoing enumeration is that the EDCA is an entirely
new creation. The provisions of the EDCA are not found in or have no
corresponding provisions in the VFA. They cover entirely different subject matters
and they create new and distinct rights and obligations on the part of the
Philippines and the United States. Furthermore, as to the nature of the presence
of foreign military troops in this country, the VFA is explicit in its characterization
that it is an agreement between the governments of the Philippines and the United
States regarding the treatment of United States Armed Forces visiting the
Philippines. The Preamble of the VFA likewise expressly provides that, “noting
that from time to time elements of the United States armed forces may visit the
Republic of the Philippines” and “recognizing the desirability of defining the
treatment of United States personnel visiting the Republic of the Philippines” the
parties to the VFA agreed to enter into the said treaty. The use of the word visit is
very telling. In its ordinary usage, to visit is to “stay temporarily with (someone)
or at (a place) as a guest or tourist” or to “go to see (someone or something) for a
specific purpose.” Thus, the word visit implies the temporariness or impermanence
of the presence at a specific location. On the other hand, under the EDCA, United
States forces and United States contractors are permitted to stay in the Agreed
Locations to undertake military activities therein without any clear limitation
as to the duration of their stay. Moreover, they are given unimpeded access to
Agreed Locations to
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conduct different activities that definitely were not contemplated under the
VFA.
Same; Same; View that in the instant case, some of the activities that the
United States (U.S.) forces will undertake within the Agreed Locations such as
prepositioning of defense equipment, supplies and materiel, and deploying of forces
and materiel are actual military measures supposedly put into place in anticipation
of battle.—In the instant case, some of the activities that the United States forces
will undertake within the Agreed Locations such as prepositioning of defense
equipment, supplies and materiel, and deploying of forces and materiel are actual
military measures supposedly put into place in anticipation of battle. To
preposition means “to place military units, equipment, or supplies at or near the
point of planned use or at a designated location to reduce reaction time, and to
ensure timely support of a specific force during initial phases of an operation.” On
the other hand, materiel is defined as “all items necessary to equip, operate,
maintain, and support military activities without distinction as to its application
for administrative or combat purposes.” Also, to deploy means “to place or arrange
(armed forces) in battle disposition or formation or in locations appropriate for
their future employment.” Deployment also means “the rotation of forces into and
out of an operational area.”
Same; Same; View that this grant of authority to construct new buildings and
the improvement of existing buildings inside the Agreed Locations — which
buildings are to be used indefinitely — further evinces the permanent nature of the
stay of United States (U.S.) forces and contractors in this country under the
Enhanced Defense Cooperation Agreement (EDCA).—The EDCA likewise allows
the construction of permanent buildings, which the United States forces can utilize
until such time that they no longer need the use thereof. The construction of
permanent buildings, including the alteration or improvement by the United
States of existing buildings, structures and assemblies affixed to the land, are
certainly necessary not only for the accommodation of its troops, bunkering of
vessels, maintenance of its vehicles, but also the creation of the proper facilities
for the storage and prepositioning of its defense materiel. This grant of authority
to construct new buildings and the improvement of existing buildings inside the
Agreed Locations — which buildings are to be used indefinitely — further evinces
the perma-
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nent nature of the stay of United States forces and contractors in this country
under the EDCA. This is a far cry from the temporary visits of United States armed
forces contemplated in the VFA.
Same; Same; View that the intervention of the Senate through the
constitutionally ordained treaty-making process in defining the new national policy
concerning United States (U.S.) access to Agreed Locations enunciated in the
Enhanced Defense Cooperation Agreement (EDCA), which has never been before
expressly or impliedly authorized, is imperative and indispensible for the validity
and effectivity of the EDCA.—Article II(4) of the EDCA states that the Agreed
Locations shall be provided by the Philippine Government through the
AFP. What is readily apparent from said article is that the AFP is given a broad
discretion to enter into agreements with the United States with respect to the
Agreed Locations. The grant of such discretion to the AFP is without any guideline,
limitation, or standard as to the size, area, location, boundaries and even the
number of Agreed Locations to be provided to the United States forces. As there is
no sufficient standard in the EDCA itself, and no means to determine the limits of
authority granted, the AFP can exercise unfettered power that may have grave
implications on national security. The intervention of the Senate through the
constitutionally ordained treaty-making process in defining the new national
policy concerning United States access to Agreed Locations enunciated in the
EDCA, which has never been before expressly or impliedly authorized,
is imperative and indispensible for the validity and effectivity of the EDCA.
Same; Same; View that the initial entry of United States (U.S.) troops under
the Visiting Forces Agreement (VFA) cannot, as postulated by the ponencia, justify
a “treaty-authorized” presence under the Enhanced Defense Cooperation Agreement
(EDCA), since the presence contemplated in the EDCA also pertains to the
establishment of foreign military bases or facilities, and not merely visiting
troops.—The VFA, which allows the presence of the units of the United States
military troops, cannot by any stretch of the imagination include any arrangement
that practically allows the establishment of United States
military bases or facilities in the so-called Agreed Locations under the EDCA.
Thus, the EDCA goes far-beyond the arrangement contemplated by the VFA and
therefore it necessarily requires Senate concurrence as mandated by Section 25,
Article XVIII of the
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Constitution. In the same vein, the initial entry of United
States troops under the VFA cannot, as postulated by the ponencia, justify a
“treaty-authorized” presence under the EDCA, since the presence contemplated in
the EDCA also pertains to the establishment of foreign military bases or facilities,
and not merely visiting troops.
Same; Same; View that the argument that the entry of the United States (U.S.)
bases, troops and facilities under the Enhanced Defense Cooperation Agreement
(EDCA) is already allowed in view of the “initial entry” of U.S. troops under the
Visiting Forces Agreement (VFA) glaringly ignores that the entry of visiting foreign
military troops is distinct and separate from the presence or establishment of
foreign military bases or facilities in the country under Section 25, Article XVIII of
the Constitution.—The argument that the entry of the United States bases, troops
and facilities under the EDCA is already allowed in view of the “initial entry” of
United States troops under the VFA glaringly ignores that the entry of visiting
foreign military troops is distinct and separate from the presence or establishment
of foreign military bases or facilities in the country under Section 25, Article XVIII
of the Constitution. To reiterate, the EDCA is entirely a new treaty, separate and
distinct from the VFA and the MDT. Hence, it must satisfy the requirements under
Section 25, Article XVIII of the Constitution. The Senate itself issued Resolution
No. 105 on November 10, 2015, whereby it expressed its “definite stand on the non-
negotiable power of the Senate to decide whether a treaty will be valid and effective
depending on the Senate concurrence” and resolved “that the RP-US EDCA [is a]
treaty [that] requires Senate concurrence in order to be valid and effective.”
BRION, J., Dissenting Opinion:
Constitutional Law; Executive Agreements; Enhanced Defense Cooperation
Agreement; View that the Enhanced Defense Cooperation Agreement (EDCA) is an
agreement that, on deeper examination, violates the letter and spirit of Article
XVIII, Section 25 and Article VII, Section 21, both of the Constitution.—I
dissent, as I disagree that an executive agreement is the proper medium
for the matters covered by the EDCA. The EDCA is an agreement that, on
deeper examination, violates the letter and spirit of Article XVIII, Section 25 and
Article VII, Section 21, both of the Constitution. The EDCA should be in the
form of a treaty as it brings back to
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the Philippines: the modern equivalent of the foreign military bases
whose term expired in 1991 and which Article XVIII, Section 25 of the
Constitution directly addresses; foreign troops under arrangements
outside of the contemplation of the visiting forces that the 1998 VFA
allows; and military facilities that, under modern military strategy,
likewise can be brought in only through a treaty.
Same; Judicial Review; View that judicial review is part of the exercise of
judicial power under Article VIII, Section 1 of the Constitution, particularly when
it is exercised under the judiciary’s expanded power (i.e., when courts pass upon the
actions of other agencies of government for the grave abuse of discretion they
committed), or when the Supreme Court (SC) reviews, on appeal or certiorari, the
constitutionality or validity of any law or other governmental instruments under
Section 5(2)(a) and (b) of Article VIII of the Constitution.—I agree with
the ponencia’s ultimate conclusions on the threshold issues raised. I agree as well
that a justiciable issue exists that the Court can pass upon, although on both
counts I differ from the ponencia’s line of reasoning. Let me point out at the outset,
too, that judicial review is only an exercise of the wider judicial power that Article
VIII, Section 1 of the Constitution grants and defines. One should not be confused
with the other. Judicial review is part of the exercise of judicial power under Article
VIII, Section 1 of the Constitution, particularly when it is exercised under the
judiciary’s expanded power (i.e., when courts pass upon the actions of other
agencies of government for the grave abuse of discretion they committed), or when
the Supreme Court reviews, on appeal or certiorari, the constitutionality or
validity of any law or other governmental instruments under Section 5(2)(a) and
(b) of Article VIII of the Constitution. A basic requirement is the existence of
an actual case or controversy that, viewed correctly, is a limit on the exercise of
judicial power or the more specific power of judicial review.
Same; Locus Standi; View that the standing of even a plain citizen sufficiently
able to bring and support a suit, should be recognized as he or she can then be
deemed to be acting in representation of the general public.—Locus standi is a
requirement for the exercise of judicial review and is in fact an aspect of the actual
case or controversy requirement viewed from the prism of the complaining party
whose right has been violated. When a violation of a private right is
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Saguisag vs. Ochoa, Jr.
asserted, the locus standi requirement is sharp and narrow because the
claim of violation accrues only to the complainant or the petitioner whose right is
alleged to have been violated. On the other hand, when a violation of a public
right is asserted — i.e., a right that belongs to the public in general and whose
violation ultimately affects every member of the public — the locus
standi requirement cannot be sharp or narrow; it must correspond in width to the
right violated. Thus, the standing of even a plain citizen sufficiently able to bring
and support a suit, should be recognized as he or she can then be deemed to be
acting in representation of the general public.
Same; Same; View that the issues involved in the present case are so
important that a plain citizen sufficiently knowledgeable of the outstanding
issues, should be allowed to sue.—I believe that the issues involved in the present
case are so important that a plain citizen sufficiently knowledgeable of the
outstanding issues, should be allowed to sue. The petitioners — some of whom are
recognized legal luminaries or are noted for their activism on constitutional
matters — should thus be recognized as parties with proper standing to file and
pursue their petitions before this Court.
Same; Foreign Military Bases; View that in the present cases, Article VIII,
Section 25 of the Constitution lays down in no uncertain terms the conditions under
which foreign military bases, troops, and facilities may be allowed into the country:
there should at least be the concurrence of the Senate.—In the present cases, Article
VIII, Section 25 of the Constitution lays down in no uncertain terms the conditions
under which foreign military bases, troops, and facilities may be allowed into the
country: there should at least be the concurrence of the Senate. Under these terms,
the refusal to allow entry of foreign military bases, troops, and facilities into the
country without the required Senate concurrence is a prerogative that the people
of this country adopted for themselves under their Constitution: they want
participation in this decision, however indirect this participation might be. This
prerogative is exercised through the Senate; thus, a violation of this constitutional
prerogative is not only a transgression against the Senate but one against the
people who the Senate represents. The violation in this case occurred when the
President ratified the EDCA as an executive agreement and certified to the other
contracting party (the U.S.) that all the internal processes have been complied
with, leading the latter to believe that the
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agreement is already valid and enforceable. Upon such violation, the dispute
between the President and the Filipino people ripened.
Same; Same; Enhanced Defense Cooperation Agreement; View that if indeed
a referral to the Senate is required and no referral has been made, then the
Enhanced Defense Cooperation Agreement (EDCA) is constitutionally deficient so
that its terms cannot be enforced.—The main issue the petitioners pose — the
constitutional status of the EDCA as an executive agreement in light of the
mandate of Article XVIII, Section 25 of the Constitution — is not a political
question outside the judiciary’s competence and authority to resolve. The
respondents’ argument on this point is therefore erroneous. If indeed a referral to
the Senate is required and no referral has been made, then the EDCA
is constitutionally deficient so that its terms cannot be enforced. This finding
renders further proceedings on the merits of the substantive issues raised,
pointless and unwarranted. There is likewise no point in determining whether the
substantive issues raised call for the application of the political question doctrine.
Same; Same; Same; View that the Filipino nation cannot attain self-respect
unless it shows its respect for its own Constitution — the only instrument that binds
the whole nation.—EDCA and Article XVIII, Section 25 of the Constitution,
in their larger regional signification, mean that the Philippines would
thereafter, not only be bound as an American ally under the 1951 MDT, but
as an active participant as “pivot” and projection points in the grand
American strategy in Asia. How the Philippines will react to all these
developments is largely for the Executive and the people (through the Legislature)
to determine. In making its decisions, they must — at the very least — show one
and all that our country is entitled to respect as an independent and sovereign
nation. This respect must come primarily from within the Philippines and
the Filipinos themselves, from the nation’s own sense of self-respect: in
negative terms, the Filipino nation cannot attain self-respect unless it
shows its respect for its own Constitution — the only instrument that binds
the whole nation.
Same; Presidency; View that the supremacy of the Constitution means that in
the performance of his duties, the President should always be guided and kept in
check by the safeguards that were crafted by the framers of the Constitution and
ratified by the people.—The supremacy of the Constitution means that in the
performance of his duties, the President should always be guided and kept in check
by the safeguards that were
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Saguisag vs. Ochoa, Jr.
crafted by the framers of the Constitution and ratified by the people. The
Constitution prescribes the limitations to the otherwise awesome powers of the
Executive who wields the power of the sword and shares in the power of the purse.
I also do not agree that constitutional limitations, such as the need for Senate
concurrence in treaties, can be disregarded if they unduly “tie the hands” of the
President. These limitations are democratic safeguards that place the
responsibility over national policy beyond the hands of a single official. Their
existence is the hallmark of a strong and healthy democracy. In treaty-making,
this is how the people participate — through their duly elected Senate — or
directly when the Congress so requires. When the Constitution so dictates, the
President must act through the medium of a treaty and is left with no discretion on
the matter. This is the situation under Article XVIII, Section 25 of the Constitution,
whose application is currently in dispute. Let it be noted that noble objectives do
not authorize the President to bypass constitutional safeguards and limits to his
powers. To emphasize this point, we only need to refer to Article VI, Section 23(2)
of the Constitution: (2) In times of war or other national emergency,
the Congress may by law authorize the President, for a limited period and
subject to such restrictions as it may prescribe, to exercise powers necessary
and proper to carry out a declared national policy. Unless sooner withdrawn
by resolution of the Congress, such power shall cease upon the next adjournment
thereof. [Emphasis supplied] Thus, the President cannot, by himself, usurp the
prerogatives of a coequal branch to carry out what he believes is necessary for the
country’s defense interests. His position as the Commander-in-Chief of the Armed
Forces of the Philippines (AFP) does not give him the sole discretion to increase
our military’s defensive capabilities; his role as commander-in-chief only gives him
control of the military’s chain of command. It grants him the power to call out the
armed forces to prevent/suppress lawless violence, invasion, insurrection, or
rebellion.
Same; Same; View that while the President’s role as the country’s lead official
in the conduct of foreign affairs is beyond question, his authority is not without
limit.—While the President’s role as the country’s lead official in the conduct of
foreign affairs is beyond
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question, his authority is not without limit. When examined within the
larger context of how our tripartite system of government works (where each
branch of government is supreme within its sphere but coordinate with the others),
we can see that the conduct of foreign affairs, particularly when it comes to
international agreements, is a shared function among all three branches of
government. The President is undeniably the chief architect of foreign policy and
is the country’s representative in international affairs. He is vested with the
authority to preside over the nation’s foreign relations which involve, among
others, dealing with foreign states and governments, extending or withholding
recognition, maintaining diplomatic relations, and entering into treaties. In the
realm of treaty-making, the President has the sole authority to negotiate with
other States.
Same; Same; Treaties; View that by requiring the concurrence of the
Legislature in the treaties entered into by the President, the Constitution ensures a
healthy system of checks and balances necessary in the nation’s pursuit of political
maturity and growth.—That we have consistently included the participation of the
legislative branch in the treaty-making process is not without an important
reason: it provides a check on the Executive in the field of foreign relations. By
requiring the concurrence of the Legislature in the treaties entered into by the
President, the Constitution ensures a healthy system of checks and balances
necessary in the nation’s pursuit of political maturity and growth. Under this
system, the functions of government are divided among three branches of
government, each one supreme within its own sphere: the executive administers
and enforces laws; the legislature formulates and enacts laws; and the judiciary
settles cases arising out of the enforcement of these laws. The requirement of
Senate concurrence to the executive’s treaty-making powers is a check on the
prerogative of the Executive, in the same manner that the Executive’s veto on laws
passed by Congress is a check on the latter’s legislative powers.
Same; Same; Same; Judicial Review; View that entry into international
agreements is a shared function among the three (3) branches of government.—The
judicial branch of government’s participation in international agreements is
largely passive, and is only triggered when cases reach the courts. The courts, in
the exercise of their judicial power, have the duty to ensure that the Executive and
Legislature stay within their spheres of competence; they ensure as
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 Saguisag vs. Ochoa, Jr.
well that constitutional standards and limitations set by the Constitution for
the Executive and the Congress to follow are not violated. Article VIII, Section 5
of the Constitution is even more explicit, as it gives the Supreme Court the
jurisdiction “to review by appeal or certiorari all cases in which the
constitutionality or validity of any treaty, international or executive agreement,
law x x x is in question.” Thus, entry into international agreements is a shared
function among the three branches of government. In this light and in the context
that the President’s actions should be viewed under our tripartite system of
government, I cannot agree with the ponencia’s assertion that the
case should be examined solely and strictly through the constitutional
limitation found in Article XVIII, Section 25 of the Constitution.
Same; Treaties; Executive Agreements; View that Bayan Muna v.
Romulo, 641 SCRA 244 (2011), did not distinguish between treaties and executive
agreements in terms of their binding effects on the contracting States concerned.—
Jurisprudential definitions of treaties and executive agreements are conceptually
drawn from these distinctions although in Bayan Muna v. Romulo, 641 SCRA 244
(2011), we simply differentiated treaties from executive agreements in this wise:
Article 2 of the Vienna Convention on the Law of Treaties: An international
agreement 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. International
agreements may be in the form of (1) treaties that require legislative
concurrence after executive ratification; or (2) executive agreements that
are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties. [Emphases supplied] Bayan Muna likewise did not
distinguish between treaties and executive agreements in terms of their binding
effects on the contracting States concerned. But neither one can contravene the
Constitution. This ambiguity perhaps might have been the root of the general
statement that the Executive generally has the discretion to determine whether
an international obligation should be in the form of a treaty or an executive
agreement. This general statement, however, is far from complete and should be
qualified because the Executive’s exercise of discretion is affected and should be
dictated by the demands of the enforceability of the obligations the international
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agreement creates in the domestic sphere. Between a treaty and an executive
agreement, a treaty exists on a higher plane as it carries the authority of the
President and the Senate. Treaties have the status, effect, and impact of statutory
law in the Philippines; they can amend or prevail over prior statutory enactments.
Executive agreements — which exist at the level of implementing rules and
regulations or administrative orders in the domestic sphere — carry no such effect.
They cannot contravene statutory enactments and treaties and would be invalid if
they do so. Again, this difference in impact is traceable to the source of their
authority; since a treaty has the approval of both the President and the Senate, it
has the same impact as a statute. In contrast, since an executive agreement
springs from the President’s power to execute laws, it cannot amend or violate
existing treaties, and must be in accord with and be made pursuant to existing
laws and treaties.
Same; Same; Same; International Agreements; View that when an
international agreement is made merely to implement an existing law or
treaty, then it can properly take the form of an executive agreement. In contrast,
when an international agreement involves the introduction of a new subject
matter or the amendment of existing agreements or laws and has not passed the
required executive and legislative processes, then it should properly be in the form
of a treaty.—Accordingly, the terms and objectives of the presidential entry into an
international agreement dictates the form the agreement must take. When an
international agreement is made merely to implement an existing law or
treaty, then it can properly take the form of an executive agreement. In contrast,
when an international agreement involves the introduction of a new subject
matter or the amendment of existing agreements or laws and has not passed
the required executive and legislative processes, then it should properly be in the
form of a treaty.
Same; Foreign Military Bases; View that the dynamics that Article VII,
Section 21 embody, should be read into Article XVIII, Section 25 of the 1987
Constitution, which specifically covers and applies to the entry of foreign military
bases, troops, or facilities into the country.—The dynamics that Article VII, Section
21 embody, should be read into Article XVIII, Section 25 of the 1987 Constitution,
which specifically covers and applies to the entry of foreign military bases, troops,
or facilities into the country. It is on the basis of this joint
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reading that the ponencia’s conclusion — that Article XVIII, Section 25
applies only to the initial entry of foreign military bases, troops, and facilities in
the country — is essentially incorrect. Article XVIII, Section 25 does not provide
for any such limitation in its applicability. Neither is there anything in the
language of the provision that remotely implies this consequence. What it simply
states is that foreign military bases, troops, and facilities may only be present in
Philippine soil in accordance with a treatyconcurred in by the Senate.
Same; Same; International Agreements; View that any subsequent
international agreement referring to military bases, troops or facilities should
be examined based on whether it creates a new obligation or implements an existing
one.—After the initial entry of foreign military bases, troops, or facilities in the
Philippines under a duly ratified treaty, subsequent arrangements relating to
foreign military bases, troops or facilities that are claimed to be based on the same
treaty, should be examined based on the treaty-executive agreement distinctions
recognized by jurisprudence under Article VII, Section 21 of the Constitution. In
other words, any subsequent international agreement referring to military bases,
troops or facilities should be examined based on whether it creates a new
obligation or implements an existing one. The determination of this question
rests with the Executive but the treaty-executive agreement distinctions should
limit the Executive’s discretion when the new international agreement relates to
a new obligation (or a change in an existing obligation) as the presence of foreign
military bases, troops, or facilities in the Philippines should then be effected
through another treaty.
Same; Same; Enhanced Defense Cooperation Agreement; View that if the
Enhanced Defense Cooperation Agreement (EDCA) introduces foreign military
bases, troops, or facilities in the Philippines within the contemplation of Article
XVIII, Section 25 of the 1987 Constitution, and if these obligations are different
from those found in our existing treaty obligations with the United States (U.S.),
then the EDCA cannot be enforced in the Philippines without the Senate’s
concurrence.—If the EDCA introduces foreign military bases, troops, or facilities
in the Philippines within the contemplation of Article XVIII, Section 25 of the 1987
Constitution, and if these obligations are different from those found in our existing
treaty obligations with
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the U.S., then the EDCA cannot be enforced in the Philippines without the
Senate’s concurrence. The ponencia is then incorrect and the Dissent must
prevail. Conversely, if the EDCA merely implements present treaty obligations
— particularly those under the 1951 MDT and the 1998 VFA — then the President
was well within his powers in the execution of our present treaty
obligations. The ponencia is correct and the Dissent therefore fails.
Same; International Agreements; Treaties; View that when the subject of an
international agreement falls under Article XVIII, Section 25 of the Constitution,
the President — by constitutional command — must enter into a treaty subject to
the concurrence of the Senate and, when Congress so desires, of the people through
a national referendum.—When the subject of an international agreement falls
under Article XVIII, Section 25 of the Constitution, the President — by
constitutional command — must enter into a treaty subject to the concurrence of
the Senate and, when Congress so desires, of the people through a national
referendum. This rule opens the door for Court intervention pursuant to its duty
to uphold the Constitution and its further duty (under its power of judicial review)
to pass upon any grave abuse of discretion committed by any official or agency of
government. It is under this constitutionally-mandated terms that this Court
invokes its power to review the constitutionality of the President’s actions in
handling the EDCA. Within this framework, the issue these cases present is clear.
The bottom line question is whether the President gravely abused his
discretion in executing the EDCA as an executive agreement; the alleged
existence of grave abuse of discretion constitutes the actual case or
controversy that allows the exercise of judicial power. Whether grave abuse
exists, in turn, depends on the determination of whether the terms of the
EDCA imposed new or amended existing obligations involving foreign
military bases, troops, and facilities in the Philippines.
Same; Foreign Military Bases; View that within its territory, a nation reigns
supreme. If it will allow interference at all, such interference should be under the
terms the nation allows and has accepted; beyond those terms, the primacy of
sovereignty is the rule.—I believe that the ponencia’s approach and
interpretation are incorrect because they are overly simplistic. The proper
understanding of Article XVIII, Section 25 must take into account the many
considera-
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tions that bear upon its plain terms, among them, the treaty-executive
agreement distinctions under Article VII, Section 21 that I discussed above; the
history of Article XVIII, Section 25; the motivations that drove the framers to adopt
the provision; and the current and contemporaneous developments and usages
that give full and effective meaning to the provision. Separately from textual
interpretation considerations and as part of the history of Article XVIII, Section
25, the basic concept of sovereignty that underlies it should not be forgotten.
Sovereignty means the full right and power of the nation to govern itself, its people,
and its territory without any interference from outside sources or entities. Within
its territory, a nation reigns supreme. If it will allow interference at all, such
interference should be under the terms the nation allows and has accepted; beyond
those terms, the primacy of sovereignty is the rule.
Same; Treaties; View that Article XVIII, Section 25 imposed three (3)
requirements that must be complied with for an agreement to be considered valid
insofar as the Philippines is concerned. These three requirements are: (1) the
agreement must be embodied in a treaty; (2) the treaty must be duly concurred in
by 2/3 votes of all the members of the Senate; recognized as a treaty by the other
State; and (3) the agreement must be recognized as a treaty by the other State.—
Article XVIII, Section 25 imposed three requirements that must be complied with
for an agreement to be considered valid insofar as the Philippines is concerned.
These three requirements are: (1) the agreement must be embodied in a treaty; (2)
the treaty must be duly concurred in by 2/3 votes of all the members of the Senate;
and (3) the agreement must be recognized as a treaty by the other State. On the
second requirement, the two-thirds concurrence of all the members of the Senate,
the people’s representative, may be viewed as the people’s “voluntary submission”
of their sovereignty so they can reap the greater benefits of the agreement that the
President, as policymaker, entered into. When the Congress so requires, the
agreement should be ratified by a majority of the votes cast by the people in a
national referendum held for that purpose. This additional requirement evinces
the framers’ intent to emphasize the people’s direct participation in treaty-making.
Same; Same; Mutual Defense Treaty; View that an attack on either party will
be acted upon in accordance with their constitutional processes and any armed
attack on either party will be brought to the

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attention of the United Nations (UN) for immediate action.—The 1951 MDT
provides for an alliance — that both nations would support one another if either
the Philippines or the U.S. would be attacked by an external party. It states that
each party shall either, separately or jointly, through mutual aid, acquire, develop
and maintain their capacity to resist armed attack. It provides for a mode of
consultations to determine the 1951 MDT’s appropriate implementation measures
and when either of the parties determines that their territorial integrity, political
independence, or national security is threatened by armed attack in the Pacific. An
attack on either party will be acted upon in accordance with their constitutional
processes and any armed attack on either party will be brought to the attention of
the United Nations for immediate action. The accord defines the meaning of an
armed attack as including armed attacks by a hostile power on a metropolitan area
of either party, on the island territories under their jurisdiction in the Pacific, or
on their armed forces, public vessels, or aircrafts in the Pacific. The U.S.
government guaranteed to defend the security of the Philippines against external
aggression but not necessarily against internal subversion. The treaty expressly
stipulates that its terms are indefinite and would last until one or both parties
terminate the agreement by a one-year advance notice. The treaty subsequently
became the basis for an annual joint exercise, known as Balikatan, between the
Philippines and the U.S.
Same; Same; Visiting Forces Agreement; View that the 1998 Visiting Forces
Agreement (VFA) allows the rotational presence of United States (U.S.) military
forces and their operations anywhere in the Philippines for a temporary but
undefined length of time to train and inter-operate with the Philippine armed forces
and to use their facilities.—In line with the American approach, the 1998 VFA
allows the rotational presence of U.S. military forces and their operations
anywhere in the Philippines for a temporary but undefined length of time to train
and inter-operate with the Philippine armed forces and to use their facilities. The
Philippines retains jurisdiction over criminal cases, including capital offenses,
involving U.S. troops.
Enhanced Defense Cooperation Agreement; View that the agreement allows
the United States (U.S.) to station troops and operations on Philippine territory
without establishing a permanent base and with the stipulation that the U.S. is not
allowed to store or
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position any nuclear weapons on Philippine territory.—The EDCA was
signed on April 28, 2014, in Manila, by Philippine Defense Secretary Voltaire
Gazmin, and U.S. Ambassador to the Philippines Philip Goldberg, in time for the
official state visit by U.S. President Barack Obama. The 10-year accord is the
second military agreement between the U.S. and the Philippines (the first being
the 1998 VFA) since American troops withdrew from its Philippines naval base in
1992. The agreement allows the U.S. to station troops and operations on Philippine
territory without establishing a permanent base and with the stipulation that the
U.S. is not allowed to store or position any nuclear weapons on Philippine territory.
Same; View that the Enhanced Defense Cooperation Agreement (EDCA) is
effective for ten (10) years, unless both the United States (U.S.) and the Philippines
formally agree to alter it.—The EDCA is effective for 10 years, unless both the U.S.
and the Philippines formally agree to alter it. The U.S. is bound to hand over any
and all facilities in the “Agreed Locations” to the Philippine government upon the
termination of the Agreement.
Military Bases; View that a military base connotes the presence, in a relatively
permanent degree, of troops and facilities in a particular area.—There exists no
rigid definition of a military base. However, it is a term used in the field of military
operations and thus has a generally accepted connotation. The U.S. Department of
Defense (DoD) Dictionary of Military and Associated Terms defines a base as “an
area or locality containing installations which provide logistic or other support”;
home carrier. Under our laws, we find the definition of a military base in
Presidential Decree No. 1227 which states that a military base is “any military,
air, naval, coast guard reservation, base, fort, camp, arsenal, yard, station, or
installation in the Philippines.” A military base connotes the presence, in a
relatively permanent degree, of troops and facilities in a particular area.
Enhanced Defense Cooperation Agreement; View that the Enhanced Defense
Cooperation Agreement (EDCA) allows United States (U.S.) military personnel to
enter and remain in Philippine territory. It grants the U.S. the right to construct
structures and assemblies. It also allows the U.S. to preposition defense equipment,
supplies and materiel. The U.S. personnel may also use the Agreed Locations to
refuel aircraft and bunker vessels.—To go back to the EDCA, it nota-
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bly allows the U.S. to use the Agreed Locations for the following activities:
“training, transit, support and related activities, refueling of aircraft; bunkering of
vessels; temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
supplies, and materiel; deploying forces and materiel and such other activities as
the Parties may agree.” In order to carry out these activities, the EDCA allows U.S.
military personnel to enter and remain in Philippine territory. It grants the U.S.
the right to construct structures and assemblies. It also allows the
U.S. to preposition defense equipment, supplies and materiel. The U.S. personnel
may also use the Agreed Locations to refuel aircraft and bunker vessels.
Mutual Defense Treaty; Visiting Forces Agreement; View that neither the
1951 Mutual Defense Treaty (MDT) nor the 1998 Visiting Forces Agreement
(VFA) authorized stockpiling. The 1951 MDT focused on developing the Philippines
and the United States’ (U.S.’) capacity to resist an armed attack while 1998 VFA
focused on the entry and exit of U.S. troops in the country. No provision in either
treaty specifically allows stockpiling of military materiel.—Notably, neither the
1951 MDT nor the 1998 VFA authorized stockpiling. The 1951 MDT focused
on developing the Philippines and the U.S.’s capacity to resist an armed attack
while 1998 VFA focused on the entry and exit of US troops in the country. No
provision in either treaty specifically allows stockpiling of military materiel. In
sum, the Agreed Locations mentioned in the EDCA are areas where the U.S. can
perform military activities in structures built by its personnel. The extent of the
U.S.’ right to use of the Agreed Locations is broad enough to include even
the stockpiling of weapons and the shelter and repair of vessels over which the U.S.
personnel has exclusive control. Clearly, this is a military base as this term is
ordinarily understood. Further, as we held in BAYAN (Bagong Alyansang
Makabayan) v. Zamora, 342 SCRA 449 (2000), Article XVIII, Section 25 refers to
three different situations: the presence of foreign military bases, troops, or
facilities. Even assuming that the EDCA is not a basing agreement, it
nevertheless involves the deployment of troops and facilities in Philippine
soil. As I have already stated, the EDCA allows U.S. forces to enter and remain in
the Philippines. It defines U.S. forces to include U.S. military and civilian
personnel and U.S. Armed Forces property,
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equipment, and materiel. The EDCA itself provides that the U.S. can deploy
forces and materiel in the Agreed Locations.
Foreign Military Bases; Enhanced Defense Cooperation Agreement; View that
that the Enhanced Defense Cooperation Agreement (EDCA) allows this
arrangement for an initial period of ten (10) years, to continue automatically
unless terminated, is further proof that it pertains to the presence in Philippine soil
of foreign military bases, troops, and facilities on a more or less permanent basis.—
That the EDCA allows this arrangement for an initial period of 10 years, to
continue automatically unless terminated, is further proof that it pertains to the
presence in Philippine soil of foreign military bases, troops, and facilities on a more
or less permanent basis.Note, at this point, that the Senators, during the
ratification of the 1998 VFA, observed that it only covers temporary visits of U.S.
troops and personnel in the country. These Senators gave their consent to the
1998 VFA on the knowledge that the U.S. forces’ stay in the country may
last only up to three weeks to six months per batch. This temporary stay of
U.S. forces in the Philippines under the 1998 VFA means that it does not cover, or
approve of, a more permanent stay of US forces and their equipment in the
Philippines. Significantly, this is the key characteristic of the Agreed Locations in
the EDCA. For, if the EDCA had not envisioned the stay of U.S. forces and
equipment in the Agreed Locations in the Philippines for a period longer than
envisioned in the 1998 VFA, it would not have added obligations regarding
the storage of their equipment and materiel. The more permanent nature of the
EDCA, in contrast to the 1998 VFA, indicates a change in the tenor of the
agreement in the EDCA, one that does not merely implement the 1998 VFA.
Same; Same; View that the introduction of military bases or their equivalent,
of troops, and of military facilities into the Philippines can now only take place by
way of a treaty concurred in by the Senate.—The detailed arrangements that
expired with the 1947 MBA were not carried over to the 1951 MDT as this treaty
only generally provided for the defense and alliance relationship between the U.S.
and the Philippines. Thus, there were no specific policies on military bases, troops,
and facilities that could be implemented and operationalized by subsequent
executive agreements on the basis of the MDT. In particular, the terms of the
1947 MBA that had expired and had not been renewed cannot be deemed
carried
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over to the 1951 MDT. If any such future agreements would be made
after the effectivity of the 1987 Constitution, then such agreements would
be governed by Article XVIII, Section 25 of the new
Constitution.Significantly, when the 1987 Constitution and its Article XVIII,
Section 25 took effect, no absolute prohibition against the introduction of new U.S.
bases, troops, and facilities was put in place. In fact the 1951 MDT then still
existed as a general defense alliance of the Philippines and the U.S. against armed
attack by third parties. But the introduction of military bases or their equivalent,
of troops, and of military facilities into the Philippines can now only take place by
way of a treaty concurred in by the Senate.
Same; Same; View that the Enhanced Defense Cooperation Agreement
(EDCA) introduces new arrangements and obligations to those existing under the
1998 Visiting Forces Agreement (VFA); hence, the EDCA should be in the form of a
treaty.—Is the EDCA merely an agreement implementing the 1998 VFA which
already allows the limited entry of U.S. military troops and the construction of
facilities? The quick and short answer to the above question is — No, the EDCA
does not implement the 1998 VFA as the EDCA in fact provides a wider
arrangement than the 1998 VFA with respect to the entry of military bases, troops,
and facilities into the Philippines. A naughty view is that the 1998 VFA should
form part of the EDCA and not the other way around. Another reality, based on
the treaty-executive agreement distinctions discussed above, is that the EDCA
introduces new arrangements and obligations to those existing under the
1998 VFA; hence, the EDCA should be in the form of a treaty.
Visiting Forces Agreement; View that the Visiting Forces
Agreement (VFA) itself does not authorize United States (U.S.) troops to
permanently stay in the Philippines, nor authorize any activity related to the
establishment and the operation of bases, as these activities had been defined under
the 1947 Military Bases Agreement (MBA).—Harking back to the 1947 MBA and
its clear and certain terms, what comes out boldly is that the 1998 VFA is not an
agreement that covers “activities” in the way that the 1947 MBA did; it is
simply an agreement regulating the status of and the treatment to be
accorded to U.S. armed forces personnel and their aircraft and vehicles
while visiting the Philippines. The agreement itself does not authorize U.S.
troops to permanently stay in the Philippines nor authorize any activity related
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to the establishment and the operation of bases, as these activities had been
defined under the 1947 MBA.
Enhanced Defense Cooperation Agreement; Agreed Locations; View that
within the Agreed Locations, the United States (U.S.) can also preposition defense
equipment, supplies, and materiel over which the U.S. forces shall have exclusive
use and control. Clearly, the right to deploy weapons can be undertaken even if it is
not in the pursuit of joint activities for common security interests.—A reading of the
EDCA’s provisions shows that the rights and privileges granted to the U.S. do not
always carry a concomitant right on the part of the Philippines nor do they involve
joint exercises. While the EDCA mentions that the Agreed Locations may be used
for “security cooperation exercises” and “joint and combined training activities,”
the provisions of the EDCA also provide for the conduct of other activities beyond
the 1951 MDT and the 1998 VFA. Within the Agreed Locations, the U.S. may
conduct trainings for its troops, transit, support and related activities. The EDCA
also allows the U.S. to use the Agreed Locations to refuel aircraft, bunker vessels,
temporarily maintain vehicles, vessels and aircraft. Significantly, it does not
provide for any qualification on the purpose for the entry of these vessels, vehicles,
and aircraft into Philippine jurisdiction. The EDCA also permits the temporary
accommodation of personnel, again without any qualification as to the purpose of
their visit. The U.S. forces may also engage in communications activities including
the use of its own radio spectrum, similarly without any limitation as to the
purpose by which such communications shall be carried out. Further, within the
Agreed Locations, the U.S. can also preposition defense equipment, supplies, and
materiel over which the U.S. forces shall have exclusive use and control. Clearly,
the right to deploy weapons can be undertaken even if it is not in the pursuit of joint
activities for common security interests. These rights, granted to the U.S. under the
EDCA, do not contain an element of mutuality in the sense that mutuality is
reflected in the 1951 MDT and the 1998 VFA. As these rights go beyond the earlier
treaties and are, in fact, independent sources of rights and obligations between the
U.S. and the Philippines, they cannot be mere details of implementation of both
the 1951 MDT and the 1998 VFA.
Same; View that the Enhanced Defense Cooperation Agreement (EDCA)
cannot be considered to be a simple implementation of the
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1998 Visiting Forces Agreement (VFA). Rather, it is a continuation of the 1998
VFA under new dimensions. These dimensions should not and cannot be hidden
behind reaffirmations of existing 1998 VFA obligations.—While the EDCA affirms
the treatment of U.S. personnel and U.S. forces in the Philippines, it at the same
time introduces the Philippines’ obligation to recognize the authority
of U.S. Forces in the “Agreed Locations.” Under the EDCA, U.S. forces can
now preposition and store defense equipment, supplies, and materiel at Agreed
Locations. They shall have unimpeded access to Agreed Locations for all matters
relating to the prepositioning and storage of defense equipment, supplies, and
materiel. Lastly, the EDCA authorizes the U.S. forces to exercise all rights
and authorities within the Agreed Locations that are necessary for their
operational control or defense. In contrast, the 1998 VFA only refers to the tax and
duty-free entry of U.S. Government equipment in connection with the activities
during their visit. In the same manner, and despite being in a different class as
U.S. personnel and U.S. forces, U.S. contractors are also allowed “unimpeded
access” to the Agreed Locations when it comes to all matters relating to
the prepositioning and storage of defense equipment, supplies and
materiel.Thus, these groups of people (U.S. personnel, U.S. forces and U.S.
contractors) have been referred to in the EDCA not merely to implement the 1998
VFA, but to further their roles in the Agreed Locations that the EDCA authorizes.
From these perspectives, the EDCA cannot be considered to be a simple
implementation of the 1998 VFA. Rather, it is a continuation of the 1998 VFA
under new dimensions. These dimensions should not and cannot be hidden behind
reaffirmations of existing 1998 VFA obligations. These added dimensions reinforce
the idea of military bases, as it allows them access to the Agreed Locations that,
as I had earlier mentioned, is the cornerstone of the EDCA. From the legal end, the
obligations under the EDCA, not its policy declarations and
characterization, should be decisive in determining whether Section 25, Article
XVIII applies.
Same; View that the Enhanced Defense Cooperation Agreement (EDCA) is
thus a new agreement that touches on military bases, troops, and facilities beyond
the scope of the 1951 Mutual Defense Treaty (MDT) and the 1998 Visiting Forces
Agreement (VFA), and should be covered by a treaty pursuant to Article XVIII,
Section 25 and Article VII, Section 21, both of the 1987 Constitution.—The EDCA
is
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Saguisag vs. Ochoa, Jr.
thus a new agreement that touches on military bases, troops, and facilities
beyond the scope of the 1951 MDT and the 1998 VFA, and should be covered by a
treaty pursuant to Article XVIII, Section 25 and Article VII, Section 21, both of the
1987 Constitution. Without the referral and concurrence by the Senate, the EDCA
is constitutionally deficient and, hence, cannot be enforced in our country.
LEONEN, J., Dissenting Opinion:
 Foreign Policy; Security Alliance; Defense Cooperation; View that foreign
policy indeed includes security alliances and defense cooperation among states.—
Foreign policy indeed includes security alliances and defense cooperation among
states. In the conduct of negotiations and in the implementation of any valid and
binding international agreement, Article II of the Constitution requires: Section 2.
The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation, and amity
with all nations. . . . . Section 7. The State shall pursue an independent foreign
policy. In its relations with other states the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and the right to self-
determination.
Presidency; Judicial Review; View that the power of the President as
Commander-in-Chief and head of state is limited by the sovereign through
judicially determinable constitutional parameters.—Generally, the President’s
discretion is plenary in matters falling within executive functions. He is the chief
executive, having the power of control over all executive departments, bureaus,
and offices. Further, “by constitutional fiat and by the intrinsic nature of his office,
the President, as head of State, is the sole organ and authority in the external
affairs of the country [and] [i]n many ways, the President is the chief architect of
the nation’s foreign policy.” The President is also the Commander-in-Chief of all
armed forces of the Philippines. He has the power to “call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion . . . suspend the
privilege of the writ of habeas corpus or place the Philippines or any part thereof
under martial law” subject to the conditions and requisites under the provision.
However, the President’s discretion to allow our participation in the use of force —
whether by commit-
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ting our own military assets and personnel or by allowing our territory to be
used as waypoints, refueling or staging areas — is also constrained by the
Constitution. In this sense, the power of the President as Commander-in-Chief and
head of state is limited by the sovereign through judicially determinable
constitutional parameters.
Foreign Military Bases; International Agreements; View that the prohibition
in Article XVIII, Section 25 relates only to international agreements involving
foreign military bases, troops, or facilities.—The prohibition in Article XVIII,
Section 25 relates only to international agreements involving foreign military
bases, troops, or facilities. It does not prohibit the President from entering into
other types of agreements that relate to other aspects of his powers as Commander-
in-Chief.
Same; View that there is nothing in Article XVIII, Section 25 that defines the
extent and scope of the presence of foreign military bases, troops, or facilities,
thereby justifying a distinction between their initial entry and subsequent
activities.—There is nothing in Article XVIII, Section 25 that defines the extent
and scope of the presence of foreign military bases, troops, or facilities, thereby
justifying a distinction between their initial entry and subsequent activities. Its
very structure shows that Article XVIII, Section 25 is not a mere gateway for the
entry of foreign troops or facilities into the Philippines for them to carry out any
activity later on. The provision contains measures designed to protect our country
in the broader scheme of international relations. Military presence shapes both
foreign policy and political relations. War — or the threat thereof through the
position of troops, basing, and provision of military facilities — is an extension of
politic, thus: The use of military force is a means to a higher end — the political
object. War is a tool that policy uses to achieve its objectives and, as such, has a
measure of rational utility. So, the purpose for which the use of force is intended
will be the major determinant of the course and character of a war. As Clausewitz
explains, war “is controlled by its political object,” which will set its course,
prescribe the scale of means and effort which is required, and makes its influence
felt throughout down to the smallest operational detail.
Enhanced Defense Cooperation Agreement; View that the Enhanced Defense
Cooperation Agreement (EDCA) was negotiated in
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private between representatives of the President and the United States
(U.S.).—The EDCA was negotiated in private between representatives of the
President and the United States. The complete text of the negotiations was
presented to the public in time for the visit of the President of the United States.
During its presentation, the President’s representatives took the position that no
further public discussion would be held that might affect the terms of the EDCA.
The President presented the EDCA as a final product withdrawn from Senate or
Congressional input. The President curtailed even the possibility of full public
participation through a Congressional Resolution calling for a referendum on this
matter.
Same; Foreign Policy; View that by allowing the entry of United States (U.S.)
military personnel, their deployment into undefined missions here and abroad, and
their use of military assets staged from our territory against their present and future
enemies based on a general provision in the Visiting Forces Agreement (VFA), the
majority now undermines the measures built into our present Constitution to allow
the Senate, Congress and our People to participate in the shaping of foreign
policy.—By allowing the entry of United States military personnel, their
deployment into undefined missions here and abroad, and their use of military
assets staged from our territory against their present and future enemies based on
a general provision in the VFA, the majority now undermines the measures built
into our present Constitution to allow the Senate, Congress and our People to
participate in the shaping of foreign policy. The EDCA may be an agreement that
“deepens defense cooperation” between the Philippines and the United States.
However, like the 1947 Military Bases Agreement, it is the agreement more than
any other that will extensively shape our foreign policy.
 Constitutional Law; Treaties; Executive Agreements; View that whether an
international agreement is to be regarded as a treaty or as an executive agreement
depends on the subject matter covered by and the temporal nature of the
agreement.—That the President may enter into international agreements as chief
architect of the Philippines’ foreign policy has long been acknowledged. However,
whether an international agreement is to be regarded as a treaty or as an executive
agreement depends on the subject matter covered by and the temporal nature of
the agreement. Commissioner of Customs v. Eastern Sea Trading, 3 SCRA 351
(1961), differentiated interna-
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Saguisag vs. Ochoa, Jr.
tional agreements that require Senate concurrence from those that do not:
International agreements involving political issues or changes of national policy
and those involving international arrangements of a permanent character usually
take the form of treaties. But international agreements embodying adjustments of
detail carrying out well-established national policies and traditions and those
involving arrangements of a more or less temporary nature usually take the form
of executive agreements.
Foreign Military Bases; View that the prohibition against “foreign military
bases, troops, or facilities,” unless covered by treaty or allowed through a
referendum, becomes effective “after the expiration in 1991 of the Agreement . . .
concerning Military Bases.”—While these provisions in the 1951 Mutual Defense
Treaty could reasonably be interpreted to include activities done jointly by the
Philippines and the United States, nothing in International Law nor in the
Constitution can be reasonably read as referring to this treaty for the
authorization for “foreign military bases, troops, or facilities” after the ratification
of the 1987 Constitution. Again, the constitutional provision reads: 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. (Emphasis supplied) There is a time stamp to the obligation
under this provision. The prohibition against “foreign military bases, troops, or
facilities,” unless covered by treaty or allowed through a referendum, becomes
effective “after the expiration in 1991 of the Agreement . . . concerning Military
Bases.” The treaty about to expire refers to the 1947 Military Bases Agreement as
amended. This was still in effect at the time of the drafting, submission, and
ratification of the 1987 Constitution.
Constitutional Law; Foreign Military Bases; Mutual Defense Treaty; View
that the 1951 treaty is not the treaty contemplated in Article XVIII, Section 25.—
The 1951 Mutual Defense Treaty was in effect at the time of the ratification of the
Constitution in 1987. It was also in effect even after the expiration of the Military
Bases
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Saguisag vs. Ochoa, Jr.
Agreement in 1991. We could reasonably assume that those who drafted and
ratified the 1987 Constitution were aware of this legal situation and of the broad
terms of the 1951 treaty yet did not expressly mention the 1951 Mutual Defense
Treaty in Article XVIII, Section 25. We can conclude, with sturdy and unassailable
logic, that the 1951 treaty is not the treaty contemplated in Article XVIII, Section
25.
Treaties; Rebus Sic Stantibus; View that Article 62 of the Vienna Convention
on the Law of Treaties provides for the principle of “rebus sic stantibus,” in that a
fundamental change of circumstances may be a ground to terminate or withdraw
from a treaty.—Parenthetically, Article 62 of the Vienna Convention on the Law of
Treaties provides for the principle of “rebus sic stantibus,” in that a fundamental
change of circumstances may be a ground to terminate or withdraw from a treaty.
Dean Merlin M. Magallona is of the view that there has been a fundamental
change in circumstances that allows the Philippines to terminate the 1951 Mutual
Defense Treaty. Although we should acknowledge this suggestion during the oral
arguments by petitioners, we do not need to go into such an issue and at this time
to be able to resolve the controversies in this case. We await a case that will provide
a clearer factual backdrop properly pleaded by the parties. In addition, the Mutual
Defense Treaty is not the treaty contemplated by Article XVIII, Section 25 on
account of its subject matter. In paragraph 5 of its Preamble, the Mutual Defense
Treaty articulates the parties’ desire “to strengthen their present efforts to
collective defense for the preservation of peace and security pending the
development of a more comprehensive system of regional security in the Pacific
Area.”
Same; Visiting Forces Agreement; View that the Visiting Forces Agreement
(VFA) cannot also be said to be the treaty required in Article XVIII, Section 25. This
is because the United States (U.S.), as the other contracting party, has never treated
it as such under its own domestic laws.—The VFA cannot also be said to be the
treaty required in Article XVIII, Section 25. This is because the United States, as
the other contracting party, has never treated it as such under its own domestic
laws. The VFA has the same status as that of the 1947 Military Bases Agreement
in that it is merely an executive agreement on the part of United States: As
articulated by Constitutional Commissioner Blas F. Ople in the 1986
Constitutional Com-
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Saguisag vs. Ochoa, Jr.
mission deliberations on this provision, the 1947 RP-US Military Bases
Agreement was ratified by the Philippine Senate, but not by the United
States Senate. In the eyes of Philippine law, therefore, the Military Bases
Agreement was a treaty, but by the laws of the United States, it was a mere
executive agreement. This asymmetry in the legal treatment of the Military
Bases Agreement by the two countries was believed to be a slur to our
sovereignty.
Same; View that this court’s interpretation of a treaty under Article XVIII,
Section 25 in BAYAN (Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449
(2000), which did away with the requirement that the agreement be recognized as a
treaty by the other contracting party, has resulted in an absurd situation of political
asymmetry between the United States (U.S.) and the Philippines.—This court’s
interpretation of a treaty under Article XVIII, Section 25 in BAYAN (Bagong
Alyansang Makabayan) v. Zamora, 342 SCRA 449 (2000), which did away with the
requirement that the agreement be recognized as a treaty by the other contracting
party, has resulted in an absurd situation of political asymmetry between the
United States and the Philippines. A relationship where both parties are on equal
footing must be demanded, and from one state to another. The Philippine
government must be firm in requiring that the United States establish stability in
its international commitment, both by legislation and jurisprudence. The doctrine
laid down in Bayan, insofar as the VFA is concerned, should now be revisited in
light of new circumstances and challenges in foreign policy and international
relations.
Executive Agreements; Enhanced Defense Cooperation Agreement; View that
an executive agreement merely provides for the detailed adjustments of national
policies or principles already existing in other treaties, statutes, or the Constitution;
The Enhanced Defense Cooperation Agreement (EDCA) contains significant and
material obligations not contemplated by the Visiting Forces Agreement (VFA). As
an executive agreement, it cannot be given any legal effect.—As discussed earlier,
an executive agreement merely provides for the detailed adjustments of national
policies or principles already existing in other treaties, statutes, or the
Constitution. It involves only the enforcement of clear and specific provisions of
the Constitution, law, or treaty. It cannot amend nor invalidate an existing statute,
treaty, or provision in the Constitution. It includes agreements that
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294 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
are of a temporary nature. This is not the case with the EDCA. The EDCA
contains significant and material obligations not contemplated by the VFA. As an
executive agreement, it cannot be given any legal effect.
Enhanced Defense Cooperation Agreement; Foreign Military Bases; View that
United States (U.S.) military forces will not only be allowed to “visit” Philippine
territory to do a transient military training exercise with their Philippine
counterparts.—United States military forces will not only be allowed to “visit”
Philippine territory to do a transient military training exercise with their
Philippine counterparts. They are also allowed to execute, among others, the
following scenarios: One: Parts of Philippine territory may be used as staging areas
for special or regular United States military personnel for intervention in conflict
areas in the Southeast Asian region. This can be in the form of landing rights given
to their fighter jets and stealth bombers or way stations for SEALS or other special
units entering foreign territory in states not officially at war with the
Philippines. Two: Parts of Philippine territory may be used to supplement overt
communication systems of the United States forces. For instance, cyberwarfare
targeting a state hostile to the United States can be launched from any of the
Agreed Locations to pursue their interests even if this will not augur well to
Philippine foreign policy. Three: Parts of Philippine territory may be used to plan,
deploy, and supply covert operations done by United States contractors such as
Blackwater and other mercenary groups that have been used by the United States
in other parts of the world. The EDCA covers these types of operations within and
outside Philippine territory. Again, the consequences to Philippine foreign policy
in cases where targets are found in neighboring countries would be immeasurable.
The Visiting Forces Agreement does not cover these sample activities. Nor does it
cover United States contractors.
Same; Same; Agreed Locations; View that blanket authority over Agreed
Locations is granted under Article VI, Section 3 of the Enhanced Defense
Cooperation Agreement (EDCA). The United States (U.S.) forces are given a broad
range of powers with regard to the Agreed Locations that are “necessary for their
operational control or defense.”—Blanket authority over Agreed Locations is
granted under Article VI, Section 3 of the EDCA. The United States forces are
given a broad range of powers with regard to the Agreed Loca-
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Saguisag vs. Ochoa, Jr.
tions that are “necessary for their operational control or defense.” This
authority extends to the protection of United States forces and contractors. In
addition, the United States is merely obligated to coordinate with Philippine
authorities the measures they will take in case they deem it necessary to take
action.
Same; Same; Same; Visiting Forces Agreement; View that what is clear is that
the Agreed Locations become a platform for the United States (U.S.) to execute its
new military strategy and strengthen its presence in the Asia-Pacific, which is
clearly outside the coverage of the Visiting Forces Agreement (VFA).—If, indeed, the
goal is only to enhance mutual defense capabilities under the Mutual Defense
Treaty through conduct of joint military exercises authorized by the VFA, then it
behooves this court to ask the purpose of providing control and authority over
Agreed Locations here in the Philippines when it is outside the coverage of both
the Mutual Defense Treaty and the VFA. Through a vague reference to the VFA,
respondents fail to establish how the EDCA merely implements the VFA. They
cannot claim that the provisions of the EDCA merely make use of the authority
previously granted under the VFA. What is clear is that the Agreed Locations
become a platform for the United States to execute its new military strategy and
strengthen its presence in the Asia-Pacific, which is clearly outside the coverage of
the VFA.
 Same; Same; Same; View that the Enhanced Defense Cooperation Agreement
(EDCA) authorizes the use of Philippine territory as bases of operations. Although
not as permanent as those set up pursuant to the 1947 Military Bases Agreement
(MBA), they are still foreign military bases within the contemplation of Article
XVIII, Section 25 of the Constitution; Ownership of the Agreed Locations under the
EDCA is a diluted concept, with the Philippine government devoid of any authority
to set the parameters for what may and may not be conducted within the confines
of these areas.—The EDCA authorizes the use of Philippine territory as bases of
operations. Although not as permanent as those set up pursuant to the 1947
Military Bases Agreement, they are still foreign military bases within the
contemplation of Article XVIII, Section 25 of the Constitution. The development
and use of these Agreed Locations are clearly within the discretion of the United
States. The retention of ownership by the Philippines under Article V(1) of the
EDCA does not temper the wide latitude accorded to the other contracting party.
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296 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
At best, the United States’ only obligation is to consult and coordinate with
our government. Under the EDCA, the consent of the Philippine government does
not extend to the operations and activities to be conducted by the United States
forces and contractors. Operational control remains solely with the United States
government. The agreement did not create a distinction between domestic and
international operations. Ownership of the Agreed Locations under the EDCA is a
diluted concept, with the Philippine government devoid of any authority to set the
parameters for what may and may not be conducted within the confines of these
areas.
Same; Same; View that the Enhanced Defense Cooperation Agreement
(EDCA) has an open-ended duration. Despite having an initial term of ten (10)
years, Article XII(4) specifically provides for the automatic continuation of the
agreement’s effectivity until a party communicates its intent to terminate.—The
EDCA has an open-ended duration. Despite having an initial term of 10 years,
Article XII(4) specifically provides for the automatic continuation of the
agreement’s effectivity until a party communicates its intent to terminate. The
purpose of the Agreed Locations is also open-ended. At best, its definition and
description of rights provide that the areas shall be for the use of United States
forces and contractors. However, short of referring to Agreed Locations as bases,
the EDCA enumerates activities that tend to be military in nature, such as
bunkering of vessels, pre-positioning of equipment, supplies, and materiel, and
deploying forces and materiel. The United States is also allowed to undertake the
construction of permanent facilities, as well as to use utilities and its own
telecommunications systems.
Same; Visiting Forces Agreement; Treaties; View that the Enhanced Defense
Cooperation Agreement (EDCA) amends the Visiting Forces Agreement (VFA).
Since the VFA is a treaty, the EDCA cannot be implemented; Treaties such as the
VFA cannot be amended by an executive agreement.—The EDCA amends the VFA.
Since the VFA is a treaty, the EDCA cannot be implemented. Treaties, being of the
same status as that of municipal law, may be modified either by another statute
or by the Constitution itself. Treaties such as the VFA cannot be amended by an
executive agreement.
Remedial Law; Civil Procedure; Judgments; View that ruling on abstract
cases presents the danger of foreclosing litigation between
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real parties, and rendering advisory opinions presents the danger of a court
that substitutes its own imagination and predicts facts, acts, or events that may or
may not happen.—It is not this court’s duty to “rule on abstract and speculative
issues barren of actual facts.” Ruling on abstract cases presents the danger of
foreclosing litigation between real parties, and rendering advisory opinions
presents the danger of a court that substitutes its own imagination and predicts
facts, acts, or events that may or may not happen. Facts based on judicial proof
must frame the court’s discretion, as “[r]igor in determining whether controversies
brought before us are justiciable avoids the counter majoritarian difficulties
attributed to the judiciary.” Abstract cases include those where another political
department has yet to act. In other words, a case not ripe for adjudication is not
yet a concrete case.
Political Law; Political Question Doctrine; View that in Diocese of Bacolod v.
COMELEC, 747 SCRA 1 (2015), the Supreme Court (SC) held that the political
question doctrine never precludes this court’s exercise of its power of judicial review
when the act of a constitutional body infringes upon a fundamental individual or
collective right.—In Diocese of Bacolod v. COMELEC, 747 SCRA 1 (2015), this
court held that the political question doctrine never precludes this court’s exercise
of its power of judicial review when the act of a constitutional body infringes upon
a fundamental individual or collective right. However, this will only be true if there
is no other constitutional body to whom the discretion to make inquiry is
preliminarily granted by the sovereign. Ruling on the challenge to the content of
the EDCA will preclude and interfere with any future action on the part of the
Senate as it inquires into and deliberates as to whether it should give its
concurrence to the agreement or whether it should advise the President to reopen
negotiations to amend some of its provisions. It is the Senate, through Article VII,
Section 21 in relation to Article XVIII, Section 25, that was given the discretion to
make this initial inquiry exclusive of all other constitutional bodies, including this
court. A policy of deference and respect for the allocation of such power by the
sovereign to a legislative chamber requires that we refrain from making clear and
categorical rulings on the constitutional challenges to the content of the EDCA.
Constitutional Law; Enhanced Defense Cooperation Agreement; View that
while the Enhanced Defense Cooperation Agreement (EDCA) is a formal and official
memorial of the results of negotia-
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Saguisag vs. Ochoa, Jr.
tions between the Philippines and the United States (U.S.), it is not yet
effective until the Senate concurs or there is compliance with Congressional action
to submit the agreement to a national referendum in accordance with Article XVIII,
Section 25 of the Constitution.—The judiciary has the duty to ensure that the acts
of all branches of government comply with the fundamental nature of the
Constitution. While the EDCA is a formal and official memorial of the results of
negotiations between the Philippines and the United States, it is not yet effective
until the Senate concurs or there is compliance with Congressional action to
submit the agreement to a national referendum in accordance with Article XVIII,
Section 25 of the Constitution.
Same; View that by abbreviating the constitutional process, the Supreme
Court (SC) makes itself vulnerable to a reasonable impression that we do not have
the courage to enforce every word, phrase, and punctuation in the Constitution
promulgated by our People.—By abbreviating the constitutional process, this court
makes itself vulnerable to a reasonable impression that we do not have the courage
to enforce every word, phrase, and punctuation in the Constitution promulgated
by our People. We will stand weak, as an institution and by implication as a state,
in the community of nations. In clear unequivocal words, the basic instrument
through which we exist requires that we interpret its words to make real an
independent foreign policy. It requires measures be fully publicly discussed before
any foreign resource capable of making war with our neighbors and at the
command of a foreign sovereign — foreign military bases, troops and facilities —
becomes effective.
Mutual Defense Treaty; Visiting Forces Agreement; View that the 1951
Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA) was in
effect when the Chinese invaded certain features within our Exclusive Economic
Zone (EEZ) in the West Philippine Sea. The Americans did not come to our aid; The
commitment of the United States (U.S.) remains ambiguous. The U.S.’ statement is
that it will not interfere in those types of differences we have with China, among
others.—The 1951 Mutual Defense Treaty and the Visiting Forces Agreement was
in effect when the Chinese invaded certain features within our Exclusive Economic
Zone in the West Philippine Sea. The Americans did not come to our aid. The
President of the United States visited and, on the occasion of that visit, our own
President announced the completion of the EDCA. No clear,
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unequivocal, and binding commitment was given with respect to the
applicability of the Mutual Defense Treaty to the entirety of our valid legal claims
in the West Philippine Sea. The commitment of the United States remains
ambiguous. The United States’ statement is that it will not interfere in those types
of differences we have with China, among others.
SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Harry L. Roque, Jr., Gilbert Teruel Andres, Romel R. Bagares, Ethel C.
Avisado and Evalyn Ursua for petitioners in G.R. No. 212426.
Rachel F. Pastores, Amylyn B. Sato, Francis Anthony P. Principe, Sandra Jill
S. Santos, Carlos A. Montemayor, Maria Kristina C. Conti and Maneeka Asistol
Sarza for petitioners in G.R. No. 212444.
Remigio D. Saladero, Jr., Noel V. Neri and Vicente Jaime M. Topacio for
petitioners-in-intervention Kilusang Mayo Uno, et al.
Rene A.V. Saguisag petitioner in G.R. No. 212426 and for petitioner-
intervenor Rene A.Q. Saguisag, Jr.
SERENO, CJ.:
The petitions1 before this Court question the constitutionality of the Enhanced
Defense Cooperation Agreement (EDCA) between the Republic of the Philippines
and the United States of America (U.S.). Petitioners allege that respondents
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when they entered into EDCA with the U.S.,2 claiming that the instrument
violated multiple consti-
_______________
1 Petition of Saguisag, et al., Rollo (G.R. No. 212426, Vol. I),
pp. 3-66; Petition of Bayan, et al., Rollo (G.R. No. 212444, Vol. I), pp. 3-101.
2 Petition of Saguisag, et al., p. 5, Rollo (G.R. No. 212426, Vol. I), p. 7; Petition
of Bayan, et al., p. 5, Rollo (G.R. No. 212444, Vol. I), p. 7.
300
300 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
tutional provisions.3 In reply, respondents argue that petitioners lack standing
to bring the suit. To support the legality of their actions, respondents invoke the
1987 Constitution, treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the outset
the basic parameters of the constitutional powers and roles of the President and
the Senate in respect of the above issues. A more detailed discussion of these
powers and roles will be made in the latter portions.
I. Broad Constitutional Context of the Powers of the President: Defense,
Foreign Relations, and EDCA
A. The Prime Duty of the
State and the Consolida-
tion of Executive Power
in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang
buong katapatan at sigasig ang aking mga tungkulin bilang Pangulo (o
Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas,
pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang mga
batas nito, magiging makatarungan sa bawat tao, at itatalaga ang aking sarili sa
paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
– Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang
Batas5
_______________
3 Principally the following provisions under the Constitution: Art. VII, Sec.
21; Art. XVIII, Sec. 25; Art. I; Art. II, Secs. 2, 7, & 8; Art. VI, Sec. 28(4); and Art.
VIII, Sec. 1. See Petition of Saguisag, et al., pp. 23-59, Rollo (G.R. No. 212426, Vol.
I), pp. 25-61; Petition of Bayan, et al., Rollo pp. 23-93 (G.R. No. 212444, Vol. I), pp.
25-95.
4 Memorandum of the OSG, pp. 8-38, Rollo (G.R. No. 212426, Vol. I), pp. 438-
468.
5 The Protocol, Ceremony, History, and Symbolism of the Presidential
Inauguration, The Presidential Museum and Library, available at
<http://malacanang.gov.ph/1608-the-protocol-ceremony-
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The 1987 Constitution has “vested the executive power in the President of the
Republic of the Philippines.”6 While the vastness of the executive power that has
been consolidated in the person of the President cannot be expressed fully in one
provision, the Constitution has stated the prime duty of the government, of which
the President is the head:
The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or civil service.7 (Emphases
supplied)
B. The duty to protect the
territory and the citizens
of the Philippines, the
power to call upon the
people to defend the
State, and the President
as Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly and
effectively throughout the whole territory of the Philippines in accordance with the
constitutional provision on national territory. Hence, the President of the
Philippines, as the sole repository of executive power, is the guardian of the
Philippine archipelago, including all the islands and waters embraced therein and
all other territories over which it has sovereignty or jurisdiction. These territories
consist of its terrestrial, fluvial, and aerial domains; including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine areas; and the
waters around, between,
_______________
history-and-symbolism-of-the-presidential-inauguration> (last visited 5 Nov.
2015).
6 Constitution, Art. VII, Sec. 1.
7 Id., Art. II, Sec. 4.
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302 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
and connecting the islands of the archipelago, regardless of their breadth and
dimensions.8
To carry out this important duty, the President is equipped with authority over
the Armed Forces of the Philippines (AFP),9 which is the protector of the people
and the state. The AFP’s role is to secure the sovereignty of the State and the
integrity of the national territory.10 In addition, the Executive is constitutionally
empowered to maintain peace and order; protect life, liberty, and property; and
promote the general welfare.11 In recognition of these powers, Congress has
specified that the President must oversee, ensure, and reinforce our defensive
capabilities against external and internal threats12 and, in the same vein, ensure
that the country is adequately prepared for all national and local emergencies
arising from natural and man-made disasters.13
To be sure, this power is limited by the Constitution itself. To illustrate, the
President may call out the AFP to prevent or suppress instances of lawless
violence, invasion or rebellion,14 but not suspend the privilege of the writ of habeas
corpus for a period exceeding 60 days, or place the Philippines or any part thereof
under martial law exceeding that same span. In the exercise of these powers, the
President is also duty-bound to submit a report to Congress, in person or in
writing, within 48 hours from the proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus; and
_______________
8 Id., Art. I.
9 Id., Art. II, Sec. 3.
10 Id.
11 Id., Art. II, Sec. 5.
12 Id., Art. VII, Sec. 18, in relation to Art. II, Secs. 3, 4 & 7; Executive Order
No. 292 (Administrative Code of 1987), Book IV (Executive Branch), Title VIII
(National Defense), Secs. 1, 15, 26 & 33 [hereinafter Administrative Code of 1987].
 13 Administrative Code of 1987, Book IV (Executive Branch), Title XII (Local
Government), Sec. 3(5).
14 Constitution, Art. VII, Sec. 18.
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Congress may in turn revoke the proclamation or suspension. The same
provision provides for the Supreme Court’s review of the factual basis for the
proclamation or suspension, as well as the promulgation of the decision within 30
days from filing.
C. The power and duty to
conduct foreign relations
The President also carries the mandate of being the sole organ in the conduct
of foreign relations.15 Since every state has the capacity to interact with and
engage in relations with other sovereign states,16it is but logical that every state
must vest in an agent the authority to represent its interests to those other
sovereign states.
The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information
and can decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most confidential information
about foreign countries for
_______________
15 Id., Art. VII, Sec. 1, in relation to Administrative Code of 1987, Book IV
(Executive Branch), Title I (Foreign Affairs), Secs. 3(1) and 20; Akbayan Citizens
Action Party (“AKBAYAN”) v. Aquino, 580 Phil. 422; 558 SCRA 468
(2008); Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303; 462 SCRA
622 (2005); People’s Movement for Press Freedom v. Manglapus, G.R. No. 84642,
13 September 1988 (unreported) (citing United States v. Curtiss-Wright Export
Corp.,299 U.S. 304 [1936]); Bernas, Joaquin, Foreign Relations in Constitutional
Law, p. 101 (1995); Cortes, Irene R., the Philippine Presidency: A Study of
Executive Power, p. 187 (1966); Sinco, Vicente G., Philippine Political Law:
Principles and Concepts, p. 297 (10th ed., 1954).
16 See 1933 Montevideo Convention on the Rights and Duties of States, Art.
1, 165 LNTS 19; Crawford, James, The Creation of States in International Law,
p. 61 (2nd ed. 2007).
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304 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity of
his actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora
of other problems with equally undesirable consequences.17
The role of the President in foreign affairs is qualified by the Constitution in
that the Chief Executive must give paramount importance to the sovereignty of
the nation, the integrity of its territory, its interest, and the right of the sovereign
Filipino people to self-determination.18 In specific provisions, the President’s
power is also limited, or at least shared, as in Section 2 of Article II on the conduct
of war; Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial
review of executive acts; Sections 4 and 25 of Article XVIII on treaties and
international agreements entered into prior to the Constitution and on the
presence of foreign military troops, bases, or facilities.
D. The relationship between
the two major presiden-
tial functions and the
role of the Senate
_______________
17 Vinuya v. Romulo, 633 Phil. 538, 570; 619 SCRA 533, 561 (2010) (quoting
the Dissenting Opinion of then Assoc. Justice Reynato S. Puno in Secretary of
Justice v. Lantion, 379 Phil. 165, 233-234; 322 SCRA 160, 221-222 [2000]).
18 Constitution, Art. II, Sec. 7.
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Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power, however,
does not crystallize into absolute discretion to craft whatever instrument the Chief
Executive so desires. As previously mentioned, the Senate has a role in ensuring
that treaties or international agreements the President enters into, as
contemplated in Section 21 of Article VII of the Constitution, obtain the approval
of two-thirds of its members.
 Previously, treaties under the 1973 Constitution required ratification by a
majority of the Batasang Pambansa,19 except in instances wherein the President
“may enter into international treaties or agreements as the national welfare and
interest may require.”20This left a large margin of discretion that the President
could use to bypass the Legislature altogether. This was a departure from the 1935
Constitution, which explicitly gave the President the power to enter into treaties
only with the concurrence of two-thirds of all the Members of the Senate.21 The
1987 Constitution returned the Senate’s power22 and, with it, the legislative’s
traditional role in foreign affairs.23
_______________
19 Id. (1973, as amended), Art. VIII, Sec. 14(1).
20 Id. (1973, as amended), Art. VIII, Sec. 16.
21 Id. (1935), Art. VII, Sec. 10(7).
22 Id., Art. VII, Sec. 21.
23 Quoth the Court: “For 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. In this sense,
the Senate partakes a principal, yet delicate, role in keeping the principles of
separation of powers and of checks and balances alive and vigilantly ensures that
these cherished rudiments remain true to their form in a democratic government
such as ours. The Constitution thus animates, through this treaty-concurring
power of the Senate, a healthy system of checks and balances indis-
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306 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
The responsibility of the President when it comes to treaties and international
agreements under the present Constitution is therefore shared with the Senate.
This shared role, petitioners claim, is bypassed by EDCA.
II. Historical Antecedents of EDCA
A. U.S. takeover of Spanish
colonization and its mili-
tary bases, and the tran-
sition to Philippine inde-
pendence
The presence of the U.S. military forces in the country can be traced to their
pivotal victory in the 1898 Battle of Manila Bay during the Spanish-American
War.24 Spain relinquished its sovereignty over the Philippine Islands in favor of
the U.S. upon its formal surrender a few months later. 25 By 1899, the Americans
had consolidated a military administration in the archipelago.26
When it became clear that the American forces intended to impose colonial
control over the Philippine Islands, General Emilio Aguinaldo immediately led the
Filipinos into an all-out war against the U.S.27 The Filipinos were ultimately
defeated in the Philippine-American War, which lasted until 1902 and
_______________
pensable toward our nation’s pursuit of political maturity and
growth.” Bayan(Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623; 342
SCRA 449 (2000).
24 Foreign Service Institute, Agreements on United States Military Facilities
in Philippine Military Bases, 1947-1985, p. ix (Pacifico A. Castro, revised ed.,
1985).
25 Treaty of Peace Between the United States of America and the Kingdom of
Spain, 10 Dec. 1898, 30 US Stat. 1754, T.S. No. 343 (1898) (entered into force 11
Apr. 1899).
26 Foreign Service Institute, supra.
27 Id.
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Saguisag vs. Ochoa, Jr.
led to the downfall of the first Philippine Republic.28 The Americans henceforth
began to strengthen their foothold in the country.29 They took over and expanded
the former Spanish Naval Base in Subic Bay, Zambales, and put up a cavalry post
called Fort Stotsenberg in Pampanga, now known as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained
ground, the U.S. manifested the desire to maintain military bases and armed
forces in the country.31 The U.S. Congress later enacted the Hare-Hawes-Cutting
Act of 1933, which required that the proposed constitution of an independent
Philippines recognize the right of the U.S. to maintain the latter’s armed forces
and military bases.32 The Philippine Legislature rejected that law, as it also gave
the U.S. the power to unilaterally designate any part of Philippine territory as a
permanent military or naval base of the U.S. within two years from complete
independence.33
_______________
28 Id.
29 Id.
30 Id.
31 Id.; Simbulan, Roland G., The Bases of our Insecurity: A Study of the US
Military Bases in the Philippines, p. 13 (2nd ed. 1985).
32 Hare-Hawes-Cutting Act, ch. 11, Sec. 2(1), 47 US Stat. 761 (1933).
According to the law: “Sec. 2. The constitution formulated and drafted shall
be republican in form, shall contain a bill of rights, and shall, either as a part
thereof or in an ordinance appended thereto, contain provisions to the
effect that, pending the final and complete withdrawal of the
sovereignty of the United States over the Philippine Islands — (1) The Philippine
Islands recognizes the right of the United States x x x to maintain military
and other reservations and armed forces in the Philippinesx x x.”
33 Hare-Hawes-Cutting Act, Secs. 5 & 10. According to the law: “Sec. 5. All
the property and rights which may have been acquired in the Philippine
Islands by the United States under the treaties mentioned in the first section
of this Act, except such land or other property as has heretofore been
designated by
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308 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
The U.S. Legislature subsequently crafted another law called the Tydings-
McDuffie Act or the Philippine Independence Act of 1934. Compared to the old
Hare-Hawes-Cutting Act, the new law provided for the surrender to the
Commonwealth Government of “all military and other reservations” of the U.S.
government in the Philippines, except “naval reservations and refueling
stations.”34 Furthermore, the law au-
_______________
the President of the United States for military and other reservations
of the Government of the United States x x x are hereby granted to the
government of the Commonwealth of the Philippine Islands when constituted.
x x x x.” “Sec. 10. On the 4th day of July, immediately following the expiration
of a period of ten years from the date of the inauguration of the new
government under the constitution provided for in this Act, the President of
the United States shall by proclamation withdraw and surrender all right
of possession, supervision, jurisdiction, control, or sovereignty then existing and
exercised by the United States in and over the territory and people of the
Philippine Islands, including all military and other reservations of the
Government of the United States in the Philippines (except such land or
property reserved under Section 5 as may be redesignated by the
President of the United States not later than two years after the date of such
proclamation).” See Foreign Service Institute, supra note 24; Simbulan, supra note
31.
34 Philippine Independence Act, US Pub. L. No. 73-127, Secs. 5 & 10, 48 US
Stat. 456 (1934) [hereinafter Philippine Independence Act]. According to the law:
“SEC. 10. (a) On the 4th day of July immediately following the expiration
of a period of ten years from the date of the inauguration of the new
governmentunder the constitution provided for in this Act the President of the
United States shall by proclamation withdraw and surrender all right of
possession, supervision, jurisdiction, control, or sovereignty then existing and
exercised by the United States in and over the territory and people of the
Philippine Islands, including all military and other reservations of the
Government of the United States in the Philippines (except such naval
reservations and fueling stations as are reservedunder Section 5) x x x.”
See Foreign Service Institute, id.
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309 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
thorized the U.S. President to enter into negotiations for the adjustment and
settlement of all questions relating to naval reservations and fueling stations
within two years after the Philippines would have gained independence.35 Under
the Tydings-McDuffie Act, the U.S. President would proclaim the American
withdrawal and surrender of sovereignty over the islands 10 years after the
inauguration of the new government in the Philippines.36This law eventually led
to the promulgation of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed. 37 At the height of
the Second World War, the Philippine and the U.S. Legislatures each passed
resolutions authorizing their respective Presidents to negotiate the matter of
retaining military bases in the country after the planned withdrawal of the
U.S.38 Subsequently, in 1946, the countries entered into the Treaty of General
Relations, in which the U.S. relinquished all control and sovereignty over the
Philippine Islands, except the areas that would be covered by the American
military bases in the country.39 This treaty eventually led
_______________
35 Philippine Independence Act, Secs. 5 & 10; Foreign Service Institute, id.
36 Philippine Independence Act, Sec. 10.
37 Foreign Service Institute, supra note 24 at p. ix; Simbulan, supra note 31 at
pp. 13-14.
38 See Agreement Between the Republic of the Philippines and the United
States of America Concerning Military Bases, preamble, 14 Mar. 1947, 43 UNTS
271 (entered into force 26 Mar. 1947) [hereinafter 1947 Military Bases
Agreement]; Foreign Service Institute, id.
39 Treaty of General Relations between the Republic of the Philippines and
the United States of America, Art. I, 4 Jul. 1946, 7 UNTS 3 (1946) (entered into
force 22 Oct. 1946) [hereinafter 1946 Treaty of General Relations]. According to
the treaty: “The United States of America agrees to withdraw and surrender,
and does hereby withdraw and surrender, all rights of possession,
supervision, jurisdiction, control or sovereignty existing and exercised by the
United States of America in and over the territory and the
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310 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
 to the creation of the post-colonial legal regime on which would hinge the
continued presence of U.S. military forces until 1991: the Military Bases
Agreement (MBA) of 1947, the Military Assistance Agreement of 1947, and the
Mutual Defense Treaty (MDT) of 1951.40
B. Former legal regime on
the presence of U.S. armed
forces in the territory of
an independent Philip-
pines (1946-1991)
Soon after the Philippines was granted independence, the two countries
entered into their first military arrangement pursuant to the Treaty of General
Relations — the 1947 MBA.41 The Senate concurred on the premise of “mutuality
of security interest,”42 which provided for the presence and operation of 23 U.S.
military bases in the Philippines for 99 years or until the year 2046. 43 The treaty
also obliged the Philippines to negotiate with the U.S. to allow the latter to
_______________
people of the Philippine Islands, except the use of such bases, necessary
appurtenances to such bases, and the rights incident thereto, as the United
States of America, by agreement with the Republic of the Philippines may
deem necessary to retain for the mutual protection of the Republic of the
Philippines and of the United States of America. x x x.” The Philippine Senate
concurred in this treaty (S. Res. 11, 1st Cong. [1946]). See also: Nicolas v.
Romulo, 598 Phil. 262; 578 SCRA 438 (2009).
40 Foreign Service Institute, supra note 24 at pp. x-xi; Bayan (Bagong
Alyansang Makabayan) v. Zamora, supra note 23.
41 1947 Military Bases Agreement.
42 S. Res. 29, 1st Cong. (1946); Philippine instrument of ratification was
signed by the President on 21 Jan. 1948 and the treaty entered into force on 26
Mar. 1947; Nicolas v. Romulo, supra note 39.
43 Foreign Service Institute, supra note 24 at pp. x-xi; Simbulan, supra note
31 at pp. 76-79.
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Saguisag vs. Ochoa, Jr.
expand the existing bases or to acquire new ones as military necessity might
require.44
A number of significant amendments to the 1947 MBA were made. 45 With
respect to its duration, the parties entered into the Ramos-Rusk Agreement of
1966, which reduced the term of the treaty from 99 years to a total of 44 years or
until 1991.46Concerning the number of U.S. military bases in the country, the
Bohlen-Serrano Memorandum of Agreement provided for the return to the
Philippines of 17 U.S. military bases covering a total area of 117,075
hectares.47 Twelve years later, the U.S. returned Sangley Point in Cavite City
through an exchange of notes.48 Then, through the Romulo-Murphy Exchange of
Notes of 1979, the parties agreed to the recognition of Philippine sovereignty over
Clark and Subic Bases and the reduction of the areas that could be used by the
U.S. military.49 The agreement also provided for the mandatory review of the
treaty every five years.50 In 1983, the parties revised the 1947 MBA through the
Romualdez-Armacost Agreement.51 The revision pertained to the operational use
of the military bases by the U.S. government within the context of Philippine
sovereignty,52 including the need for prior consultation with the Philippine
government on the former’s use of the bases for military combat operations or the
establishment of long-range missiles.53
_______________
44 1947 Military Bases Agreement, Art. 1(3); Foreign Service Institute, id., at
p. xii; Simbulan, id., at pp. 78-79.
45 Foreign Service Institute, id., at pp. xii-xv.
46 Id., at p. xiii.
47 Id., at p. xii.
48 Id., at p. xiii.
49 Id.
50 Id.
51 Id., at pp. xiii-xiv.
52 Id.
53 Id.
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312 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Pursuant to the legislative authorization granted under Republic Act No.
9,54 the President also entered into the 1947 Military Assistance Agreement55 with
the U.S. This executive agreement established the conditions under which U.S.
military assistance would be granted to the Philippines,56 particularly the
provision of military arms, ammunitions, supplies, equipment, vessels, services,
and training for the latter’s defense forces.57 An exchange of notes in 1953 made it
clear that the agreement would remain in force until terminated by any of the
parties.58
_______________
54 Republic Act No. 9 — Authority of President to Enter into Agreement with
US under Republic of the Phil. Military Assistance Act (1946). According to Section
1 thereof: “The President of the Philippines is hereby authorized to enter into
agreement or agreements with the President of the United States, or with any
of the agencies or instrumentalities of the Government of the United
States, regarding military assistance to the armed forces of the
Republic of the Philippines, in the form of transfer of property and
information, giving of technical advice and lending of personnel to
instruct and train them, pursuant to the provisions of United States Public Act
Numbered Four hundred and fifty-four, commonly called the ‘Republic of the
Philippines Military Assistance Act,’ under the terms and conditions
provided in this Act.”
55 Agreement Between the Government of the Republic of the Philippines and
the Government of the United States of America on Military Assistance to the
Philippines, 45 UNTS 47 (entered into force 21 Mar. 1947) [hereinafter 1947
Military Assistance Agreement].
56 Foreign Service Institute, supra note 24 at p. xi; Simbulan, supra note 31,
at pp. 79-89.
57 1947 Military Assistance Agreement, Sec. 6.
58 Exchange of Notes Constituting an Agreement Extending the Agreement
Between the Government of the Republic of the Philippines and the Government
of the United States of America on Military Assistance to the Philippines, 26 Jun.
1953, 213 UNTS 77 (entered into force 5 Jul. 1953) reproduced in Foreign Service
Institute, supra note 24 at pp. 197-203. See Mutual Logistics Support Agree-
313
To further strengthen their defense and security relationship,59 the
Philippines and the U.S. next entered into the MDT in 1951. Concurred in by both
the Philippine60 and the U.S.61 Senates, the treaty has two main features: first, it
allowed for mutual assistance in maintaining and developing their individual and
collective capacities to resist an armed attack;62 and second, it provided for their
mutual self-defense in the event of an armed attack against the territory of either
party.63 The treaty was premised on their recognition that an armed attack on
either of them would equally be a threat to the security of the other.64
_______________
ment (21 Nov. 2007). See generally: People v. Nazareno, 612 Phil. 753; 595
SCRA 438 (2009) (on the continued effectivity of the agreement).
59 See Mutual Defense Treaty between the Republic of the Philippines and
the United States of America, 30 Aug. 1951, 177 UNTS 133 (entered into force 27
Aug. 1952) [hereinafter 1951 MDT]. According to its preamble: “The Parties to this
Treaty x x x Desiring further to strengthen their present efforts to collective
defense for the preservation of peace and security pending the development of a
more comprehensive system of regional security in the Pacific Area x x x hereby
agreed as follows[.]” See: Bayan (Bagong Alyansang Makabayan) v.
Zamora, supra note 23.
60 S. Res. 84, 2nd Cong. (1952); Foreign Service Institute, supra note 24 at pp.
193-194; The Philippine instrument of ratification was signed by the President on
27 August 1952 and it entered into force on the same date upon the exchange of
ratification between the Parties (Philippines and U.S.), and was proclaimed by the
President by virtue of Proc. No. 341, S. 1952.
61 Nicolas v. Romulo, supra note 39 (citing U.S. Congressional Record,
82ndCongress, Second Session, Vol. 98, Part 2, pp. 2594-2595).
62 1951 MDT, Art. II.
63 Id., Arts. IV-V.
64 Padua, Colonel Paterno C., Republic of the Philippines United States
Defense Cooperation: Opportunities and Challenges, A Filipino Perspective, p. 6
(2010).
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314 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
C. Current legal regime on
the presence of U.S. armed
forces in the country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines
and the U.S. negotiated for a possible renewal of their defense and security
relationship.65 Termed as the Treaty of Friendship, Cooperation and Security, the
countries sought to recast their military ties by providing a new framework for
their defense cooperation and the use of Philippine installations.66 One of the
proposed provisions included an arrangement in which U.S. forces would be
granted the use of certain installations within the Philippine naval base in
Subic.67 On 16 September 1991, the Senate rejected the proposed treaty.68
The consequent expiration of the 194 7 MBA and the resulting paucity of any
formal agreement dealing with the treatment of U.S. personnel in the Philippines
led to the suspension in 1995 of large-scale joint military exercises.69 In the
meantime, the respective governments of the two countries
_______________
65 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23; People’s
Movement for Press Freedom v. Manglapus, supra note 15.
66 See Treaty of Friendship, Cooperation and Security Between the
Government of the Republic of the Philippines and the Government of the United
States of America, 27 Aug. 1991 (rejected by the Senate on 16 Sept. 1991).
67 Id., Art. VII; Supplementary Agreement Two to the Treaty of Friendship,
Cooperation and Security, Arts. I & II(9).
68 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
69 Id.; Joint Report of the Committee on Foreign Relations and the Committee
on National Defense and Security reproduced in Senate of the Philippines, The
Visiting Forces Agreement: The Senate Decision, p. 206 (1999); Lim v. Executive
Secretary,430 Phil. 555; 380 SCRA 739 (2002).
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Saguisag vs. Ochoa, Jr.
agreed70 to hold joint exercises at a substantially reduced level. 71The military
arrangements between them were revived in 1999 when they concluded the first
Visiting Forces Agreement (VFA).72
 As a “reaffirm[ation] [of the] obligations under the MDT,” 73 the VFA has laid
down the regulatory mechanism for the treatment of U.S. military and civilian
personnel visiting the country.74 It contains provisions on the entry and departure
of U.S. personnel; the purpose, extent, and limitations of their activities; criminal
and disciplinary jurisdiction; the waiver of
_______________
70 Agreement regarding the status of U.S. military and civilian personnel,
Exchange of notes between the DFA and the U.S. Embassy in Manila on Apr. 2,
and June 11 and 21, 1993, Hein’s No. KAV 3594 (entered into force 21 June 1993)
[hereinafter Status of Forces Agreement of 1993]. The agreement was extended on
19 September 1994; on 28 April 1995 (See Hein’s No. KAV 4245); and 8 December
1995 (See Hein’s No. KAV 4493). See also Mason, R. Chuck, Status of Forces
Agreement (Sofa): What Is It, and How Has It Been Utilized?, p. 14 (2012).
71 Joint Report of the Committee on Foreign Relations and the Committee on
National Defense and Security reproduced in Senate of the Philippines, supra note
69; Lim v. Executive Secretary, supra note 69; Bayan (Bagong Alyansang
Makabayan) v. Zamora, supra note 23.
72 Agreement Between the Government of the Republic of the Philippines and
the Government of the United States of America Regarding the Treatment of
United States Armed Forces Visiting the Philippines, Phil.-U.S., 10 Feb. 1998,
TIAS No. 12931 (entered into force 1 Jun. 1999) [hereinafter VFA I], reproduced
in Senate of the Philippines, id., at pp. 257-266 (1999); Lim v. Executive
Secretary, id.
73 VFA I, preamble. See: Lim v. Executive Secretary, id. In Lim, we explained
that “It is the VFA which gives continued relevance to the MDT despite the
passage of years. Its primary goal is to facilitate the promotion of optimal
cooperation between American and Philippine military forces in the event of an
attack by a common foe.”
74 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23 at p. 637;
p. 469.
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316 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
certain claims; the importation and exportation of equipment, materials,
supplies, and other pieces of property owned by the U.S. government; and the
movement of U.S. military vehicles, vessels, and aircraft into and within the
country.75 The Philippines and the U.S. also entered into a second counterpart
agreement (VFA II), which in turn regulated the treatment of Philippine military
and civilian personnel visiting the U.S.76 The Philippine Senate concurred in the
first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started
arriving in Mindanao to take part in joint military exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved trainings aimed at
simulating joint military maneuvers pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual
Logistics Support Agreement to “further the interoperability, readiness, and
effectiveness of their respective military forces”80 in accordance with the MDT, the
Military
_______________
75 VFA I; Lim v. Executive Secretary, supra note 69.
76 Agreement between the Government of the United States of America and
the Government of the Republic of the Philippines Regarding the Treatment of
Republic of the Philippines Personnel Visiting the United States of America, Phil.-
U.S., 9 Oct. 1998, TIAS No. 12931 [hereinafter VFA II].
77 Senate Resolution No. 18, 27 May 1999 reproduced in Senate of the
Philippines, supra note 69 at pp. 185-190; Bayan (Bagong Alyansang Makabayan)
v. Zamora, supra note 23.
78 Lim v. Executive Secretary, supra note 69.
79 Id.
80 Mutual Logistics Support Agreement Between the Department of Defense
of the United States of America and the Department of National Defense of the
Republic of the Philippines, Preamble, 21 Nov. 2002 [hereinafter 2002 MLSA].
According to the preamble thereof, the parties “have resolved to conclude” the
agreement in light of their “desir[e] to further the interoperability, readiness, and
effectiveness of their respective military forces through increased logistic
cooperation in accordance with the RP-US Mutual Defense
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Saguisag vs. Ochoa, Jr.
Assistance Agreement of 1953, and the VFA.81 The new agreement outlined
the basic terms, conditions, and procedures for facilitating the reciprocal provision
of logistics support, supplies, and services between the military forces of the two
countries.82 The phrase “logistics support and services” includes billeting,
operations support, construction and use of temporary structures, and storage
services during an approved activity under the existing military
arrangements.83 Already extended twice, the agreement will last until 2017.84
D. The Enhanced Defense
Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct
activities within certain “Agreed Locations” in the country. It was not transmitted
to the Senate on the executive’s understanding that to do so was no longer neces-
_______________
Treaty, RP-US Visiting Forces Agreement or the RP-US Military Assistance
Agreement.” Consequently, Article II of the agreement provides that: “[it] shall be
implemented, applied and interpreted by the Parties in accordance with the
provisions of the Mutual Defense Treaty, the Visiting Forces Agreement or the
Military Assistance Agreement and their respective constitutions, national laws
and regulations.”
81 2002 MLSA, Preamble.
82 Id., Art. I.
83 Id., Art. IV(1)(a); Padua, supra note 64 at pp. 1-2.
84 See Mutual Logistics Support Agreement Between the Department of
Defense of the United States of America and the Department of National Defense
of the Republic of the Philippines, Art. IX, 8 Nov. 2007 (applied provisionally on 8
Nov. 2007; entered into force 14 Jan. 2009) [hereinafter 2007 MLSA]; Extension of
the Mutual Logistics Support Agreement (RP-US-01) Between the Department of
Defense of the United States of America and the Department of National Defense
of the Republic of the Philippines (entered into force 6 Nov. 2012).
318
318 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
sary.85 Accordingly, in June 2014, the Department of Foreign Affairs (DFA)
and the U.S. Embassy exchanged diplomatic notes confirming the completion
of all necessary internal requirements for the agreement to enter into force in the
two countries.86
According to the Philippine government, the conclusion of EDCA was the result
of intensive and comprehensive negotiations in the course of almost two
years.87 After eight rounds of negotiations, the Secretary of National Defense and
the U.S. Ambassador to the Philippines signed the agreement on 28 April
2014.88 President Benigno S. Aquino III ratified EDCA on 6 June 2014.89 The OSG
clarified during the oral arguments90 that the Philippine and the U.S.
governments had yet to agree formally on the specific sites of the Agreed Locations
mentioned in the agreement.
_______________
85 Memorandum of the OSG, pp. 8, 24 Rollo (G.R. No. 212426, Vol. I), pp. 438,
454.
86 See Note No. 1082 of the U.S. Embassy to the DFA dated 25 June 2014,
Annex B of the Memorandum of the OSG, Rollo (G.R. No. 212426, Vol. I), p. 477;
Memorandum of the OSG, p. 8, Rollo (G.R. No. 212426, Vol. I), p. 438.
87 Statement of Secretary Albert F. del Rosario on the signing of the PH-U.S.
EDCA, Department of Foreign Affairs (28 Apr. 2014) available at
<https://www.dfa.gov.ph/index.php/newsroom/dfa-releases/2694-statement-of-
secretary-albert-f-del-rosario-on-the-signing-of-the-philippines-us-enhanced--
defense-cooperation-agreement> (last visited 5 Nov. 2015); Frequently Asked
Questions (FAQ) on the Enhanced Defense Cooperation Agreement, Department of
Foreign Affairs (28 Apr. 2014) available at
<https://www.dfa.gov.ph/index.php/newsroom/dfa-releases/2693-frequently-
asked-questions-faqs-on-the-enhanced-defense-cooperation-agreement> (last
visited 5 Nov. 2015).
88 EDCA; Memorandum of OSG, p. 3, Rollo (G.R. No. 212426, Vol. I), p. 433.
89 Instrument of Ratification, Annex of A of the Memorandum of OSG, Rollo,
p. 476.
90 Oral Arguments, TSN, 25 November 2014, pp. 119-120.
319
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Saguisag vs. Ochoa, Jr.
Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been in the
form of a treaty concurred in by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and
the parties ordered to file their respective memoranda, the Senators adopted
Senate Resolution No. (SR) 105.91The resolution expresses the “strong sense”92 of
the Senators that for EDCA to become valid and effective, it must first be
transmitted to the Senate for deliberation and concurrence.
III. Issues
Petitioners mainly seek a declaration that the Executive Department
committed grave abuse of discretion in entering into EDCA in the form of an
executive agreement. For this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are present.
B. Whether the President may enter into an executive agreement on
foreign military bases, troops, or facilities.
C. Whether the provisions under EDCA are consistent with the
Constitution, as well as with existing laws and treaties.
_______________
91 Rollo (G.R. No. 212444), pp. 865-867.
92 According to the Resolution: “Be it further resolved that this resolution
expressing the strong sense of the Senate be formally submitted to the Supreme
Court through the Chief Justice.” Id., at p. 867.
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320 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
IV. Discussion
A. Whether the essential
requisites for judicial
review have been satisfied

Petitioners are hailing this Court’s power of judicial review in order to strike
down EDCA for violating the Constitution. They stress that our fundamental law
is explicit in prohibiting the presence of foreign military forces in the country,
except under a treaty concurred in by the Senate. Before this Court may begin to
analyze the constitutionality or validity of an official act of a coequal branch of
government, however, petitioners must show that they have satisfied all the
essential requisites for judicial review.93
Distinguished from the general notion of judicial power, the power of judicial
review specially refers to both the authority and the duty of this Court to determine
whether a branch or an instrumentality of government has acted beyond the scope
of the latter’s constitutional powers.94 As articulated in Section 1, Article VIII of
the Constitution, the power of judicial review involves the power to resolve cases
in which the questions concern the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regula-
_______________
93 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., 460 Phil. 830, 914; 415 SCRA 44, 133 (2003).
94 See: Chavez v. Judicial and Bar Council, G.R. No. 202242, 17 July 2012,
676 SCRA 579; Tagolino v. House of Representatives Electoral Tribunal, G.R. No.
202202, 19 March 2013, 693 SCRA 574; Gutierrez v. House of Representatives
Committee on Justice, 658 Phil. 322; 643 SCRA 198 (2011); Francisco, Jr.
v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., id.; Demetria v. Alba, 232 Phil. 222; 148 SCRA 208 (1987).
321
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Saguisag vs. Ochoa, Jr.
tion.95 In Angara v. Electoral Commission, this Court exhaustively discussed
this “moderating power” as part of the system of checks and balances under the
Constitution. In our fundamental law, the role of the Court is to determine whether
a branch of government has adhered to the specific restrictions and limitations of
the latter’s power:96
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division
in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere. But it does not follow from the fact that
the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the
various departments of the government. x x x. And the judiciary in turn,
with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if violative of
the Constitution.
xxxx
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of our
people, acting through
_______________
95 The Constitution provides: “SECTION 1. The judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.”
96 Angara v. Electoral Commission, 63 Phil. 139, 156-158 (1936).
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322 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a
republican government intended to operate and function as a
harmonious whole, under a system of checks and balances, and
subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language
the restrictions and limitations upon governmental powers and
agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would
be mere verbiage, the bill of rights mere expressions of sentiment,
and the principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. x x x. In our case, this
moderating power is granted, if not expressly, by clear implication from
Section 2 of Article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other
 departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims
of authority under the Constitution and to establish for the parties
in an actual controversy the rights which that instrument secures
and guarantees to them. This is in truth all that is involved in what is
termed “judicial supremacy” which properly is the power of judicial
review under the Constitution. x x x x. (Emphases supplied)
323
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Saguisag vs. Ochoa, Jr.
The power of judicial review has since been strengthened in the 1987
Constitution. The scope of that power has been extended to the determination of
whether in matters traditionally considered to be within the sphere of appreciation
of another branch of government, an exercise of discretion has been attended with
grave abuse.97 The expansion of this power has made the political question
doctrine “no longer the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and legislative actions from
judicial inquiry or review.”98
This moderating power, however, must be exercised carefully and only if it
cannot be completely avoided. We stress that our Constitution is so incisively
designed that it identifies the spheres of expertise within which the different
branches of government shall function and the questions of policy that they shall
resolve.99 Since the power of judicial review involves the delicate exercise of
examining the validity or constitutionality of an act of a coequal branch of
government, this Court must continually exercise restraint to avoid
_______________
97 Gutierrez v. House of Representatives Committee on Justice, supra note
94; Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., supra note 93; Tañada v. Angara, 338 Phil. 546; 272
SCRA 18 (1997); Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA
792, 809-810 (citing Llamas v. Orbos, 279 Phil. 920; 202 SCRA 844
[1991]; Bengzon, Jr. v. Senate Blue Ribbon Committee, G.R. No. 89914, 20
November 1991, 203 SCRA 767; Gonzales v. Macaraig, Jr., G.R. No. 87636, 19
November 1990, 191 SCRA 452; Coseteng v. Mitra, Jr., G.R. No. 86649, 12 July
1990, 187 SCRA 377; Daza v. Singson, 259 Phil. 980; 180 SCRA 496 [1989]; and I
Record, Constitutional Commission, pp. 434-436 [1986]).
98 Oposa v. Factoran, Jr., id., at p. 97.
99 Morfe v. Mutuc, 130 Phil. 415, 442; 22 SCRA 424, 442 (1968); Angara v.
Electoral Commission, supra note 96 at p. 178.
324
324 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
the risk of supplanting the wisdom of the constitutionally appointed actor with
that of its own.100
Even as we are left with no recourse but to bare our power to check an act of a
coequal branch of government — in this case the executive — we must abide by
the stringent requirements for the exercise of that power under the
Constitution. Demetria v. Alba101and Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc.,102 cite the “pillars” of the
limitations on the power of judicial review as enunciated in the concurring opinion
of U.S. Supreme Court Justice Brandeis in Ashwander v. Tennessee Valley
Authority.103 Francisco104 redressed these “pillars” under the following categories:
1. That there be absolute necessity of deciding a case;
2. That rules of constitutional law shall be formulated only as
required by the facts of the case;
3. That judgment may not be sustained on some other ground;
4. That there be actual injury sustained by the party by reason of
the operation of the statute;
5. That the parties are not in estoppel;
6. That the Court upholds the presumption of constitutionality.
(Emphases supplied)
_______________
100 See: Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., supra note 93; United States v. Raines, 362 U.S. 17
(1960); and Angara v. Electoral Commission, id.
101 Demetria v. Alba, supra note 94 at p. 226.
102 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., supra at pp. 922-923; p. 161.
103 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-348 (1936).
104 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., supra at p. 923; p. 161.
325
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Saguisag vs. Ochoa, Jr.
These are the specific safeguards laid down by the Court when it exercises its
power of judicial review.105 Guided by these pillars, it may invoke the power only
when the following four stringent requirements are satisfied: (a) there is an actual
case or controversy; (b) petitioners possess locus standi; (c) the question of
constitutionality is raised at the earliest opportunity; and (d) the issue of
constitutionality is the lis mota of the case.106 Of these four, the first two conditions
will be the focus of our discussion.
1. Petitioners have shown
 the presence of an actual
case or controversy.
The OSG maintains107 that there is no actual case or controversy that exists,
since the Senators have not been deprived of the opportunity to invoke the
privileges of the institution they are representing. It contends that the
nonparticipation of the Senators in the present petitions only confirms that even
they believe that EDCA is a binding executive agreement that does not require
their concurrence.
It must be emphasized that the Senate has already expressed its position
through SR 105.108 Through the Resolution, the Senate has taken a position
contrary to that of the OSG. As the body tasked to participate in foreign affairs by
ratifying treaties, its belief that EDCA infringes upon its constitutional role
indicates that an actual controversy — albeit brought to the Court by non-
Senators, exists.
_______________
105 Id., at p. 922; p. 160.
106 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, 646 Phil. 452, 471; 632 SCRA 146, 166-167 (2010); David v. Macapagal-
Arroyo, 522 Phil. 705, 753; 489 SCRA 160, 213 (2006); Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., id.,
at p. 892;p. 133; Angara v. Electoral Commission, supra note 96 at p. 158.
107 Memorandum of OSG, p. 6; Rollo, p. 436.
108 Rollo (G.R. No. 212444), pp. 865-867.
326
326 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Moreover, we cannot consider the sheer abstention of the Senators from the
present proceedings as basis for finding that there is no actual case or controversy
before us. We point out that the focus of this requirement is the ripeness for
adjudication of the matter at hand, as opposed to its being merely conjectural or
anticipatory.109 The case must involve a definite and concrete issue involving real
parties with conflicting legal rights and legal claims admitting of specific relief
through a decree conclusive in nature.110It should not equate with a mere request
for an opinion or advice on what the law would be upon an abstract, hypothetical,
or contingent state of facts.111 As explained in Angara v. Electoral Commission:112
[The] power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by
the parties, and limited further to the constitutional question raised or
the very lis mota presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile
conclusions of wisdom, justice or expediency of legislation. More
than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is
_______________
109 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council,supra note 106 at p. 479.
110 Information Technology Foundation of the Philippines v. Commission on
Elections, 499 Phil. 281, 304-305; 460 SCRA 291, 313 (2005) (citing Aetna Life
Insurance Co. v. Hayworth, 300 U.S. 227 [1937]); Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism Council, id., at p. 480; David v.
Macapagal-Arroyo,supra note 106 at p. 753; p. 213; Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., supra note 93 at pp. 879-880; p. 121; Angara v. Electoral
Commission, supra note 96 at p. 158.
111 Id. (citing Aetna Life Insurance Co. v. Hayworth, id.; Southern
Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, id.; Lozano v.
Nograles, 607 Phil. 334, 340; 589 SCRA 354, 358 [2009]).
112 Angara v. Electoral Commission, supra note 96 at pp. 158-159.
327
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Saguisag vs. Ochoa, Jr.
presumed to abide by the Constitution but also because the judiciary
in the determination of actual cases and controversies must reflect
the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the
government. (Emphases supplied)
We find that the matter before us involves an actual case or controversy that
is already ripe for adjudication. The Executive Department has already sent an
official confirmation to the U.S. Embassy that “all internal requirements of the
Philippines x x x have already been complied with.”113 By this exchange of
diplomatic notes, the Executive Department effectively performed the last act
required under Article XII(1) 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.
2. While petitioners Saguisag
et al., do not have legal
standing, they nonetheless
raise issues involving mat-
ters of transcendental im-
portance.
 The question of locus standi or legal standing focuses on the determination of 329
whether those assailing the governmental act have the right of appearance to bring VOL. 779, JANUARY 12, 2016 329
the matter to the
_______________ Saguisag vs. Ochoa, Jr.

113 Memorandum of OSG, supra note 80. See also Note No. 1082, supra note the concrete adverseness which sharpens the presentation of issues upon
86. which the court so largely depends for illumination of difficult constitutional
questions.”119

328 The present petitions cannot

qualify as citizens’, taxpayers’,
328 SUPREME COURT REPORTS ANNOTATED or legislators’ suits; the Senate
Saguisag vs. Ochoa, Jr. as a body has the requisite
standing, but considering that it
court for adjudication.114 They must show that they have a personal and has not formally filed a plead-
substantial interest in the case, such that they have sustained or are in immediate ing to join the suit, as it merely
danger of sustaining, some direct injury as a consequence of the enforcement of the conveyed to the Supreme Court
challenged governmental act.115 Here, “interest” in the question involved must be its sense that EDCA needs the
material — an interest that is in issue and will be affected by the official act — as Senate’s concurrence to be valid,
distinguished from being merely incidental or general. 116 Clearly, it would be petitioners continue to suffer
insufficient to show that the law or any governmental act is invalid, and that from lack of standing.
petitioners stand to suffer in some indefinite way.117 They must show that they
have a particular interest in bringing the suit, and that they have been or are about In assailing the constitutionality of a governmental act, petitioners suing as
to be denied some right or privilege to which they are lawfully entitled, or that they citizens may dodge the requirement of having to establish a direct and personal
are about to be subjected to some burden or penalty by reason of the act complained interest if they show that the act affects a public right.120 In arguing that they have
of.118 The reason why those who challenge the validity of a law or an international legal standing, they claim121 that the case they have filed is a concerned citizen’s
agreement are required to allege the existence of a personal stake in the outcome suit. But aside from general statements that the petitions involve the protection of
of the controversy is “to assure a public right, and that their constitutional rights as citizens would be violated,
_______________ _______________

114 Almario v. Executive Secretary, G.R. No. 189028, 16 July 2013, 701 SCRA
269, 302; Bayan Muna v. Romulo, 656 Phil. 246; 641 SCRA 244 (2011).
115 Funa v. Duque III, G.R. No. 191672, 25 November 2014, 742 SCRA
166; Almario v. Executive Secretary, id.; Bayan Muna v. Romulo, id., at p. 265; p.
255; Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23; Francisco
v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., supranote 93 at pp. 895-896; p. 136.
116 Bayan Muna v. Romulo, id., at p. 265; p. 254; Pimentel, Jr. v. Office of the
Executive Secretary, supra note 15; Joya v. Presidential Commission on Good
Government, G.R. No. 96541, 24 August 1993, 225 SCRA 568.
117 Funa v. Duque III, supra; Almario v. Executive Secretary, supra note 114
at p. 302; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, supra note 106 at p. 472; p. 167; Francisco v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc., supra note 93 at pp. 895-896;
p. 136.
118 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council,id.
120 Id., at pp. 266-267; p. 256; Akbayan Citizens Action Party (“AKBAYAN”)
v. Aquino, supra note 15; Francisco, Jr. v. Nagmamalasakit na mga Manananggol
ng mga Manggagawang Pilipino, Inc., id.; Tañada v. Tuvera, 220 Phil. 422; 136
SCRA 27 (1985).
121 Petition of Saguisag, et al., p. 20, Rollo (G.R. No. 212426, Vol. I), p. 22;
Memorandum of Saguisag, et al., p. 15, Rollo (G.R. No. 212426, Vol. II), p. 985;
Petition of Bayan, et al., p. 9, Rollo (G.R. No. 212444, Vol. I), p. 11; Memorandum
of Bayan, et al., pp. 19, 23, Rollo (G.R. No. 212444, Vol. I), pp. 583, 587.
330
330 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
they 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.

In claiming that they have legal standing as taxpayers, petitioners122 aver that
the implementation of EDCA would result in the unlawful use of public funds.
They emphasize that Article X(1) refers to an appropriation of funds; and that the
agreement entails a waiver of the payment of taxes, fees, and rentals. During the
oral arguments, however, they admitted that the government had not yet
appropriated or actually disbursed public funds for the purpose of implementing
the agreement.123 The OSG, on the other hand, maintains that petitioners cannot
sue as taxpayers.124 Respondent explains that EDCA is neither meant to be a tax
measure, nor is it directed at the disbursement of public funds.
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.125 Here,
those challenging the act must specifically show that they have sufficient interest
in preventing the illegal expenditure of public money, and that they will sustain a
direct injury as a result of the en-
_______________
122 Petition of Saguisag, et al., p. 10, Rollo (G.R. No. 212426, Vol. I), p. 12;
Petition of Bayan, et al., pp. 9-10, Rollo (G.R. No. 212444, Vol. I), pp. 11-12;
Memorandum of Bayan, et al., pp. 19, 23, Rollo (G.R. No. 212444, Vol. I), pp. 583,
587.
123 Oral Arguments, TSN, 18 November 2014, pp. 19-20.
124 Consolidated Comment of the OSG, p. 4, Rollo (G.R. No. 212426, Vol. I),
p. 241; Memorandum of OSG, p. 7, Rollo (G.R. No. 212426, Vol. I), p. 437.
125 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
331
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Saguisag vs. Ochoa, Jr.
forcement of the assailed act.126 Applying that principle to this case, they must
establish that EDCA involves the exercise by Congress of its taxing or spending
powers.127
We agree with the OSG that the petitions cannot qualify as taxpayers’ suits.
We emphasize that a taxpayers’ suit contemplates a situation in which there is
already an appropriation or a disbursement of public funds.128 A reading of Article
X(1) of EDCA would show that there has been neither an appropriation nor an
authorization of disbursement of funds. The cited provision reads:
All obligations under this Agreement are subject to the
availability of appropriated funds authorized for these purposes.
(Emphases supplied)
This provision means that if the implementation of EDCA would require the
disbursement of public funds, the money must come from appropriated funds that
are specifically authorized for this purpose. 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.
_______________
126 Id., (citing Pascual v. Secretary of Public Works, 110 Phil. 331
[1960]; Maceda v. Macaraig, Jr., G.R. No. 88291, 31 May 1991, 197 SCRA
771; Lozada v. Commission on Elections, 205 Phil. 283; 120 SCRA 337
[1983]; Dumlao v. COMELEC, 184 Phil. 369; 95 SCRA 392 [1980]; Gonzales v.
Marcos, 160 Phil. 637; 65 SCRA 624 [1975]).
127 Id., (citing Bugnay Construction and Development Corporation v.
Laron, 257 Phil. 245; 176 SCRA 240 [1989]).
128 Lozano v. Nograles, supra note 111 at pp. 342-343; p. 361.
332
332 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Petitioners Bayan, et al. also claim129 that their co-petitioners who are party-
list representatives have the standing to challenge the act of the Executive
Department, especially if it impairs the constitutional prerogatives, powers, and
privileges of their office. While they admit that there is no incumbent Senator who
has taken part in the present petition, they nonetheless assert that they also stand
to sustain a derivative but substantial injury as legislators. They argue that under
the Constitution, legislative power is vested in both the Senate and the House of
Representatives; consequently, it is the entire Legislative Department that has a
voice in determining whether or not the presence of foreign military should be
allowed. They maintain that as members of the Legislature, they have the
requisite personality to bring a suit, especially when a constitutional issue is
raised.
The OSG counters130 that petitioners do not have any legal standing to file the
suits concerning the lack of Senate concurrence in EDCA. Respondent emphasizes
that the power to concur in treaties and international agreements is an
“institutional prerogative” granted by the Constitution to the Senate. Accordingly,
the OSG argues that in case of an allegation of impairment of that power, 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.
The legal standing of an institution of the Legislature or of any of its Members
has already been recognized by this Court in a number of cases.131 What is in
question here is the alleged
_______________
 129 Petition of Bayan, et al., p. 10, Rollo (G.R. No. 212444, Vol. I), p. 12;
Memorandum of Bayan, et al., pp. 19-20, Rollo (G.R. No. 212444, Vol. I), pp. 583-
584.
130 Consolidated Comment of the OSG, pp. 3-4, Rollo (G.R. No. 212444, Vol.
I), pp. 240-241; Memorandum of the OSG, pp. 4-7, Rollo (G.R. No. 212444, Vol. I),
pp. 434-437.
131 Pimentel, Jr. v. Office of the Executive Secretary, supra note
15; Bayan(Bagong Alyansang Makabayan) v. Zamora, supra note 23; Philippine
Constitution Association v. Enriquez, G.R. Nos. 113105, 113174, 113766, 113888,
19 August 1994, 235 SCRA 506; Gonzales v. Macaraig, supra note 97; Mabanag v.
Lopez Vito, 78 Phil. 1 (1947).
333
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Saguisag vs. Ochoa, Jr.
impairment of the constitutional duties and powers granted to, or the
impermissible intrusion upon the domain of, the Legislature or an institution
thereof.132 In the case of suits initiated by the legislators themselves, this Court
has recognized their standing to question the validity of any official action that
they claim infringes the prerogatives, powers, and privileges vested by the
Constitution in their office.133 As aptly explained by Justice Perfecto in Mabanag
v. Lopez Vito:134
Being members of Congress, they are even duty bound to see that
the latter act within the bounds of the Constitution which, as
representatives of the people, they should uphold, unless they are to
commit a flagrant betrayal of public trust. They are representatives of the
sovereign people and it is their sacred duty to see to it that the
fundamental law embodying the will of the sovereign people is not
trampled upon. (Emphases supplied)
We emphasize that 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.135 Legislators have the standing “to
maintain inviolate the prerogatives, powers, and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any
official action,
_______________
132 Philippine Constitution Association v. Enriquez, id.
133 Pimentel, Jr. v. Office of the Executive Secretary, supra note 15; Philippine
Constitution Association v. Enriquez, id.
134 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
135 Pimentel, Jr. v. Office of the Executive Secretary, supra note
15; Bayan(Bagong Alyansang Makabayan) v. Zamora, supra note 23; Philippine
Constitution Association v. Enriquez, supra note 131.
334
334 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
which they claim infringes their prerogatives as legislators.” 136As legislators,
they must clearly show that there was a direct injury to their persons or the
institution to which they belong.137
As correctly argued by respondent, 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. In Pimentel, Jr. v. Office
of the Executive Secretary, this Court did not recognize the standing of one of the
petitioners therein who was a member of the House of Representatives. The
petition in that case sought to compel the transmission to the Senate for
concurrence of the signed text of the Statute of the International Criminal Court.
Since that petition invoked the power of the Senate to grant or withhold its
concurrence in a treaty entered into by the Executive Department, only then
incumbent Senator Pimentel was allowed to assert that authority of the Senate of
which he was a member.
Therefore, none of the initial petitioners in the present controversy has
the standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the
Executive for the following reasons.
In any case, petitioners raise
issues involving matters of
transcendental importance.
Petitioners138 argue that the Court may set aside procedural technicalities, as
the present petition tackles issues that
_______________
136 Pimentel, Jr. v. Office of the Executive Secretary, id.
137 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
138 Petition of Saguisag, et al., pp. 21-22, Rollo (G.R. No. 212426, Vol. I), pp.
23-24; Memorandum of Saguisag, et al., pp. 15-17, Rollo (G.R. No. 212426, Vol. II),
pp. 985-987; Petition of Bayan, et al., p. 6, Rollo (G.R. No. 212444, Vol. I), p. 8;
Memorandum of Bayan, et al., pp. 19, 23, Rollo (G.R. No. 212444, Vol. I), pp. 583,
587.
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Saguisag vs. Ochoa, Jr.

are of transcendental importance. They point out that the matter before us is
about the proper exercise of the Executive Department’s power to enter into
international agreements in relation to that of the Senate to concur in those
agreements. They also assert that EDCA would cause grave injustice, as well as
irreparable violation of the Constitution and of the Filipino people’s rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the mere
fact that the present petitions involve matters of transcendental importance in
order to cure their inability to comply with the constitutional requirement of
standing. Respondent bewails the overuse of “transcendental importance” as an
exception to the traditional requirements of constitutional litigation. It stresses
that one of the purposes of these requirements is to protect the Supreme Court
from unnecessary litigation of constitutional questions.
In a number of cases,140 this Court has indeed taken a liberal stance towards
the requirement of legal standing, especially when paramount interest is involved.
Indeed, 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.
_______________
139 Consolidated Comment of the OSG, pp. 4-5, Rollo (G.R. No. 212444, Vol.
I), pp. 241-242; Memorandum of the OSG, pp. 7-8, Rollo (G.R. No. 212444, Vol. I),
pp. 437-438.
140 Bayan Muna v. Romulo, supra note 114 at p. 265; p. 255
(citing Constantino, Jr. v. Cuisia, 509 Phil. 486; 472 SCRA 505 [2005]; Agan, Jr. v.
Philippine International Air Terminals Co., Inc., 450 Phil. 744; 402 SCRA 612
[2003]; Del Mar v. Philippine Amusement and Gaming Corporation, 400 Phil. 307;
346 SCRA 485 [2000]; Tatad v. Garcia, Jr., 313 Phil. 296; 243 SCRA 436
[1995]; Kilosbayan, Incorporated v. Guingona, Jr., G.R. No. 113375, 5 May 1994,
232 SCRA 110); Integrated Bar of the Philippines v. Zamora, 392 Phil. 618; 338
SCRA 81 (2000).
336
336 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
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.
While this Court has yet to thoroughly delineate the outer limits of this
doctrine, we emphasize that not every other case, however strong public interest
may be, can qualify as an issue of transcendental importance. Before it can be
impelled to brush aside the essential requisites for exercising its power of judicial
review, it must at the very least consider a number of factors: (1) the character of
the funds or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other party
that has a more direct and specific interest in raising the present questions. 141
An exhaustive evaluation of the memoranda of the parties, together with the
oral arguments, shows that 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.”142 It behooves the Court in this instance to take a
liberal stance towards the rule on standing and to determine
_______________
141 Kilosbayan, Incorporated v. Guingona, Jr. [Con. Op., J. Feliciano], id., at
pp. 155-156 (cited in Magallona v. Ermita, 671 Phil. 243; 655 SCRA 476
[2011]); Paguia v. Office of the President, 635 Phil. 568; 621 SCRA 600
[2010]; Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.,supra note 93 at p. 899; p. 139).
142 Memorandum of OSG, supra note 80. See also Note No. 1082, supra note
86.
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Saguisag vs. Ochoa, Jr.
forthwith whether there was grave abuse of discretion on the part of the
Executive Department.
We therefore rule that this case is a proper subject for judicial review.
B. Whether the President may enter into an executive agreement on
foreign military bases, troops, or facilities.
C. Whether the provisions under EDCA are consistent with the
Constitution, as well as with existing laws and treaties.
Issues B and C shall be discussed together infra.
1. The role of the President
as the executor of the law
includes the duty to de-
fend the State, for which
purpose he may use that
power in the conduct of
foreign relations.
Historically, the Philippines has mirrored the division of powers in the U.S.
government. When the Philippine government was still an agency of the Congress
of the U.S., it was as an agent entrusted with powers categorized as executive,
legislative, and judicial, and divided among these three great branches.143 By this
division, the law implied that the divided powers cannot be exercised except by the
department given the power.144
 This divide continued throughout the different versions of the Philippine
Constitution and specifically vested the supreme executive power in the Governor-
General of the Philip-
_______________
143 Government of the Philippine Islands v. Springer, 50 Phil. 259 (1927).
144 Id.
338
338 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
pines,145 a position inherited by the President of the Philippines when the
country attained independence. One of the principal functions of the supreme
executive is the responsibility for the faithful execution of the laws as embodied by
the oath of office.146The oath of the President prescribed by the 1987 Constitution
reads thus:
I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice President or
Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate
myself to the service of the Nation. So help me God. (In case of affirmation,
last sentence will be omitted)147 (Emphases supplied)
This Court has interpreted the faithful execution clause as an obligation
imposed on the President, and not a separate grant of power.148 Section 17, Article
VII of the Constitution, expresses this duty in no uncertain terms and includes it
in the provision regarding the President’s power of control over the executive
department, viz.:
The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly
require this oath from the President. In the 1973 Constitution, for instance, the
provision simply gives the President control over the ministries. 149 A similar lan-
_______________
145 Id.
146 Constitution, Art. VII, Sec. 5; Constitution (1973, as amended), Art. VII,
Sec. 7; Constitution (1935, as amended), Art. VII, Sec. 7.
147 Id.
148 Almario v. Executive Secretary, supra note 114.
149 Constitution (1973, as amended), Art. VII, Sec. 10: “The President shall
have control of the ministries.”
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guage, not in the form of the President’s oath, was present in the 1935
Constitution, particularly in the enumeration of executive functions.150 By 1987,
executive power was codified not only in the Constitution, but also in the
Administrative Code:151
SECTION 1. Power of Control.—The President shall have control of
all the executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in
executive power and is intimately related to the other executive functions. These
functions include the faithful execution of the law in autonomous regions;152 the
right to prosecute crimes;153 the implementation of transportation projects;154 the
duty to ensure compliance with treaties, executive agreements and executive
orders;155 the authority to deport undesirable aliens;156 the conferment of national
awards under the President’s jurisdiction;157and the overall administration and
control of the executive department.158
_______________
150 Constitution (1935, as amended), Art. VII, Sec. 10(1): “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.”
151 Administrative Code of 1987, Book III, Title I, Sec. 1.
152 Constitution, Art. X, Sec. 16: “The President shall exercise general
supervision over autonomous regions to ensure that the laws are faithfully
executed.”
153 Ilusorio v. Ilusorio, 564 Phil. 746; 540 SCRA 182 (2007); Gonzalez v.
Hongkong & Shanghai Banking Corp., 562 Phil. 841; 537 SCRA 255 (2007).
154 Metropolitan Manila Development Authority v. Viron Transportation Co.,
Inc., 557 Phil. 121; 530 SCRA 341 (2007).
155 La Perla Cigar & Cigarette Factory v. Capapas, 139 Phil. 451; 28 SCRA
1085 (1969).
156 In re: R. McCulloch Dick, 38 Phil. 211 (1918).
157 Almario v. Executive Secretary, supra note 114.
158 Administrative Code of 1987, Book IV, Sec. 38.
340
340 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
 These obligations are as broad as they sound, for a President cannot function
with crippled hands, but must be capable of securing the rule of law within all
territories of the Philippine Islands and be empowered to do so within
constitutional limits. Congress cannot, for instance, limit or take over the
President’s power to adopt implementing rules and regulations for a law it has
enacted.159
More important, this mandate is self-executory by virtue of its being inherently
executive in nature.160 As Justice Antonio T. Carpio previously wrote,161
Every other consideration to one side, this remains certain — The
Congress of the United States clearly intended that the Governor General’s
power should be commensurate with his responsibility. The Congress never
intended that the Governor-General should be saddled with the
responsibility of administering the government and of executing the laws
but shorn of the power to do so. The interests of the Philippines will be best
served by strict adherence to the basic principles of constitutional
government.

[i]f the rules are issued by the President in implementation or execution
of self-executory constitutional powers vested in the President, the rule-
making power of the President is not a delegated legislative power. The
most important self-executory constitutional power of the President is the
President’s constitutional duty and mandate
to “ensure that the laws be faithfully executed.” The rule is that the
President can execute the law without any delegation of power from the
legislature.
The import of this characteristic is that the manner of the President’s
execution of the law, even if not expressly granted by the law, is justified
by necessity and limited only by law, since the President must “take
necessary and proper steps to carry into execution the law.”162 Justice
George Malcolm states this principle in a grand manner:163
In light of this constitutional duty, it is the President’s prerogative to do
whatever is legal and necessary for Philippine defense interests. It is no
coincidence that the constitutional provision on the faithful execution clause was
followed by that on the President’s commander-in-chief powers,164 which are
specifically granted during extraordinary events of lawless violence, invasion, or
rebellion. And this duty of defending the country is unceasing, even in times when
there is no state of lawless violence, invasion, or rebellion. At such times, the
President has full powers to ensure the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-
execution clause of the Constitution to do nothing when the call of the moment
requires increasing the military’s defensive capabilities, which could include
forging alliances with states that hold a common interest with the Philippines or
bringing an international suit against an offending state.
_______________

The executive should be clothed with sufficient power to administer
efficiently the affairs of state. He should have complete control of the
instrumentalities
_______________
159 Concurring Opinion of J. Carpio, Abakada Guro Party-List
Purisima, 584 Phil. 246; 562 SCRA 251 (2008).
160 Id.
161 Id., at p. 297; p. 304.
162 Philippine Constitution Association v. Enriquez, supra note 131.
163 Government of the Philippine Islands v. Springer, supra note 143.
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Saguisag vs. Ochoa, Jr.
through whom his responsibility is discharged. It is still true, as said
by Hamilton, that “A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution;
and a government ill executed, whatever it may be in theory, must be in
practice a bad government.” The mistakes of State governments need not
be repeated here.
xxxx
164 See Constitution, Art. VII, Secs. 17 & 18.
342
342 SUPREME COURT REPORTS ANNOTATED
v.
Saguisag vs. Ochoa, Jr.
The context drawn in the analysis above has been termed by Justice Arturo D.
Brion’s Dissenting Opinion as the beginning of a “patent misconception.” 165 His
dissent argues that this approach taken in analyzing the President’s role as
executor of the laws is preceded by the duty to preserve and defend the
Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly failed to
appreciate the nuances of the analysis, if read holistically and in context. The
concept that the President cannot function with crippled hands and therefore can
disregard the need for Senate concurrence in treaties167 was never expressed or
implied. Rather, the appropriate reading of the preceding analysis shows that the
point being elucidated is the reality that the President’s duty to execute the laws
and protect the Philippines is inextricably interwoven with his foreign affairs
powers, such that he must resolve issues imbued with both concerns to the full
extent of his powers, subject only to the limits supplied by law. In other words,
apart from an expressly mandated limit, or an implied limit by virtue of
incompatibility, the manner of execution by the President must be given utmost
deference. This approach is not different from that taken by the Court in situations
with fairly similar contexts.
Thus, the analysis portrayed by the dissent does not give the President
authority to bypass constitutional safeguards and limits. In fact, it specifies what
these limitations are, how these limitations are triggered, how these limitations
function, and what can be done within the sphere of constitutional duties and
limitations of the President.
Justice Brion’s dissent likewise misinterprets the analysis proffered when it
claims that the foreign relations power of the President should not be interpreted
in isolation.168 The
_______________
165 Dissenting Opinion of Justice Arturo D. Brion, p. 556.
166 Id., at p. 557.
167 Id., at pp. 556-559.
168 Id., at pp. 559-560.
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Saguisag vs. Ochoa, Jr.
analysis itself demonstrates how the foreign affairs function, while mostly the
President’s, is shared in several instances, namely in Section 2 of Article II on the
conduct of war; Sections 20 and 21 of Article VII on foreign loans, treaties, and
international agreements; Sections 4(2) and 5(2)(a) of Article VIII on the judicial
review of executive acts; Sections 4 and 25 of Article XVIII on treaties and
international agreements entered into prior to the Constitution and on the
presence of foreign military troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between
the two major presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect
of foreign affairs is not novel to the Court. The President’s act of treating EDCA as
an executive agreement is not the principal power being analyzed as the
Dissenting Opinion seems to suggest. Rather, the preliminary analysis is in
reference to the expansive power of foreign affairs. We have long treated this power
as something the Courts must not unduly restrict. As we stated recently in Vinuya
v. Romulo:
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or
invalidate treaties and executive agreements. However, the question
whether the Philippine government should espouse claims of its nationals
against a foreign government is a foreign relations matter, the authority
for which is demonstrably committed by our Constitution not to the courts
but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all
claims of its nationals for reparations against Japan in the Treaty of Peace
of 1951. The wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
344
344 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
In the seminal case of US v. Curtiss-Wright Export Corp.,the US
Supreme Court held that “[t]he President is the sole organ of the nation in
its external relations, and its sole representative with foreign relations.”
It is quite apparent that if, in the maintenance of our
international relations, embarrassment — perhaps serious
embarrassment — is to be avoided and success for our aims
achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must
often accord to the President a degree of discretion and
freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover,
he, not Congress, has the better opportunity of knowing the
conditions which prevail in foreign countries, and especially is this
true in time of war. He has his confidential sources of information.
He has his agents in the form of diplomatic, consular and other
officials....
This ruling has been incorporated in our jurisprudence
through Bayan v. Executive Secretary and Pimentel v. Executive
Secretary; its overreaching principle was, perhaps, best articulated in
(now Chief) Justice Puno’s dissent in Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the
nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best
available information and can decide with decisiveness. . . It is also
the President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic
and consular officials regularly brief him on meaningful events all
over the world. He has also unlimited access
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Saguisag vs. Ochoa, Jr.
to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity,
nay, validity of his actions are adjudged under less stringent
 standards, lest their judicial repudiation lead to breach of
an international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment and a
plethora of other problems with equally undesirable
consequences.169 (Emphases supplied)
Understandably, this Court must view the instant case with the same
perspective and understanding, knowing full well the constitutional and legal
repercussions of any judicial overreach.
2. The plain meaning of the
Constitution prohibits the en-
try of foreign military bases,
troops or facilities, except by
way of a treaty concurred in
by the Senate — a clear limi-
tation on the President’s dual
role as defender of the State
and as sole authority in for-
eign relations.
Despite the President’s roles as defender of the State and sole authority in
foreign relations, the 1987 Constitution expressly limits his ability in instances
when it involves the entry of foreign military bases, troops or facilities. The initial
limitation is found in Section 21 of the provisions on the Executive Department:
“No treaty or international agreement
_______________
169 Vinuya v. Romulo, supra note 17.
346
346 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate.” The specific limitation is given by Section 25 of the
Transitory Provisions, the full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of America
concerning Military Bases, foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that purpose,
and recognized as a treaty by the other contracting State.
It is quite plain that the Transitory Provisions of the 1987 Constitution
intended to add to the basic requirements of a treaty under Section 21 of Article
VII. This means that both provisions must be read as additional limitations to the
President’s overarching executive function in matters of defense and foreign
relations.
3. The President, however, may
enter into an executive
agreement on foreign military
bases, troops, or facilities, if
(a) it is not the instrument
that allows the presence of
foreign military bases, troops,
or facilities; or (b) it merely
aims to implement an existing
law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between
the Republic of the Philippines and the United States of America
concerning Military Bases,
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Saguisag vs. Ochoa, Jr.
foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred
in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum held for
that purpose, and recognized as a treaty by the other contracting State.
(Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the form
of a “treaty” duly concurred in by the Senate. They stress that the Constitution is
unambiguous in mandating the transmission to the Senate of all international
agreements concluded after the expiration of the MBA in 1991 — agreements that
concern the presence of foreign military bases, troops, or facilities in the country.
Accordingly, petitioners maintain that the Executive Department is not given the
choice to conclude agreements like EDCA in the form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its
members — with 1 against and 2 abstaining — says in SR 105171 that EDCA must
be submitted to the
_______________
 170 Memorandum of Bayan, et al., pp. 29-32, Rollo (G.R. No. 212444), pp. 593-
596; Memorandum of Saguisag, et al., pp. 17-29, 35-37, Rollo (G.R. No. 212426,
Vol. II), pp. 987-999, 1005-1007.
171 The pertinent text of SR 105 is reproduced below:
WHEREAS, the treaty known as RP-US EDCA (Enhanced Defense
Cooperation Agreement) is at present subject of Supreme Court proceedings on the
question of whether this treaty is valid and effective, considering that the Senate
has not concurred with the treaty;
WHEREAS, the Office of the President argues that the document is not a
treaty but is instead an executive agreement that allegedly does not require Senate
concurrence;
WHEREAS, the only constitutional ground for the position taken by the
Executive is the mere inclusion of the term “executive agreement” in the
Constitution which provides: “All cases involving the constitutionality of an ...
executive agree-
349
VOL. 779, JANUARY 12, 2016 349
Saguisag vs. Ochoa, Jr.
_______________
ment ...” (Article VIII, Section 4, paragraph 2) as one of items included in the
list of cases which the Supreme Court has power to decide;
WHEREAS, there is no other provision in the Constitution concerning a so--
called executive agreement, and there is no mention at all of its definition, its
requirements, the role of the Senate, or any other characteristic of, or protocol for,
any such so-called “executive agreement”;
WHEREAS, “executive agreement” is a term wandering alone in the
Constitution, bereft of provenance and an unidentified constitutional mystery;
WHEREAS, in stark contrast to the lone mention of the term “executive
agreement,” the Constitution provides categorically:
(a) “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” (Article VII,
Section 21);
(b) “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 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” (Article XVIII, Section 25);
WHEREAS, on the one hand, the Constitution is clear and categorical that
Senate concurrence is absolutely necessary for the validity and effectivity of any
treaty, particularly any treaty that promotes for foreign military bases, troops and
facilities, such as the EDCA;
WHEREAS, under the rules of constitutional and statutory construction, the
two constitutional provisions on Senate concurrence are specific provisions, while
the lone constitutional provision merely mentioning an “executive agreement” is a
general provision, and therefore, the specific provisions on Senate concurrence
prevail over the general provision on “executive agreement”;
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Saguisag vs. Ochoa, Jr.
Senate in the form of a treaty for concurrence by at least two-thirds of all its
members.
The Senate cites two constitutional provisions (Article VI, Section 21 and
Article XVIII, Section 25) to support its position. Compared with the lone
constitutional provision that the Office of the Solicitor General (OSG) cites, which
is Article XVIII, Section 4(2), which includes the constitutionality of “executive
agreement(s)” among the cases subject to the Supreme Court’s power of judicial
review, the Constitution clearly requires submission of EDCA to the Senate. Two
specific provisions versus one general provision means that the specific provisions
prevail. The term “executive agreement” is “a term wandering alone in the
Constitution, bereft of provenance and an unidentified constitutional mystery.”
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation
even added that the MDT, which the Executive claims to be partly implemented
through EDCA, is already obsolete.
_______________
WHEREAS, the Senate is aware of and obeys the ruling of the Supreme Court
in Pimentel, Jr. v. Office of the Executive Secretary, 462 SCRA 622 (2005);
WHEREAS, the ruling cited above does not apply to the EDCA case, because
the Senate makes no attempt to force the President of the Philippines to submit
the EDCA treaty for concurrence by the Senate, by this Resolution, the Senate
merely takes a definitive stand on the nonnegotiable power of the Senate to decide
whether a treaty will be valid and effective, depending on the Senate concurrence[;]
WHEREFORE, be it hereby resolved by the Senate that the RP-US EDCA
treaty requires Senate concurrence, in order to be valid and effective;
Be it further resolved, That this Resolution expressing the strong sense of the
Senate be formally submitted to the Supreme Court through the Chief Justice.
350
350 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
There are two insurmountable obstacles to this Court’s agreement with SR
105, as well as with the comment on interpellation made by Senator Santiago.
First, the concept of “executive agreement” is so well-entrenched in this Court’s
pronouncements on the powers of the President. When the Court validated the
concept of “executive agreement,” it did so with full knowledge of the Senate’s role
in concurring in treaties. It was aware of the problematique of distinguishing when
an international agreement needed Senate concurrence for validity, and when it
did not; and the Court continued to validate the existence of “executive
agreements” even after the 1987 Constitution.172 This follows a long line of similar
decisions upholding the power of the President to enter into an executive
agreement.173
_______________
172 Arigo v. Swift, G.R. No. 206510, 16 September 2014, 735 SCRA 102; Land
Bank of the Philippines v. Atlanta Industries, Inc., G.R. No. 193796, 2 July 2014,
729 SCRA 12; Roxas v. Ermita, G.R. No. 180030, June 10, 2014; Bayan Muna v.
Romulo,supra note 114; Vinuya v. Romulo, supra note 17; Nicolas v.
Romulo, supra note 39; Akbayan Citizens Action Party v. Aquino, supra note
15; Suplico v. NEDA, 580 Phil. 301; 558 SCRA 329 (2008); Neri v. Senate
Committee on Accountability of Public Officers and Investigations, 572 Phil. 554;
549 SCRA 77 (2008); Abaya v. Ebdane, Jr., 544 Phil. 645; 515 SCRA 720
(2007); Senate of the Philippines v. Ermita, 522 Phil. 1; 488 SCRA 1
(2006); Pimentel, Jr. v. Office of the Executive Secretary, supranote
15; Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note note 23; Chavez
v. Presidential Commission on Good Government, 360 Phil. 133; 299 SCRA 744
(1998).
173 Republic v. Quasha, 150-B Phil. 140; 46 SCRA 160 (1972); Adolfo v. Court
of First Instance of Zambales, 145 Phil. 264; 34 SCRA 166 (1970); Commissioner of
Internal Revenue v. Guerrero, 128 Phil. 197; 19 SCRA 205 (1967); Gonzales v.
Hechanova, 118 Phil. 1065; 9 SCRA 230 (1963); Commissioner of Customs v.
Eastern Sea Trading, 113 Phil. 333; 3 SCRA 351 (1961); USAFFE Veterans Ass’n.,
Inc. v. Treasurer of the Phil., 105 Phil. 1030 (1959); Uy Matiao & Co., Inc. v. City
of Cebu, 93 Phil. 300 (1953); Abbot Laboratories v. Agrava, 91 Phil. 328 (1952).
351
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Second, the MDT has not been rendered obsolescent, considering that as late
as 2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25,
inevitably leads to the conclusion that it applies only to a proposed agreement
between our government and a foreign government, whereby military bases,
troops, or facilities of such foreign government would be “allowed” or would “gain
entry” Philippine territory.
Note that the provision “shall not be allowed” is a negative injunction. This
wording signifies that the President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines, except under a treaty
concurred in by the Senate. Hence, the constitutionally restricted authority
pertains to the entry of the bases, troops, or facilities, and not to the activities to
be done after entry.
Under the principles of constitutional construction, of paramount
consideration is the plain meaning of the language expressed in the Constitution,
or the verba legis rule.175 It is presumed that the provisions have been carefully
crafted in order to express the objective it seeks to attain. 176 It is incumbent upon
the Court to refrain from going beyond the plain
_______________
174 Nicolas v. Romulo, supra note 39.
175 Chavez v. Judicial and Bar Council, supra note 94; Francisco, Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., supranote 93 (quoting J.M. Tuason & Co., Inc. v. Land Tenure
Administration, 142 Phil. 719; 31 SCRA 413 [1970], citing Baranda v. Gustilo, 248
Phil. 205; 165 SCRA 757 [1988]; Luz Farms v. Secretary of the Department of
Agrarian Reform, 270 Phil. 151; 192 SCRA 51 [1990]; Ordillo v. Commission on
Elections, 270 Phil. 183; 192 SCRA 100 [1990]).
176 Id.; Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,
412 Phil. 308; 359 SCRA 698 (2001) (citing J.M. Tuason & Co., Inc. v. Land Tenure
Administration, id.; Gold Creek Mining Corp. v. Rodriguez, 66 Phil. 259, 264
[1938]; Ruben C. Agpalo, Statutory Construction, p. 311 [1990]).
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352 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
meaning of the words used in the Constitution. It is presumed that the framers
and the people meant what they said when they said it, and that this
understanding was reflected in the Constitution and understood by the people in
the way it was meant to be understood when the fundamental law was ordained
and promulgated.177 As this Court has often said:
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin. It is
to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be given
their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer’s document, it being
essential for the rule of law to obtain that it should ever be present in the
people’s consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance
and negates the power of the courts to alter it, based on the postulate
that the framers and the people mean what they say. Thus, these
are the cases where the need for construction is reduced to a
minimum.178 (Emphases supplied)
_______________
 177 Id.; Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., supra note 93 (quoting J.M. Tuason & Co., Inc. v.
Land Tenure Administration, id.; citing Baranda v. Gustila, supra note 175 at p.
770; Luz Farms v. Secretary of the Department of Agrarian Reform, supra note
175; Ordillo v. Commission on Elections, supra note 175); Sarmiento III v. Mison,
240 Phil. 505; 156 SCRA 549 (1987); Gold Creek Mining Corp. v.
Rodriguez, supra note 176.
178 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., id. (quoting J.M. Tuason & Co., Inc. v. Land
Tenure Administration, id.).
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Saguisag vs. Ochoa, Jr.
It is only in those instances in which the constitutional provision is unclear,
ambiguous, or silent that further construction must be done to elicit its
meaning.179 In Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections,180 we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears
upon its face. The proper interpretation therefore depends more on how
it was understood by the people adopting it than in the framers’
understanding thereof. (Emphases supplied)
The effect of this statement is surprisingly profound, for, if taken literally, the
phrase “shall not be allowed in the Philippines” plainly refers to the entry of bases,
troops, or facilities in the country. The Oxford English Dictionary defines the word
“allow” as a transitive verb that means “to permit, enable”; “to give consent to the
occurrence of or relax restraint on (an action, event, or activity)”; “to consent to the
presence or attendance of (a person)”; and when with an adverbial of place, “to
permit (a person or animal) to go, come, or be in, out, near, etc.” 181 Black’s Law
Dictionary defines the term as one that means “[t]o grant, approve, or permit.”182
The verb “allow” is followed by the word “in,” which is a preposition used to
indicate “place or position in space or anything having material extension: Within
the limits or bounds
_______________
179 Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections, supranote 176.
180 Id. (quoting the Separate Opinion of Justice Mendoza in Civil Liberties
Union v. Executive Secretary, 272 Phil. 147; 194 SCRA 317 [1991]).
181 OED Online, available at <http://www.oed.com/view/Entry/5460>,
accessed on 28 October 2015; See also Merriam-Webster Online Dictionary,
“allow,” available at <http://www.merriamwebster.com/dictionary/allow>,
accessed on 28 October 2015.
182 Black’s Law Dictionary (2nd ed).
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354 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
of, within (any place or thing).”183 That something is the Philippines, which is
the noun that follows.
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.
The VFA has already allowed the entry of troops in the Philippines. This Court
stated in Lim v. Executive Secretary:
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word “activities” arose from accident. In
our view, it was deliberately made that way to give both parties a certain
leeway in negotiation. In this manner, visiting US forces may sojourn
in Philippine territory for purposes other than military. As
conceived, the joint exercises may include training on new techniques of
patrol and surveillance to protect the nation’s marine resources, sea search-
and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses,
medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that “Balikatan 02-1,” a
“mutual anti-terrorism advising, assisting and training exercise,” falls
under the umbrella of sanctioned or allowable activities in the context of
the agreement. Both the history and intent of the Mutual Defense Treaty
and the VFA support the conclusion that combat-related activities — as
opposed to com-
_______________
183 OED Online, available at
<http://www.oed.com/view/Entry/92970?rskey=JDaO1Y&result=6>, accessed on
28 October 2015; See also Merriam-Webster Online Dictionary, available at
<http://www.merriamwebster.com/dictionary/in>, accessed on 28 October 2015.
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Saguisag vs. Ochoa, Jr.
bat itself — such as the one subject of the instant petition, are indeed
authorized.184 (Emphasis supplied)
 Moreover, the Court indicated that the Constitution continues to govern the
conduct of foreign military troops in the Philippines,185readily implying the legality
of their initial entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive agreement,
since it merely involves “adjustments in detail” in the implementation of the MDT
and the VFA.186 It points out that there are existing treaties between the
Philippines and the U.S. that have already been concurred in by the Philippine
Senate and have thereby met the requirements of the Constitution under Section
25. Because of the status of these prior agreements, respondent emphasizes that
EDCA need not be transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with
the ponencia’s application of verba legis construction to the words of Article XVIII,
Section 25.187 It claims that the provision is “neither plain, nor that simple.”188 To
buttress its disagreement, the dissent states that the provision refers to a
historical incident, which is the expiration of the 1947 MBA. 189 Accordingly, this
position requires questioning the circumstances that led to the historical event,
and the meaning of the terms under Article XVIII, Section 25.
This objection is quite strange. The construction technique of verba legis is not
inapplicable just because a provision has
_______________
184 Supra note 69.
185 In the words of the Court: “The present Constitution contains key
provisions useful in determining the extent to which foreign military troops are
allowed in Philippine territory.” Lim v. Executive Secretary, id.
186 Memorandum of OSG, pp. 14-27, Rollo, pp. 444-457.
187 Dissenting Opinion of Justice Arturo D. Brion, p. 574.
188 Id., at p. 576.
189 Id.
356
356 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
a specific historical context. In fact, every provision of the Constitution has a
specific historical context. The purpose of constitutional and statutory construction
is to set tiers of interpretation to guide the Court as to how a particular provision
functions. Verba legis is of paramount consideration, but it is not the only
consideration. As this Court has often said:
We look to the language of the document itself in our search for its
meaning. We do not of course stop there, but that is where we begin.
It is to be assumed that the words in which constitutional provisions are
couched express the objective sought to be attained. They are to be given
their ordinary meaning except where technical terms are
employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer’s document, it being essential
for the rule of law to obtain that it should ever be present in the people’s
consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance
and negates the power of the courts to alter it, based on the postulate
that the framers and the people mean what they say. Thus, these
are the cases where the need for construction is reduced to a
minimum.190 (Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning of terms. In
this case, the phrase being construed is “shall not be allowed in the Philippines”
and not the preceding one referring to “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.” It is explicit
in the wording of the provision itself that any interpretation goes beyond the text
_______________
190 Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., supra note 93 (quoting J.M. Tuason & Co., Inc. v.
Land Tenure Administration, supra note 175).
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itself and into the discussion of the framers, the context of the Constitutional
Commission’s time of drafting, and the history of the 1947 MBA. Without reference
to these factors, a reader would not understand those terms. However, for the
phrase “shall not be allowed in the Philippines,” there is no need for such reference.
The law is clear. No less than the Senate understood this when it ratified the VFA.
4. The President may gener-
ally enter into executive
agreements subject to limi-
tations defined by the Con-
stitution and may be in fur-
therance of a treaty already
concurred in by the Senate.
We discuss in this section why the President can enter into executive
agreements.
It would be helpful to put into context the contested language found in Article
XVIII, Section 25. Its more exacting requirement was introduced because of the
previous experience of the country when its representatives felt compelled to
consent to the old MBA.191 They felt constrained to agree to the MBA in fulfillment
of one of the major conditions for the country to gain independence from the
U.S.192 As a result of that experience, a second layer of consent for agreements that
_______________
191 See IV Record, Constitutional Commission, p. 759 (18 Sep. 1986): “By
inequalities, is the Commissioner referring to the one-sided provisions, the onerous
conditions of the RP-US Bases Agreement?” Nicolas v. Romulo, supra note 39 at p.
280; p. 458.
192 See Treaty of General Relations between the Republic of the Philippines
and the United States of America, October 22, 1946,
Art. 1 (1946); Philippine Independence Act (Tydings-McDuffie Act), Pub.L. 73-127,
48 Stat. 456, (24 March 1934), Secs. 5 and 10; Foreign Service Institute, supra note
24 at pp. ix-x.
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358 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
allow military bases, troops and facilities in the country is now articulated in
Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way that
we completely ignore the intent of our constitutional framers when they provided
for that additional layer, nor the vigorous statements of this Court that affirm the
continued existence of that class of international agreements called “executive
agreements.”
The power of the President to enter into binding executive agreements without
Senate concurrence is already well-established in this jurisdiction.193 That power
has been alluded to in our present and past Constitutions,194 in various
statutes,195 in Supreme Court decisions,196 and during the
_______________
193 Land Bank of the Philippines v. Atlanta Industries, Inc., supra note
172; Bayan Muna v. Romulo, supra note 114; Nicolas v. Romulo, supra note
39; Neri v. Senate Committee on Accountability of Public Officers and
Investigations, supra note 172; Department of Budget and Management
Procurement Service v. Kolonwel Trading, 551 Phil. 1030; 524 SCRA 591
(2007); Abaya v. Ebdane, Jr., supra note 172; Republic v. Quasha, supra note
173; Adolfo v. Court of First Instance of Zambales, supra note 173; Commissioner
of Internal Revenue v. Guerrero, supra note 173; Gonzales v.
Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea
Trading, supra note 173; USAFFE Veterans Ass’n., Inc. v. Treasurer of the
Phil.,supra note 173; Uy Matiao & Co., Inc. v. City of Cebu, supra note 173; Abbot
Laboratories v. Agrava, supra note 173; II Record, Constitutional Commission, pp.
544-546 (31 July 1986); Cortes, supra note 15 at p. 190; Sinco, supra note 15 at pp.
303-305.
194 Constitution, Art. VIII (Judicial Department), Secs. 4(2) & 5(2)(a);
Constitution (1973, as amended), Art. X (The Judiciary), Secs. 2(2) & 5(2)(a), Art.
XVII (Transitory Provisions), Sec. 12; Constitution (1935), Ordinance Appended to
the Constitution or “Parity Amendment.”
195 Republic Act No. 9184 (Government Procurement Reform Act) (2003), Sec.
4; Administrative Code of 1987, Book II, Sec. 18(2)(a); Presidential Decree No.
1464, as amended (Tariff and Customs Code of 1978), Sec. 402(f); Republic Act No.
1789 (Reparations Law) (1957), Sec. 18; Commonwealth Act No. 733 (Acceptance
of
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Saguisag vs. Ochoa, Jr.
deliberations of the Constitutional Commission.197 They cover a wide array of
subjects with varying scopes and purposes,198including those that involve the
presence of foreign military forces in the country.199
As the sole organ of our foreign relations200 and the constitutionally assigned
chief architect of our foreign policy,201 the President is vested with the exclusive
power to conduct and manage the country’s interface with other states and
governments. Being the principal representative of the Philippines, the Chief
Executive speaks and listens for the nation; initiates, maintains, and develops
diplomatic relations with other states and governments; negotiates and enters into
international agreements; promotes trade, investments, tourism and
_______________
Executive Agreement Under Title IV of [United States] Public Law 371-
79thCongress) (1946).
196 Neri v. Senate Committee on Accountability of Public Officers and
Investigations, supra note 172; Republic v. Quasha, supra note 173; Commissioner
of Internal Revenue v. Guerrero, supra note 173; Gonzales v.
Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea
Trading, supra note 173; USAFFE Veterans Ass’n., Inc. v. Treasurer of the
Phil., supra note 173; Abbot Laboratories v. Agrava, supra note 173.
197 II Record, Constitutional Commission, supra note 193.
198 Bayan Muna v. Romulo, supra note 114. See also Sinco,supra note 15.
199 See generally: Nicolas v. Romulo, supra note 39; Lim v. Executive
Secretary, supra note 69.
200 See: Akbayan Citizens Action Party v. Aquino, supra note 15; Pimentel,
Jr. v. Office of the Executive Secretary, supra note 15. See Constitution, Art. VII,
Sec. 1, in relation to Administrative Code of 1987, Book IV (Executive Branch),
Title I (Foreign Affairs), Secs. 3(1) and 20; Sinco, supra note 15 at p. 297.
201 Pimentel, Jr. v. Office of the Executive Secretary, id. See Constitution, Art.
VII, Sec. 1, in relation to Administrative Code of 1987, Book IV (Executive Branch),
Title I (Foreign Affairs), Secs. 3(1) and 20; Sinco, id., at p. 298.
360
360 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
 other economic relations; and settles international disputes with other
states.202
As previously discussed, this constitutional mandate emanates from the
inherent power of the President to enter into agreements with other states,
including the prerogative to conclude binding executive agreements that do not
require further Senate concurrence. The existence of this presidential power 203 is
so well-entrenched that Section 5(2)(a), Article VIII of the Constitution, even
provides for a check on its exercise. As expressed below, executive agreements are
among those official governmental acts that can be the subject of this Court’s power
of judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. (Emphases supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements are
defined as “international agreements
_______________
202 See: Constitution, Art. VII, Sec. 1, in relation to Administrative Code of
1987, Book III (Office of the President), Title I (Powers of the President), Sec. 1
and Book IV (Executive Branch), Title I (Foreign Affairs), Secs. 3(1) and 20 and
Title III (Justice), Sec. 35(10); Pimentel, Jr. v. Office of the Executive
Secretary, supra note 15 (on ratification of treaties); Vinuya v. Executive
Secretary, supra note 17 (on espousing claims against foreign
governments); Abaya v. Ebdane, Jr., supra note 172 (on contracting foreign
loans); People’s Movement for Press Freedom v. Manglapus, supra note 15 (on
treaty negotiations with foreign states); Sinco, id., at p. 298.
203 See Sinco, id., at pp. 297-298.
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embodying adjustments of detail carrying out well-established national
policies and traditions and those involving arrangements of a more or less
temporary nature.”204 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.205 They are no longer limited to the traditional subjects that are
usually covered by executive agreements as identified in Eastern Sea Trading. The
Court thoroughly discussed this matter in the following manner:
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not
cast in stone. x x x.
As may be noted, almost half a century has elapsed sincethe Court
rendered its decision in Eastern Sea Trading. Since then, the conduct
of foreign affairs has become more complex and the domain of
international law wider, as to include such subjects as human rights,
the environment, and the sea. In fact, in the US alone, the executive
agreements executed by its President from 1980 to 2000 covered subjects
such as defense, trade, scientific cooperation, aviation, atomic
energy, environmental cooperation, peace corps, arms limitation,
and nuclear safety, among others. Surely, the enumeration
in Eastern Sea Trading cannot circumscribe the option of each
state on the matter of which the international agreement format
would be convenient to serve its best interest. As Francis Sayre said
in his work referred to earlier:
. . . It would be useless to undertake to discuss here the
large variety of executive agreements as such concluded
_______________
204 Commissioner of Customs v. Eastern Sea Trading, supra note 173.
205 Bayan Muna v. Romulo, supra note 114. See also Sinco, supra note 15.
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362 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
from time to time. Hundreds of executive agreements, other
than those entered into under the trade-agreement act, have been
negotiated with foreign governments. . . . They cover such subjects
as the inspection of vessels, navigation dues, income tax on shipping
profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal
matters, the registration of trademarks and copyrights, etc. . . .
(Emphases supplied)
One of the distinguishing features of executive agreements is that their
validity and effectivity are not affected by a lack of Senate concurrence. 206 This
distinctive feature was recognized as early as in Eastern Sea Trading (1961), viz.:
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.
xxxx
 [T]he right of the Executive to enter into binding
agreements without the necessity of subsequent Congressional
approval has been confirmed by long usage. From the earliest days of
our history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-nation rights,
patent rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has
never been seriously questioned by our courts. (Emphases supplied)
_______________
206 Commissioner of Customs v. Eastern Sea Trading, supra note 173.
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That notion was carried over to the present Constitution. In fact, the framers
specifically deliberated on whether the general term “international agreement”
included executive agreements, and whether it was necessary to include an
express proviso that would exclude executive agreements from the requirement of
Senate concurrence. After noted constitutionalist Fr. Joaquin Bernas quoted the
Court’s ruling in Eastern Sea Trading, the Constitutional Commission members
ultimately decided that the term “international agreements” as contemplated in
Section 21, Article VII, does not include executive agreements, and that
a proviso is no longer needed. Their discussion is reproduced below:207
MS. AQUINO: Madam President, first I would like a clarification
from the Committee. We have retained the words “international
agreement” which I think is the correct judgment on the matter because an
international agreement is different from a treaty. A treaty is a contract
between parties which is in the nature of international agreement and also
a municipal law in the sense that the people are bound. So there is a
conceptual difference. However, I would like to be clarified if the
international agreements include executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to
these international negotiations stipulate the conditions which are
necessary for the agreement or whatever it may be to become valid or
effective as regards the parties.
MS. AQUINO: Would that depend on the parties or would that depend
on the nature of the executive agreement? According to common usage,
there are two types of executive agreement: one is purely pro-
_______________
207 II Record, Constitutional Commission, pp. 544-546 (31 July 1986). See
also Defensor-Santiago, Miriam, International Agreements in Constitutional Law:
The Suspended RP-China (ZTE) Loan Agreement, 53 Ateneo L.J. 537, 539 (2008).
364
364 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
ceeding from an executive act which affects external relations
independent of the legislative and the other is anexecutive act in
pursuance of legislative authorization. Thefirst kind might take the
form of just conventions or exchanges of notes or protocol while the
other, which would be pursuant to the legislative authorization, may
be in the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally made
to implement a treaty already enforced or to determine the details
for the implementation of the treaty. We are speaking of executive
agreements, not international agreements.
MS. AQUINO: I am in full agreement with that, except that it does
not cover the first kind of executive agreement which is just protocol or an
exchange of notes and this would be in the nature of reinforcement of claims
of a citizen against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification
for validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we
should provide, unless the Committee explains to us otherwise, an
explicit proviso which would except executive agreements from the
requirement of concurrence of two-thirds of the Members of the
Senate. Unless I am enlightened by the Committee I propose that
tentatively, the sentence should read. “No treaty or international
agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and
effective.”
FR. BERNAS: I wonder if a quotation from the Supreme Court
decision [in Eastern Sea Trading] might help clarify this:
The right of the executive to enter into binding
agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage.
From the earliest days of our history, we have
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entered into executive agreements covering such subjects as
commercial and consular relations, most favored nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of this has never
been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been
concluded by the executive of various countries under the Act of Congress
 of March 3, 1881 (21 Stat. 502) . . . International agreements involving
political issues or changes of national policy and those involving
international agreements of a permanent character usually take the
form of treaties. But international agreements embodying adjustments
of detail, carrying out well-established national policies
and traditions and those involving arrangements of a more or less
temporary nature usually take the form of executive agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the
executive agreements?
FR. BERNAS: What we are referring to, therefore, when we say
international agreements which need concurrenceby at least two-
thirds are those which are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are
executive agreements essentially but which are proceeding from the
authorization of Congress. If that is our understanding, then I am willing
to withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then
it does not need subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
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366 SUPREME COURT REPORTS ANNOTATED
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THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on
the definition of “executive agreements” and that would make
unnecessary any explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of “executive
agreements” because I heard that these executive agreements must rely on
treaties. In other words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as
executive agreements being the implementation of treaties, details of which
do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam
President? Would 99 years be considered permanent? What would be the
measure of permanency? I do not conceive of a treaty that is going to be
forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner’s question is
whether this type of agreement should be included in a provision of the
Constitution requiring the concurrence of Congress.
MR. GUINGONA: It depends on the concept of the executive
agreement of which I am not clear. If the executive agreement
partakes of the nature of a treaty, then it should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a
treaty, it is within the power of the Constitutional Commission to require
that.
MR. GUINGONA: Yes. That is why I am trying to clarify
whether the words “international agreements” would include
executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
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MR. ROMULO: I wish to be recognized first. I have only one question.
Do we take it, therefore, that as far as the Committee is concerned, the
term “international agreements” does not include the term
“executive agreements” as read by the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under Section
21 was again recognized in BAYAN v. Zamora and in Bayan Muna v.
Romulo. These cases, both decided under the aegis of the present Constitution,
quoted Eastern Sea Trading in reiterating that executive agreements are valid
and binding even without the concurrence of the Senate.
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are concluded. As culled
from the aforequoted deliberations of the Constitutional Commission, past
Supreme Court Decisions, and works of noted scholars,208 executive agreements
merely involve arrangements on the implementation of existing policies, rules,
laws, or agreements. They are concluded (1) to adjust the details of a treaty;209 (2)
pursuant
_______________
208 Bayan Muna v. Romulo, supra note 114 at p. 261; p. 253; Gonzales v.
Hechanova, supra note 173; Commissioner of Customs v. Eastern Sea
Trading, supranote 173; II Record, Constitutional Commission, pp. 544-546 (31
July 1986); Cortes, supra note 15; Sinco, supra note 15.
209 See, e.g.: Bayan Muna v. Romulo, id. (on the transfer or surrender of US
nationals in the Philippines who may be sued before international
tribunals); Nicolas v. Romulo, supra note 39 (on agreement concerning the
detention of a member of the U.S. Armed Forces, who was accused of committing
a crime in the Philippines); Adolfo v. Court of First Instance of
Zambales, supra note 173 (on exchange of notes pursuant to the 1947 MBA);
Treaty of General Relations Between the Republic of the Philippines and the
United States of America (1946).
 368
368 SUPREME COURT REPORTS ANNOTATED
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to or upon confirmation by an act of the Legislature;210 or (3) in the exercise of
the President’s independent powers under the Constitution.211 The raison d’être of
executive agreements hinges on prior constitutional or legislative authorizations.
The special nature of an executive agreement is not just a domestic variation
in international agreements. International practice has accepted the use of various
forms and designations of international agreements, ranging from the traditional
notion of a treaty — which connotes a formal, solemn instrument — to
engagements concluded in modern, simplified forms that no longer necessitate
ratification.212 An international agreement may take different forms: treaty, act,
protocol, agreement, concordat, compromis d’arbitrage, convention, covenant,
declaration, exchange of notes, statute, pact, charter, agreed minute,
memorandum of agreement,
_______________
210 See, e.g.: Republic v. Quasha, supra note 173; Commissioner of Internal
Revenue v. Guerrero, supra note 173; Abbot Laboratories v. Agrava, supra note 173
(on the interpretation of the provision in the Philippine Patent Law of 1947
concerning the reciprocity measure on priority rights to be granted to U.S.
nationals); Uy Matiao & Co., Inc. v. City of Cebu, supra note 173; Republic Act No.
9 —Authority of President to Enter into Agreement with US under Republic of the
Phil. Military Assistance Act (1946).
211 See, e.g.: Land Bank v. Atlanta Industries, Inc., supra note 172 (on foreign
loan agreement); Bayan Muna v. Romulo, supra note 114; Department of Budget
& Management Procurement Service v. Kolonwel Trading, supra note 193 (on
foreign loan agreement); Abaya v. Ebdane, Jr., supra note 172 (on foreign loan
agreement); Commissioner of Customs v. Eastern Sea Trading, supra note 173 (on
foreign trade and financial agreements); USAFFE Veterans Ass’n., Inc. v.
Treasurer of the Phil., supra note 173 (on conversion of unspent fund as a foreign
loan). But see on limitations: Gonzales v. Hechanova, supra note 173.
212 See generally: Bayan (Bagong Alyansang Makabayan) v.
Zamora, supra note 23; Gautier, Philippe, 1969 Vienna Convention, Article 2 Use
of Terms, in The Vienna Conventions on the Law of Treaties: A Commentary, Vol.
I, pp. 35-36 (Olivier Corten & Pierre Klein eds., 2011).
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modus vivendi, or some other form.213 Consequently, under international law,
the distinction between a treaty and an international agreement or even an
executive agreement is irrelevant for purposes of determining international rights
and obligations.
However, this principle does not mean that the domestic law
distinguishing treaties, international agreements, and executive agreements is
relegated to a mere variation in form, or that the constitutional requirement of
Senate concurrence is demoted to an optional constitutional directive. There
remain two very important features that distinguish treaties from executive
agreements and translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied
authorization under the Constitution, statutes, or treaties. The absence of these
precedents puts the validity and effectivity of executive agreements under serious
question for the main function of the Executive is to enforce the Constitution and
the laws enacted by the Legislature, not to defeat or interfere in the performance
of these rules.214 In turn, executive agreements cannot create new international
obligations that are not expressly allowed or reasonably implied in the law they
purport to implement.
Second, treaties are, by their very nature, considered superior to executive
agreements. Treaties are products of the acts of the Executive and the
Senate215 unlike executive agreements, which are solely executive
actions.216 Because of legislative participation through the Senate, a treaty is
regarded
_______________
213 See generally: Bayan (Bagong Alyansang Makabayan) v. Zamora, id.;
Gautier, id., at p. 37 (quoting Customs régime between Germany and Austria,
Advisory Opinion, 1931 PCIJ, Ser. A/B no. 41, p. 47).
214 Gonzales v. Hechanova, supra note 173.
215 Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court of First
Instance of Zambales, supra note 173).
216 See: Bayan Muna v. Romulo, id.
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370 SUPREME COURT REPORTS ANNOTATED
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as being on the same level as a statute.217 If there is an irreconcilable conflict,
a later law or treaty takes precedence over one that is prior. 218 An executive
agreement is treated differently. Executive agreements that are inconsistent with
either a law or a treaty are considered ineffective.219 Both types of international
agreement are nevertheless subject to the supremacy of the Constitution.220
This rule does not imply, though, that the President is given carte blanche to
exercise this discretion. Although the Chief Executive wields the exclusive
authority to conduct our foreign relations, this power must still be exercised within
the context and the parameters set by the Constitution, as well as by existing
domestic and international laws. There are constitutional provisions that restrict
or limit the President’s prerogative in concluding international agreements, such
as those that involve the following:
 a. The policy of freedom from nuclear weapons within Philippine
territory.221
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.222
_______________
217 Pharmaceutical and Health Care Association of the Philippines v. Duque
III, 561 Phil. 386; 535 SCRA 265 (2007); Lim v. Executive Secretary, supra note
69; Secretary of Justice v. Lantion, supra note 17; Philip Morris, Inc. v. Court of
Appeals, G.R. No. 91332, 16 July 1993, 224 SCRA 576.
218 See: Bayan Muna v. Romulo, supra note 114 (affirming Adolfo v. Court of
First Instance of Zambales, supra note 173); Civil Code, Art. 7.
219 Id.; Nicolas v. Romulo, supra note 39; Gonzales v. Hechanova, supra note
173; Civil Code, Art. 7.
220 See Constitution, Art. VIII, Sec. 5(2); Civil Code, Art. 7.
221 Id., Art. II, Sec. 8.
222 Id., Art. VI, Sec. 28(2).
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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.223
d. The contracting or guaranteeing, on behalf of the Philippines, of
foreign loans that must be previously concurred in by the Monetary
Board.224
e. The authorization of the presence of foreign military bases, troops, or
facilities in the country must be in the form of a treaty duly concurred in
by the Senate.225
f. For agreements that do not fall under paragraph 5, the concurrence
of the Senate is required, should the form of the government chosen be a
treaty.
5. The President had the
choice to enter into
EDCA by way of an ex-
ecutive agreement or a
treaty.
No court can tell the President to desist from choosing an executive agreement
over a treaty to embody an international agreement, unless the case falls squarely
within Article VIII, Section 25.
As can be gleaned from the debates among the members of the Constitutional
Commission, they were aware that legally binding international agreements were
being entered into by countries in forms other than a treaty. At the same time, it
is clear that they were also keen to preserve the concept of “executive agreements”
and the right of the President to enter into such agreements.
_______________
223 Id., Art. VI, Sec. 28(4).
224 Id., Art. VII, Sec. 20.
225 Id., Art. XVIII, Sec. 25.
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372 SUPREME COURT REPORTS ANNOTATED
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What we can glean from the discussions of the Constitutional Commissioners
is that they understood the following realities:
1. Treaties, international agreements, and executive agreements are all
constitutional manifestations of the conduct of foreign affairs with their distinct
legal characteristics.
a. Treaties are formal contracts between the Philippines and other
States-parties, which are in the nature of international agreements, and
also of municipal laws in the sense of their binding nature.226
b. International agreements are similar instruments, the provisions of
which may require the ratification of a designated number of parties
thereto. These agreements involving political issues or changes in national
policy, as well as those involving international agreements of a permanent
character, usually take the form of treaties. They may also include
commercial agreements, which are executive agreements essentially, but
which proceed from previous authorization by Congress, thus dispensing
with the requirement of concurrence by the Senate.227
c. Executive agreements are generally intended to implement a treaty
already enforced or to determine the details of the implementation thereof
that do not affect the sovereignty of the State.228
2. Treaties and international agreements that cannot be mere executive
agreements must, by constitutional
_______________
226 II Record, Constitutional Commission, p. 544 (31 July 1986).
227 Id., at p. 545.
228 Id.
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decree, be concurred in by at least two-thirds of the Senate.
3. However, an agreement — the subject of which is the entry of foreign
military troops, bases, or facilities — is particularly restricted. The requirements
are that it be in the form of a treaty concurred in by the Senate; that when
Congress so requires, it be ratified by a majority of the votes cast by the people in
a national referendum held for that purpose; and that it be recognized as a treaty
by the other contracting State.
4. Thus, executive agreements can continue to exist as a species of
international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope
of her constitutional authority and discretion when she chose to enter into the RP-
U.S. Non-Surrender Agreement in the form of an executive agreement, instead of
a treaty, and in ratifying the agreement without Senate concurrence. The Court En
Banc discussed this intrinsic presidential prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. x x x x. Pressing its point, petitioner submits
that the subject of the Agreement does not fall under any of the subject-
categories that x x x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements
and settlement of claims.
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast in
stone. There are no hard and fast rules on the propriety of entering,
on a
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374 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in
the choice of the form of agreement is the parties’ intent and desire to
craft an international agreement in the form they so wish to
further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt
servanda principle.
xxxx
But over and above the foregoing considerations is the fact that —
save for the situation and matters contemplated in Sec. 25, Art. XVIII of
the Constitution —when a treaty is required, the Constitution does not
classify any subject, like that involving political issues, to be in the
form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote
defined therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in
the external affairs of the nation is, as Bayan would put it, “executive
altogether.” The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-
03, then President Gloria Macapagal-Arroyo, represented by the Secretary
of Foreign Affairs, acted within the scope of the authority and
discretion vested in her by the Constitution. At the end of the day, the
President — by ratifying, thru her deputies, the non-surrender
agreement — did nothing more than discharge a constitutional
duty and exercise a prerogative that pertains to her office.
(Emphases supplied)
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Indeed, in the field of external affairs, the President must be given a larger
measure of authority and wider discretion, subject only to the least amount of
checks and restrictions under the Constitution.229 The rationale behind this power
and discretion was recognized by the Court in Vinuya v. Romulo, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of
International Agreements and its Ratification, thus, correctly reflected the
inherent powers of the President when it stated that the DFA “shall determine
whether an agreement is an executive agreement or a treaty.”
Accordingly, in the exercise of its power of judicial review, the Court does not
look into whether an international agreement should be in the form of a treaty or
an executive agreement, save in cases in which the Constitution or a statute
requires otherwise. Rather, in view of the vast constitutional powers and
prerogatives granted to the President in the field of foreign affairs, the task of the
Court is to determine whether the international agreement is consistent with the
applicable limitations.
6. Executive agreements may
cover the matter of foreign
military forces if it merely
involves detail adjustments.
_______________
229 Sinco, supra note 15 at p. 297. See: Vinuya v. Romulo, supra note 17 (on
espousal of the claims of Philippine nationals against a foreign
government); Pimentel, Jr. v. Office of the Executive Secretary, supra note 15 (on
ratification of international agreements); Secretary of Justice v.
Lantion, supra note 17 (on temporarily withholding of the right to notice and
hearing during the evaluation stage of the extradition process); People’s Movement
for Press Freedom v. Manglapus, supra note 15 (on the imposition of secrecy in
treaty negotiations with foreign countries).
 230 Vinuya v. Romulo, id.
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376 SUPREME COURT REPORTS ANNOTATED
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The practice of resorting to executive agreements in adjusting the details of a
law or a treaty that already deals with the presence of foreign military forces is
not at all unusual in this jurisdiction. In fact, the Court has already implicitly
acknowledged this practice in Lim v. Executive Secretary.231 In that case, the Court
was asked to scrutinize the constitutionality of the Terms of Reference of
the Balikatan 02-1 joint military exercises, which sought to implement the VFA.
Concluded in the form of an executive agreement, the Terms of Reference detailed
the coverage of the term “activities” mentioned in the treaty and settled the
matters pertaining to the construction of temporary structures for the U.S. troops
during the activities; the duration and location of the exercises; the number of
participants; and the extent of and limitations on the activities of the U.S. forces.
The Court upheld the Terms of Reference as being consistent with the VFA. It no
longer took issue with the fact that the Balikatan Terms of Reference was not in
the form of a treaty concurred in by the Senate, even if it dealt with the regulation
of the activities of foreign military forces on Philippine territory.
In Nicolas v. Romulo,232 the Court again impliedly affirmed the use of an
executive agreement in an attempt to adjust the details of a provision of the VFA.
The Philippines and the U.S. entered into the Romulo-Kenney Agreement, which
undertook to clarify the detention of a U.S. Armed Forces member, whose case was
pending appeal after his conviction by a trial court for the crime of rape. In testing
the validity of the latter agreement, the Court precisely alluded to one of the
inherent limitations of an executive agreement: it cannot go beyond the terms of
the treaty it purports to implement. It was eventually ruled that the Romulo-
Kenney Agreement was “not in accord” with the VFA, since the former was
squarely inconsistent with a provision in the treaty requiring that the detention
be “by Philippine authorities.” Consequently, the
_______________
231 Lim v. Executive Secretary, supra note 69.
232 Nicolas v. Romulo, supra note 39.
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Court ordered the Secretary of Foreign Affairs to comply with the VFA and
“forthwith negotiate with the United States representatives for the appropriate
agreement on detention facilities under Philippine authorities as provided in Art.
V, Sec. 10 of the VFA.”233
Culling from the foregoing discussions, we reiterate the following
pronouncements to guide us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent
requirements that must be fulfilled by the international agreement allowing the
presence of foreign military bases, troops, or facilities in the Philippines: (a) the
agreement must be in the form of a treaty, and (b) it must be duly concurred in by
the Senate.
2. If the agreement is not covered by the above situation, then the President
may choose the form of the agreement (i.e., either an executive agreement or a
treaty), provided that the agreement dealing with foreign military bases, troops,
or facilities is not the principal agreement that first allows their entry or presence
in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations,
and standards set by the law and/or treaty that the former purports to implement;
and must not unduly expand the international obligation expressly mentioned or
necessarily implied in the law or treaty.
4. The executive agreement must be consistent with the Constitution, as well
as with existing laws and treaties.
_______________
233 Id., at p. 291; p. 468.
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378 SUPREME COURT REPORTS ANNOTATED
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In light of the President’s choice to enter into EDCA in the form of an executive
agreement, respondents carry the burden of proving that it is a mere
implementation of existing laws and treaties concurred in by the Senate. EDCA
must thus be carefully dissected to ascertain if it remains within the legal
parameters of a valid executive agreement.
7. EDCA is consistent with
the content, purpose, and
framework of the MDT
and the VFA.
The starting point of our analysis is the rule that “an executive agreement x x x
may not be used to amend a treaty.”234 In Lim v. Executive Secretary and
in Nicolas v. Romulo, the Court approached the question of the validity of
executive agreements by comparing them with the general framework and the
specific provisions of the treaties they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized
by studying “the framework of the treaty antecedents to which the Philippines
bound itself,”235 i.e., the MDT and the VFA. The Court proceeded to examine the
extent of the term “activities” as contemplated in Articles 1236 and II237 of the VFA.
It later on found that the term “ac-
_______________
234 Bayan Muna v. Romulo, supra note 114 at p. 273; p. 263. See also: Nicolas
v. Romulo, id.; Adolfo v. Court of First Instance of Zambales, supra note 173; Abbot
Laboratories v. Agrava, supra note 173. Senate Resolution No. 18, dated 27 May
1999, which embodies the concurrence of the Senate in the VFA, stresses in its
preamble that “nothing in this Resolution or in the VFA shall be construed
as authorizing the President of the Philippines alone to bind the Philippines
to any amendment of any provision of the VFA.” (Emphases supplied)
235 Lim v. Executive Secretary, supra note 69 at p. 571; p. 752.
236 The provision states: “As used in this Agreement, ‘United States
personnel’ means United States military and civilian per-
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tivities” was deliberately left undefined and ambiguous in order to permit “a
wide scope of undertakings subject only to the approval of the Philippine
government”238 and thereby allow the parties “a certain leeway in
negotiation.”239 The Court eventually ruled that the Terms of Reference fell within
the sanctioned or allowable activities, especially in the context of the VFA and the
MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the
provisions of the VFA on custody and detention to ascertain the validity of the
Romulo-Kenney Agreement.240 It eventually found that the two international
agreements were not in accord, since the Romulo-Kenney Agreement had
stipulated that U.S. military personnel shall be detained at the U.S. Embassy
Compound and guarded by U.S. military personnel, instead of by Philippine
authorities. According to the Court, the parties “recognized the difference between
_______________
sonnel temporarily in the Philippines in connection with activities
approvedby the Philippine Government. x x x.” (Emphases supplied)
237 The provision states: “It is the duty of United States personnel to respect
the laws of the Republic of the Philippines and to abstain from any activity
inconsistent with the spirit of this agreement, and, in particular, from any
political activity in the Philippines. The Government of the United States
shall take all measures within its authority to ensure that this is done.” (Emphases
supplied)
238 Lim v. Executive Secretary, supra note 69 at p. 572; pp. 752-753.
239 Id., at p. 575; p. 755.
240 According to the agreement: “[H]e will be detained at the first floor, Rowe
(JUSMAG) Building, U.S. Embassy Compound in a room of approximately 10 x 12
square feet. He will be guarded round the clock by U.S. military personnel. The
Philippine police and jail authorities, under the direct supervision of the Philippine
Department of the Interior and Local Government (DILG) will have access to the
place of detention to ensure the United States is in compliance with the terms of
the VFA.”
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380 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
custody during the trial and detention after conviction.”241Pursuant to Article
V(6) of the VFA, the custody of a U.S. military personnel resides with U.S. military
authorities during trial. Once there is a finding of guilt, Article V(10) requires that
the confinement or detention be “by Philippine authorities.”
Justice Marvic M.V.F. Leonen’s Dissenting Opinion posits that EDCA
“substantially modifies or amends the VFA”242 and follows with an enumeration of
the differences between EDCA and the VFA. While these arguments will be
rebutted more fully further on, an initial answer can already be given to each of
the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as
the VFA does, but allows temporary stationing on a rotational basis of U.S.
military personnel and their contractors in physical locations with permanent
facilities and pre-positioned military materiel.
This argument does not take into account that these permanent facilities,
while built by U.S. forces, are to be owned by the Philippines once
constructed.243 Even the VFA allowed construction for the benefit of U.S. forces
during their temporary visits.
The second difference stated by the dissent is that EDCA allows the
prepositioning of military materiel, which can include various types of warships,
fighter planes, bombers, and vessels, as well as land and amphibious vehicles and
their corresponding ammunition.244
However, the VFA clearly allows the same kind of equipment, vehicles, vessels,
and aircraft to be brought into the country. Articles VII and VIII of the VFA
contemplates that
_______________
241 Nicolas v. Romulo, supra note 39 at p. 287; p. 464.
242 Dissenting Opinion of Justice Marvic M.V.F. Leonen, p. 630.
243 EDCA, Art. V(1) and (4).
244 Dissenting Opinion of Justice Leonen, p. 631.
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Saguisag vs. Ochoa, Jr.
U.S. equipment, materials, supplies, and other property are imported into or
acquired in the Philippines by or on behalf of the U.S. Armed Forces; as are
vehicles, vessels, and aircraft operated by or for U.S. forces in connection with
activities under the VFA. These provisions likewise provide for the waiver of the
specific duties, taxes, charges, and fees that correspond to these equipment.
The third difference adverted to by the Justice Leonen’s dissent is that the VFA
contemplates the entry of troops for training exercises, whereas EDCA allows the
use of territory for launching military and paramilitary operations conducted in
other states.245 The dissent of Justice Teresita J. Leonardo-De Castro also notes
that VFA was intended for non-combat activities only, whereas the entry and
activities of U.S. forces into Agreed Locations were borne of military necessity or
had a martial character, and were therefore not contemplated by the VFA.246
This Court’s jurisprudence however established in no uncertain terms that
combat-related activities, as opposed to actual combat, were allowed under the
MDT and VFA, viz.:
treaty, but are not necessarily expressed word-for-word in the mother treaty. This
concern shall be further elucidated in this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA does
not have provisions that may be construed as a restriction on or modification of
obligations found in existing statues, including the jurisdiction of courts, local
autonomy, and taxation. Implied in this argument is that EDCA contains such
restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of EDCA.
Both the VFA and EDCA ensure Philippine jurisdiction in all instances
contemplated by both agreements, with the exception of those outlined by the VFA
in
_______________

Both the history and intent of the Mutual Defense Treaty and the VFA 248 Dissenting Opinion of Justice Leonen, p. 631.
support the conclusion that combat-related activities as opposed to combat 249 Id.
itself such as the one subject of the instant petition, are indeed
authorized.247
383
Hence, even if EDCA was borne of military necessity, it cannot be said to have
VOL. 779, JANUARY 12, 2016 383
strayed from the intent of the VFA since EDCA’s combat-related components are
allowed under the treaty. Saguisag vs. Ochoa, Jr.
_______________
Articles III-VI. In the VFA, taxes are clearly waived whereas in EDCA, taxes
245 Id. are assumed by the government as will be discussed later on. This fact does not,
246 Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De therefore, produce a diminution of jurisdiction on the part of the Philippines, but
Castro, p. 528. rather a recognition of sovereignty and the rights that attend it, some of which
247 Lim v. Executive Secretary, supra note 69 at p. 575; p. 755. may be waived as in the cases under Articles III-VI of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared with
those of the MDT and the VFA, which are the two treaties from which EDCA
382 allegedly draws its validity.
382 SUPREME COURT REPORTS ANNOTATED
“Authorized presence” under
Saguisag vs. Ochoa, Jr. the VFA versus “authorized
activities” under EDCA: (1)
Moreover, both the VFA and EDCA are silent on what these activities actually U.S. personnel and (2) U.S.
are. Both the VFA and EDCA deal with the presence of U.S. forces within the contractors.
Philippines, but make no mention of being platforms for activity beyond Philippine
territory. While it may be that, as applied, military operations under either the The OSG argues250 that EDCA merely details existing policies under the MDT
VFA or EDCA would be carried out in the future, the scope of judicial review does and the VFA. It explains that EDCA articulates the principle of defensive
not cover potential breaches of discretion but only actual occurrences or blatantly preparation embodied in Article II of the MDT; and seeks to enhance the defensive,
illegal provisions. Hence, we cannot invalidate EDCA on the basis of the strategic, and technological capabilities of both parties pursuant to the objective of
potentially abusive use of its provisions. the treaty to strengthen those capabilities to prevent or resist a possible armed
The fourth difference is that EDCA supposedly introduces a new concept not attack. Respondent also points out that EDCA simply implements Article I of the
contemplated in the VFA or the MDT: Agreed Locations, Contractors, VFA, which already allows the entry of U.S. troops and personnel into the country.
Prepositioning, and Operational Control.248 Respondent stresses this Court’s recognition in Lim v. Executive Secretary that
As previously mentioned, these points shall be addressed fully and individually U.S. troops and personnel are authorized to conduct activities that promote the
in the latter analysis of EDCA’s provisions. However, it must already be clarified goal of maintaining and developing their defense capability.
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
 250 Memorandum of OSG, pp. 14-27, Rollo (G.R. No. 212426), pp. 444-457.
384
384 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Petitioners contest251 the assertion that the provisions of EDCA merely
implement the MDT. According to them, the treaty does not specifically authorize
the entry of U.S. troops in the country in order to maintain and develop the
individual and collective capacities of both the Philippines and the U.S. to resist
an armed attack. They emphasize that the treaty was concluded at a time when
there was as yet no specific constitutional prohibition on the presence of foreign
military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the
VFA. They assert that the agreement covers only short-term or temporary visits of
U.S. troops “from time to time” for the specific purpose of combined military
exercises with their Filipino counterparts. They stress that, in contrast, U.S.
troops are allowed under EDCA to perform activities beyond combined military
exercises, such as those enumerated in Articles III(1) and IV(4) thereof.
Furthermore, there is some degree of permanence in the presence of U.S. troops in
the country, since the effectivity of EDCA is continuous until terminated. They
proceed to argue that while troops have a “rotational” presence, this scheme in fact
fosters their permanent presence.
“United States personnel” means United States military and civilian
personnel temporarily in the territory of the Philippinesin connection with
activities approved by the Philippines, as those terms are defined in
the VFA.252
“United States forces” means the entity comprising United States
personnel and all property, equipment, and materiel of the United
States Armed Forces present in the territory of the Philippines.253
“United States contractors” means companies and firms,
and their employees, under contract or subcontractto or on behalf of
the United States Department of Defense. United States contractors
are not included as part of the definition of United States personnel in
this Agreement, including within the context of the VFA.254
United States forces may contract for any materiel, supplies,
equipment, and services (including construction) to be furnished or
undertaken in the territory of the Philippines without restriction as to
choice of contractor, supplier, or person who provides such materiel,
supplies, equipment, or services. Such contracts shall be solicited,
awarded, and administered in accordance with the laws and regulations of
the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the
agreement does not deal with the entry into the country of U.S. personnel
and contractors per se.
_______________

a. Admission of U.S. mili- 252 EDCA, Art. II(1).

tary and civilian per- 253 Id., Art. II(2).
sonnel into Philippine 254 Id., Art. II(3).
territory is already al- 255 Id., Art. VIII(1).
lowed under the VFA.

We shall first deal with the recognition under EDCA of the presence in the 386
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. 386 SUPREME COURT REPORTS ANNOTATED
civilian Saguisag vs. Ochoa, Jr.
_______________
While Articles I(1)(b)256 and II(4)257 speak of “the right to access and use” the
251 Memorandum of Saguisag, et al., pp. 22-23, 38-49, Rollo (G.R. No. 212426, Agreed Locations, their wordings indicate the presumption that these groups have
Vol. II), pp. 992-993, 1008-1019; Memorandum of Bayan, et al., pp. 35- already been allowed entry into Philippine territory, for which, unlike the VFA,
41, Rollo (G.R. No. 212444), pp. 599-605. EDCA has no specific provision. Instead, Article II of the latter simply alludes to
the VFA in describing U.S. personnel, a term defined under Article I of the treaty
as follows:
385
VOL. 779, JANUARY 12, 2016 385 As used in this Agreement, “United States personnel” means United
States military and civilian personnel temporarily in the Philippines in
Saguisag vs. Ochoa, Jr. connection with activities approved by the Philippine Government.
Within this definition:
personnel; and (3) U.S. contractors. The agreement refers to them as follows:
 1. The term “military personnel” refers to military members of
the United States Army, Navy, Marine Corps, Air Force, and Coast
Guard.
2. The term “civilian personnel” refers to individuals who
are neither nationals of nor ordinarily resident in the
Philippines and who are employed by the United States armed
forces or
_______________
256 According to this provision: 1. This Agreement deepens defense
cooperation between the Parties and maintains and develops their individual and
collective capacities, in furtherance of Article II of the MDT, which states that ‘the
Parties separately and jointly by self-help and mutual aid will maintain and
develop their individual and collective capacity to resist armed attack,’ and within
the context of the VFA. This includes: x x x x (b) Authorizing access to Agreed
Locations in the territory of the Philippines by United States forces on a
rotational basis, as mutually determined by the Parties.
257 According to this provision: “Agreed Locations” means facilities and
areasthat are provided by the Government of the Philippines through the AFP
and that United States forces, United States contractors, and others as
mutually agreed, shall have the right to access and use pursuant to this
agreement. Such Agreed Locations may be listed in an annex to be appended to
this Agreement, and may be further described in implementing arrangements.
387
VOL. 779, JANUARY 12, 2016 387
Saguisag vs. Ochoa, Jr.
who are accompanying the United States armed forces, such as
employees of the American Red Cross and the United Services
Organization.258
Article II of EDCA must then be read with Article III of the VFA, which
provides for the entry accommodations to be accorded to U.S. military and civilian
personnel:
1. The Government of the Philippines shall
facilitatethe admission of United States personnel and their
departure from the Philippines in connection with activities covered by this
agreement.
2. United States military personnel shall be exempt from
passport and visa regulations upon entering and departing the
Philippines.
3. The following documents only, which shall be required in respect of
United States military personnel who enter the Philippines; x x x x.
4. United States civilian personnel shall be exempt from visa
requirements but shall present, upon demand, valid passports upon
entry and departure of the Philippines. (Emphases supplied)
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 Philippines, through Article III, even guarantees that it shall
facilitate the admission of U.S. personnel into the country and grant exemptions
from passport and visa regulations. The VFA does not even limit their temporary
presence to specific locations.
Based on the above provisions, the admission and presence
of U.S. military and civilian personnel in Philippine territory are already
allowed under the VFA, the
_______________
258 VFA I, Art. I.
388
388 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
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.
b. EDCA does not provide t
he legal basis for ad-
mission of U.S. contrac-
tors into Philippine
territory; their entry
must be sourced from
extraneous Philippine
statutes and regula-
tions for the admission of
alien employees or
business persons.
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 before they are allowed to
enter the country.
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.
Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the
389
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Saguisag vs. Ochoa, Jr.
country.259 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.”260 Unlike U.S. personnel
who are accorded entry accommodations, U.S. contractors are subject to Philippine
immigration laws.261 The latter must comply with our visa and passport
regulations262 and prove that they are not subject to exclusion under any provision
of Philippine immigration laws.263The President may also deny
_______________
259 See: Djumantan v. Domingo, 310 Phil. 848; 240 SCRA 746 (1995).
260 Id., at p. 854; p. 752.
261 Commonwealth Act No. 613 (The Philippine Immigration Act of 1940, as
amended).
262 Id., Secs. 10 & 11.
263 Id., Secs. 29 & 30. Under Section 29, the following classes of aliens shall
be excluded from entry into the Philippines: (1) Idiots or insane persons and
persons who have been insane; (2) Persons afflicted with a loathsome or dangerous
contagious disease, or epilepsy; (3) Persons who have been convicted of a crime
involving moral turpitude; (4) Prostitutes, or procurers, or persons coming for any
immoral purposes; (5) Persons likely to become, public charge; (6) Paupers,
vagrants, and beggars; (7) Persons who practice polygamy or who believe in or
advocate the practice of polygamy; (8) Persons who believe in or
advocate the overthrow by force and violence of the Government of the
Philippines, or of constituted lawful authority, or who disbelieve in or are opposed
to organized government, or who advocate the assault or assassination of
public officials because of their office, or who advocate or teach principles,
theories, or ideas contrary to the Constitution of the Philippines or
advocate or teach the unlawful destruction of property, or who are members of or
affiliated with any organization entertaining or teaching such doctrines; (9)
Persons over fifteen years of age, physically capable of reading, who cannot read
printed matter in ordinary use in any language selected by the alien, but this
provision shall not apply to the grandfather, grandmother, father, mother, wife,
husband or child of a Philippine citizen or of an alien lawfully resident in the
Philippines; (10) Persons who are members of a family accompanying an excluded
alien, unless in the
390
390 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
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.264
In the same vein, the President may exercise the plenary power to expel or
deport U.S. contractors265 as may be necessi-
_______________
opinion of the Commissioner of Immigration no hardship would result from
their admission; (11) Persons accompanying an excluded person who is helpless
from mental or physical disability or infancy, when the protection or guardianship
of such accompanying person or persons is required by the excluded person, as
shall be determined by the Commissioner of Immigration; (12) Children under
fifteen years of age, unaccompanied by or not coming to a parent, except that any
such children may be admitted in the discretion of the Commissioner of
Immigration, if otherwise admissible; (13) Stowaways, except that any stowaway
may be admitted in the discretion of the Commissioner of Immigration, if
otherwise admissible; (14) Persons coming to perform unskilled manual labor in
pursuance of a promise or offer of employment, express or implied, but this
provision shall not apply to persons bearing passport visas authorized by Section
Twenty of this Act; (15) Persons who have been excluded or deported from
the Philippines, but this provision may be waived in the discretion of the
Commissioner of Immigration: Provided, however, That the Commissioner of
Immigration shall not exercise his discretion in favor of aliens excluded or deported
on the ground of conviction for any crime involving moral turpitude or for any
crime penalized under Sections [45] and [46] of this Act or on the ground of having
engaged in hoarding, black-marketing or profiteering unless such aliens have
previously resided in the Philippines immediately before his exclusion or
deportation for a period of ten years or more or are married to native Filipino
women; (16) Persons who have been removed from the Philippines at the expense
of the Government of the Philippines, as indigent aliens, under the provisions of
Section [43] of this Act, and who have not obtained the consent of the Board of
Commissioners to apply for readmission; and (17) Persons not properly
documented for admission as may be required under the provisions of this Act.
(Emphasis supplied)
264 Supra note 259.
265 Administrative Code of 1987, Book III (Office of the President), Title I
(Powers of the President), Secs. 8 & 11, in relation to
391
VOL. 779, JANUARY 12, 2016 391
 Saguisag vs. Ochoa, Jr. c. Authorized activities of
U.S. military and civil-
tated by national security, public safety, public health, public morals, and ian personnel within
national interest.266 They may also be deported if they are found to be illegal or Philippine territory are
undesirable aliens pursuant to the Philippine Immigration Act267 and the Data in furtherance of the
Privacy Act.268 MDT and the VFA.
_______________
We begin our analysis by quoting the relevant sections of the MDT and the
VFA that pertain to the activities in which U.S. military and civilian personnel
Commonwealth Act No. 613 (The Philippine Immigration Act of 1940), Sec. 52
may engage:
and Act. No. 2711 (Revised Administrative Code of 1917), Sec. 69. See: Djumantan
_______________
v. Domingo, id.; Teo Tung v. Machlan, 60 Phil. 916 (1934).
266 See: Commonwealth Act No. 613 (The Philippine Immigration Act of 1940,
as amended), Secs. 6, 12, 28 & 29; Djumantan v. Domingo, id.; Salazar v. ner whatsoever lends assistance, financial or otherwise, to the dissemination
Achacoso, 262 Phil. 160; 183 SCRA 145 (1990); Ledesma, Ronaldo P., Deportation of such doctrines; (9) Any alien who commits any of the acts described in Sections
Proceedings: Practice, Precedents, and Procedures, p. 96 (2013). [45] and [46] of this Act, independent of criminal action which may be brought
267 Id., Sec. 37. The provision enumerates as follows: (1) Any alien who against him: x x x; (10) Any alien who, at any time within five years after entry,
enters the Philippines x x x by means of false and misleading shall have been convicted of violating the provisions of the Philippine
statements or without inspection and admission by the immigration Commonwealth Act [653], otherwise known as the Philippine Alien
authorities x x x; (2) (Any alien who enters the Philippines x x x, who was not Registration Act of 1941, or who, at any time after entry, shall have been
lawfully admissible at the time of entry; (3) Any alien who, x x x, is convicted convicted more than once of violating the provisions of the same Act; (11) Any alien
in the Philippines and sentenced for a term of one year or more for a crime who engages in profiteering, hoarding, or blackmarketing, independent of
involving moral turpitude committed within five years after his entry to the any criminal action which may be brought against him; (12) Any alien who
Philippines, or who, at any time after such entry, is so convicted and sentenced is convicted of any offense penalized under Commonwealth Act [473],
more than once; (4) Any alien who is convicted and sentenced for a violation of the otherwise known as the Revised Naturalization Laws of the Philippines, or
law governing prohibited drugs; (5) Any alien who practices prostitution or is an any law relating to acquisition of Philippine citizenship; (13) Any alien who
inmate of a house of prostitution or is connected with the management of a house defrauds his creditor by absconding or alienating properties to prevent them from,
of prostitution, or is a procurer; (6) Any alien who becomes a public charge within being attached or executed. (Emphasis supplied)
five years after entry from causes not affirmatively shown to have arisen 268 Republic Act No. 10173, Sec. 34. According to the provision, “[i]f the
subsequent to entry; (7) Any alien who remains in the Philippines in violation of offender is an alien, he or she shall, in addition to the penalties herein
any limitation or condition under which he was admitted as a prescribed, be deported without further proceedings after serving the
nonimmigrant; (8) Any alien who believes in, advises, advocates or teaches penalties prescribed.”
the overthrow by force and violence of the Government of the
Philippines, or of constituted law and authority, or who disbelieves in or is
opposed to organized government or who advises, advocates, or teaches the assault 393
or assassination of public officials because of their office, or who advises, advocates, VOL. 779, JANUARY 12, 2016 393
or teaches the unlawful destruction of property, or who is a member of or affiliated Saguisag vs. Ochoa, Jr.
with any organization entertaining, advocating or teaching such doctrines, or who
in any man- Mutual Defense Treaty
Article II
392 In order more effectively to achieve the objective of this Treaty, the
392 SUPREME COURT REPORTS ANNOTATED Parties separately and jointly by self-help and mutual
Saguisag vs. Ochoa, Jr. aid will maintain and develop their individual and collective
capacity to resist armed attack.
In contrast, Article III(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] Article III
x x x outside of the Philippines.”
 The Parties, through their Foreign Ministers or their deputies,
will consult together from time to time regarding the implementation
of this Treaty and whenever in the opinion of either of them the territorial
integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
Visiting Forces Agreement
Preamble
xxx
Reaffirming their obligations under the Mutual Defense
Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed
forces may visit the Republic of the Philippines;
Considering that cooperation between the United States and the
Republic of the Philippines promotes their common security interests.
xxx
Article I – Definitions
As used in this Agreement, “United States personnel” means United
States military and civilian personnel temporarily in the Philippines in
connection with activi-
394
394 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
ties approved by the Philippine Government. Within this
definition: x x x.
Article II – Respect for Law
It is the duty of United States personnel to respect the laws of
the Republic of the Philippines and to abstain from any activity
inconsistent with the spirit of this agreement, and, in particular,
from any political activity in the Philippines. The Government of the
United States shall take all measures within its authority to ensure that
this is done.
Article VII – Importation and Exportation
1. United States Government equipment, materials, supplies,
and other property imported into or acquired in the Philippines by
or on behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all
Philippine duties, taxes and other similar charges. Title to such property
shall remain with the United States, which may remove such property from
the Philippines at any time, free from export duties, taxes, and other
similar charges. x x x.
Article VIII – Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces
may enter the Philippines upon approval of the Government of the
Philippines in accordance with procedures stipulated in implementing
arrangements.
2. Vessels operated by or for the United States armed forces
may enter the Philippines upon approval of the Government of the
Philippines. The movement of vessels shall be in accordance with
international custom and practice governing such vessels,
and such agreed implementing arrangements as necessary. x x x
(Emphases supplied)
395
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Saguisag vs. Ochoa, Jr.
Manifest in these provisions is the abundance of references to the creation of
further “implementing arrangements” including the identification of “activities [to
be] approved by the Philippine Government.” To determine the parameters of
these implementing arrangements and activities, we referred to the content,
purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both
countries shall engage in joint activities, so that they can maintain and develop
their defense capabilities. The wording itself evidently invites a reasonable
construction that the joint activities shall involve joint military trainings,
maneuvers, and exercises. Both the interpretation269 and the subsequent
practice270 of the parties show that the MDT inde-
_______________
269 See: Secretary of Justice v. Lantion, supra note 17. According to the Court:
“An equally compelling factor to consider is the understanding of the
parties themselves to the RP-US Extradition Treaty x x x. The rule is recognized
that while courts have the power to interpret treaties, the meaning given them
by the departments of government particularly charged with their
negotiation and enforcement is accorded great weight. x x x This
interpretation by the two governments cannot be given scant significance. It will
be presumptuous for the Court to assume that both governments did not
understand the terms of the treaty they concluded.” (Emphasis supplied)
270 See Status of Forces Agreement of 1993, supra note 70. The International
Law Commission explains that the subsequent practice of states in the application
of the treaty may be taken into account in ascertaining the parties’ agreement in
the interpretation of that treaty. This is “well-established in the jurisprudence of
international tribunals” even before the Vienna Convention on the Law of Treaties
was concluded. See International Law Commission, Draft Articles on the Law of
Treaties with Commentaries, 1966 (II) Y.B.I.L.C. 187 at pp. 221-222
(citing Russian Claim for Indemnities [Russia/Turkey], XI R.I.A.A. 421, 433 [1912]
[Nov. 11]; Competence of the ILO to Regulate Agricultural Labour, 1922 P.C.I.J.
[ser. B] No. 2, 39 [Aug. 12]; Interpretation of Article 3, paragraph 2, of the Treaty
of Lausanne,1925 P.C.I.J. [ser. B] No. 12, 24 [Nov. 21]; Brazilian
396
396 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
pendently allows joint military exercises in the country. Lim v. Executive
Secretary271 and Nicolas v. Romulo272 recognized that Balikatan exercises, which
are activities that seek to enhance and develop the strategic and technological
capabilities of the parties to resist an armed attack, “fall squarely under the
provisions of the RP-US MDT.”273 In Lim, the Court especially noted that the
Philippines and the U.S. continued to conduct joint military exercises even after
the expiration of the MBA and even before the conclusion of the VFA. 274 These
activities presumably related to the Status of Forces Agreement, in which the
parties agreed on the status to be accorded to U.S. military and civilian personnel
while conducting activities in the Philippines in relation to the MDT. 275
Further, it can be logically inferred from Article V of the MDT that
these joint activities may be conducted on Philippine or on U.S. soil. The article
expressly provides that the
_______________
Loans, 1929 P.C.I.J. [ser. A] No. 21, 119 [Jul. 12]; and Corfu Channel [U.K. v.
Albania], 1949 I.C.J. 4, 25 [Apr. 9]).
271 Lim v. Executive Secretary, supra note 69 at pp. 571-572; p. 752.
272 Nicolas v. Romulo, supra note 39 at p. 284; p. 461.
273 Id.
274 Lim v. Executive Secretary, supra note 69 at p. 575; p. 755; Joint Report of
the Committee on Foreign Relations and the Committee on National Defense and
Security reproduced in Senate of the Philippines, supra note 69 at p. 206.
275 Status of Forces Agreement of 1993, supra note 70. According to Note No.
93-2301 dated 11 June 1993 of the DFA to the U.S. Embassy, “The [DFA] x x x has
the honor to reaffirm its position that all U.S. military and civilian personnel
present in the Philippines participating in activities undertaken in relation to the
Mutual Defense Treaty will be accorded the same status as the U.S. Embassy’s
technical and administrative personnel who are qualified to enter the Philippines
under existing Philippine laws. The Department further proposes that the
procedures as well as the arrangements for these MDT-related activities are to be
mutually agreed upon by the MDB, subject to the guidelines of the Council of
Ministers.”
397
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Saguisag vs. Ochoa, Jr.
term armed attack includes “an armed attack on the metropolitan
territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in
the Pacific.” Surely, in maintaining and developing our defense capabilities, an
assessment or training will need to be performed, separately and jointly by self-
help and mutual aid, in the territories of the contracting parties. It is reasonable
to conclude that the assessment of defense capabilities would entail understanding
the terrain, wind flow patterns, and other environmental factors unique to the
Philippines.
It would also be reasonable to conclude that a simulation of how to respond to
attacks in vulnerable areas would be part of the training of the parties to maintain
and develop their capacity to resist an actual armed attack and to test and validate
the defense plan of the Philippines. It is likewise reasonable to imagine that part
of the training would involve an analysis of the effect of the weapons that may be
used and how to be prepared for the eventuality. This Court recognizes that all of
this may require training in the area where an armed attack might be directed at
the Philippine territory.
The provisions of the MDT must then be read in conjunction with those of the
VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian
personnel in the Philippines is “in connection with activities approved by the
Philippine Government.” While the treaty does not expressly enumerate or detail
the nature of activities of U.S. troops in the country, its Preamble makes explicit
references to the reaffirmation of the obligations of both countries under the MDT.
These obligations include the strengthening of international and regional security
in the Pacific area and the promotion of common security interests.
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 am-
398
398 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
biguous in order to afford the parties flexibility to adjust the details of the
purpose of the visit of U.S. personnel.276 In ruling that the Terms of Reference for
the Balikatan Exercises in 2002 fell within the context of the treaty, this Court
explained:
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word “activities” arose from
accident. In our view, it was deliberately made that way to give both
parties a certain leeway in negotiation. In this manner, visiting US
forces may sojourn in Philippine territory for purposes other than
 military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nation’s marine
resources, sea search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current
Balikatan exercises. It is only logical to assume that “Balikatan 02-
1,” a “mutual anti-terrorism advising, assisting and training
exercise,” falls under the umbrella of sanctioned or allowable
activities in the context of the agreement. Both the history and intent
of the Mutual Defense Treaty and the VFA support the conclusion that
combat-related activities — as opposed to combat itself — such as the one
subject of the instant petition, are indeed authorized. (Emphases supplied)
The joint report of the Senate committees on foreign relations and on national
defense and security further explains
_______________
Siazon clarified that it is not the VFA by itself that determines
what activities will be conducted between the armed forces of the U.S.
and the Philippines. The VFA regulates and provides the legal
framework for the presence, conduct and legal status of U.S.
personnel while they are in the country for visits, joint exercises and other
related activities. (Emphases supplied)
_______________
277 Joint Report of the Committee on Foreign Relations and the Committee
on National Defense and Security reproduced in Senate of the Philippines, id., at
pp. 205-206, 231.
400
400 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.

276 Lim v. Executive Secretary, supra note 69. See also Joint Report of the What can be gleaned from the provisions of the VFA, the joint report
Committee on Foreign Relations and the Committee on National Defense and of the Senate committees on foreign relations and on national defense
Security reproduced in Senate of the Philippines, supra note 69 at pp. 230-231. and security, and the ruling of this Court in Lim is that the “activities”
referred to in the treaty are meant to be specified
and identified in further agreements. EDCA is one such agreement.
399 EDCA seeks to be an instrument that enumerates the Philippine approved
activities of U.S. personnel referred to in the VFA. EDCA allows U.S. military and
VOL. 779, JANUARY 12, 2016 399
civilian personnel to perform “activities approved by the Philippines, as those
Saguisag vs. Ochoa, Jr. terms are defined in the VFA”278 and clarifies that these activities include those
conducted within the Agreed Locations:
the wide range and variety of activities contemplated in the VFA, and how
these activities shall be identified:277 1. Security cooperation exercises; joint and combined training activities;
humanitarian assistance and disaster relief activities; and such other
These joint exercises envisioned in the VFA are not limited to activities as may be agreed upon by the Parties.279
combat-related activities; they have a wide range and variety. They 2. Training; transit; support and related activities; refueling of aircraft;
include exercises that will reinforce the AFP’s ability to acquire new bunkering of vessels; temporary maintenance of vehicles, vessels, and
techniques of patrol and surveillance to protect the country’s maritime aircraft; temporary accommodation of personnel; communications;
resources; sea-search and rescue operations to assist ships in distress; prepositioning of equipment, supplies, and materiel; deployment of forces
and disaster-relief operations to aid the civilian victims of natural and materiel; and such other activities as the Parties may agree.280
calamities, such as earthquakes, typhoons and tidal waves. 3. Exercise of operational control over the Agreed Locations for
xxxx construction activities and other types of activity, including alterations and
Joint activities under the VFA will include combat maneuvers; training improvements thereof.281
in aircraft maintenance and equipment repair; civic-action projects; and _______________
consultations and meetings of the Philippine-U.S. Mutual Defense
Board. It is at the level of the Mutual Defense Board — which is 278 EDCA, Art. II(1).
headed jointly by the Chief of Staff of the AFP and the Commander in Chief 279 Id., Art. I(3).
of the U.S. Pacific Command — that the VFA exercises are planned. 280 Id., Art. III(1).
Final approval of any activityinvolving U.S. forces is, 281 Id., Art. III(4) & (6).
however, invariably given by the Philippine Government.
xxxx
401
 VOL. 779, JANUARY 12, 2016 401
Saguisag vs. Ochoa, Jr.
4. Exercise of all rights and authorities within the Agreed Locations
that are necessary for their operational control or defense, including the
adoption of appropriate measures to protect U.S. forces and contractors. 282
5. Use of water, electricity, and other public utilities.283
6. Operation of their own telecommunication systems, including the
utilization of such means and services as are required to ensure the full
ability to operate telecommunication systems, as well as the use of the
necessary radio spectrum allocated for this purpose.284
According to Article I of EDCA, one of the purposes of these activities is to
maintain and develop, jointly and by mutual aid, the individual and collective
capacities of both countries to resist an armed attack. It further states that the
activities are in furtherance of the MDT and within the context of the VFA.
We note that these planned activities are very similar to those under the Terms
of Reference285 mentioned in Lim. Both EDCA and the Terms of Reference
authorize the U.S. to perform the following: (a) participate in training exercises;
(b) retain command over their forces; (c) establish temporary structures in the
country; (d) share in the use of their respec-
_______________
282 Id., Art. VI(3).
283 Id., Art. VII(1).
284 Id., Art. VII(2).
285 According to the Agreed Minutes of the Discussion between the former
Philippine Vice President/Secretary of Foreign Affairs Teofisto T. Guingona, Jr.
and U.S. Assistant Secretary of State for East Asian and Pacific Affairs James
Kelly, both countries approved the Terms of Agreement of the Balikatan exercises.
See: Rollo (G.R. No. 151445), pp. 99-100.
402
402 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
tive resources, equipment and other assets; and (e) exercise their right to self-
defense. We quote the relevant portion of the Terms and Conditions as follows:286
I. POLICY LEVEL
xxxx
No permanent US basing and support facilities shall be
established. Temporary structures such as those for troop billeting,
classroom instruction and messing may be set up for use by RP and
US Forces during the Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will
US Forces operate independently during field training exercises
(FTX). AFP and US Unit Commanders will retain command over
their respective forces under the overall authority of the Exercise
Co-Directors. RP and US participants shall comply with operational
instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not
more than six months, with the projected participation of 660 US personnel
and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-
Directors to wind up and terminate the Exercise and other activities within
the six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting
and training Exercise relative to Philippine efforts against the ASG, and
will be conducted on the Island of Basilan. Further advising, assisting and
training exercises shall be conducted in Malagutay and the Zamboanga
area. Related activities in Cebu will be for support of the Exercise.
_______________
286 Lim v. Executive Secretary, supra note 69 at pp. 565-566; pp. 746-747.
403
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Saguisag vs. Ochoa, Jr.
x x x x.
US exercise participants shall not engage in combat, without
prejudice to their right of self-defense.
These terms of Reference are for purposes of this Exercise only and do
not create additional legal obligations between the US Government and the
Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military
assisting, advising and training of RP and US Forces with the primary
objective of enhancing the operational capabilities of both forces to combat
terrorism.
b. At no time shall US Forces operate independently within RP
territory.
c. Flight plans of all aircraft involved in the exercise will comply with
the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources,
equipment and other assets. They will use their respective logistics
channels. x x x. (Emphases supplied)
 After a thorough examination of the content, purpose, and framework of the
MDT and the VFA, we find that EDCA has remained within the parameters set in
these two treaties. Just like the Terms of Reference mentioned in Lim, mere
adjustments in detail to implement the MDT and the VFA can be in the form of
executive agreements.
404
404 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Petitioners assert287 that the duration of the activities mentioned in EDCA is
no longer consistent with the temporary nature of the visits as contemplated in the
VFA. They point out that Article XII(4) of EDCA has an initial term of 10 years, a
term automatically renewed unless the Philippines or the U.S. terminates the
agreement. According to petitioners, such length of time already has a badge of
permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise
argues in her Concurring and Dissenting Opinion that the VFA contemplated mere
temporary visits from U.S. forces, whereas EDCA allows an unlimited period for
U.S. forces to stay in the Philippines.288
However, the provisions of EDCA directly contradict this argument by limiting
itself to 10 years of effectivity. Although this term is automatically renewed, the
process for terminating the agreement is unilateral and the right to do so
automatically accrues at the end of the 10-year period. Clearly, this method does
not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been
by chance that the VFA does not include a maximum time limit with respect to the
presence of U.S. personnel in the country. We construe this lack of specificity as a
deliberate effort on the part of the Philippine and the U.S. governments to leave
out this aspect and reserve it for the “adjustment in detail” stage of the
implementation of the treaty. We interpret the subsequent, unconditional
concurrence of the Senate in the entire text of the VFA as an implicit grant to the
President of a margin of appreciation in determining the duration of the
“temporary” presence of U.S. personnel in the country.
_______________
287 Memorandum of Saguisag, et al., pp. 43-46, Rollo (G.R. No. 212426, Vol.
II), pp. 1013-1016.
288 Concurring and Dissenting Opinion of Justice Teresita J. Leonardo-De
Castro, p. 526.
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Saguisag vs. Ochoa, Jr.
Justice Brion’s dissent argues that the presence of U.S. forces under EDCA is
“more permanent” in nature.289 However, this argument has not taken root by
virtue of a simple glance at its provisions on the effectivity period. EDCA does not
grant permanent bases, but rather temporary rotational access to facilities for
efficiency. As Professor Aileen S.P. Baviera notes:
The new EDCA would grant American troops, ships and planes
rotational access to facilities of the Armed Forces of the Philippines — but
not permanent bases which are prohibited under the Philippine
Constitution — with the result of reducing response time should an
external threat from a common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of states
as shown in other defense cooperation agreements. For example, Article XIV(1) of
the U.S.-Romania defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall
enter into force in accordance with the internal laws of each Party x x x.
(emphasis supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of
time. It may be terminated by written notification by either Party and in
that event it terminates 2 years after the receipt of the notification.
(emphasis supplied)
_______________
289 Dissenting Opinion of Justice Brion, pp. 607-608.
290 Baviera, Aileen S.P., Implications of the US-Philippines Enhanced
Defense Cooperation Agreement, Asia Pacific Bulletin No. 292, 9 May 2014.
406
406 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Section VIII of US-Denmark Mutual Support Agreementsimilarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONS I-VIII,
and Annexes A and B, shall become effective on the date of the last
signature affixed below and shall remain in force until terminated by
the Parties, provided that it may be terminated by either Party upon 180
days written notice of its intention to do so to the other Party. (emphasis
supplied)
On the other hand, Article XXI(3) of the US-Australia Force Posture
Agreement provides a longer initial term:

3. This Agreement shall have an initial term of 25 years and
thereafter shall continue in force, but may be terminated by either
Party at any time upon one year’s written notice to the other Party through
diplomatic channels. (emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with
a term less than half of that is provided in the latter agreement. This means that
EDCA merely follows the practice of other states in not specifying a non-extendible
maximum term. This practice, however, does not automatically grant a badge of
permanency to its terms. Article XII(4) of EDCA provides very clearly, in fact, that
its effectivity is for an initial term of 10 years, which is far shorter than the terms
of effectivity between the U.S. and other states. It is simply illogical to conclude
that the initial, extendible term of 10 years somehow gives EDCA provisions a
permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of
the President who, as Commander-in-Chief of our armed forces, is the principal
strategist of the nation and, as such, duty-bound to defend our national sover-
407
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Saguisag vs. Ochoa, Jr.
eignty and territorial integrity;291 who, as chief architect of our foreign
relations, is the head policymaker tasked to assess, ensure, and protect our
national security and interests;292 who holds the most comprehensive and most
confidential information about foreign countries293 that may affect how we conduct
our external affairs; and who has unrestricted access to highly classified military
intelligence data294 that may threaten the life of the nation. Thus, if after a
geopolitical prognosis of situations affecting the country, a belief is engendered
that a much longer period of military training is needed, the President must be
given ample discretion to adopt necessary measures including the flexibility to set
an extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we
acknowledge that the President may not always be able to candidly and openly
discuss the complete situation being faced by the nation. The Chief Executive’s
hands must not be unduly tied, especially if the situation calls for crafting
programs and setting timelines for approved activities. These activities may be
necessary for maintaining and developing our capacity to resist an armed attack,
ensuring our national sovereignty and territorial integrity, and securing our
national interests. If the Senate decides that the President is in the best position
to define in operational terms the meaning of temporary in relation to the visits,
considered individually or in their totality, the Court must respect that policy
decision. If the Senate feels that there is no need to set a time limit to these visits,
neither should we.
_______________
291 See Constitution, Art. VII, Sec. 18, in relation to Art. II, Sec. 3.
292 See Administrative Code of 1987, Book IV (Executive Branch), Title I
(Foreign Affairs), Sec. 3(1), in relation to Constitution, Art. VII, Sec. 1 and Art. II,
Sec. 3; Akbayan Citizens Action Party v. Aquino, supra note 15; Pimentel, Jr. v.
Office of the Executive Secretary, supra note 15; Bayan (Bagong Alyansang
Makabayan) v. Zamora, supra note 23.
293 Vinuya v. Romulo, supra note 17.
294 Id.
408
408 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Evidently, the fact that the VFA does not provide specificity in regard to the
extent of the “temporary” nature of the visits of U.S. personnel does not suggest
that the duration to which the President may agree is unlimited. Instead, the
boundaries of the meaning of the term temporary in Article I of the treaty must be
measured depending on the purpose of each visit or activity.295 That purpose must
be analyzed on a case-by-case basis depending on the factual circumstances
surrounding the conclusion of the implementing agreement. While the validity of
the President’s actions will be judged under less stringent standards, the power of
this Court to determine whether there was grave abuse of discretion remains
unimpaired.
d. Authorized activities per-
formed by U.S. contractors
within Philippine territory
— who were legitimately
permitted to enter the coun-
try independent of EDCA —
are subject to relevant Phil-
ippine statutes and regula-
tions and must be consistent
with the MDT and the VFA.
Petitioners also raise296 concerns about the U.S. government’s purported
practice of hiring private security contractors in other countries. They claim that
these contractors —
_______________
295 See generally Joint Report of the Committee on Foreign Relations and the
Committee on National Defense and Security reproduced in Senate of the
Philippines, supra note 69 at p. 206. According to the report: “The Mutual Defense
Board programs an average of 10 to 12 exercises annually. Participating U.S.
personnel, numbering from 10 to more than 1,000, stay in Philippine territory from
four days to four weeks, depending on the nature of the exercise.”
296 Memorandum of Bayan, pp. 47-51, Rollo (G.R. No. 212444), pp. 611-615.

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Saguisag vs. Ochoa, Jr.
one of which has already been operating in Mindanao since 2004 — have been
implicated in incidents or scandals in other parts of the globe involving rendition,
torture and other human rights violations. They also assert that these contractors
employ paramilitary forces in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform
only the following activities:
1. Training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of forces
and materiel; and such other activities as the Parties may agree. 297
2. Prepositioning and storage of defense equipment, supplies, and
materiel, including delivery, management, inspection, use, maintenance,
and removal of such equipment, supplies and materiel.298
3. Carrying out of matters in accordance with, and to the extent
permissible under, U.S. laws, regulations, and policies.299
EDCA requires that all activities within Philippine territory be in accordance
with Philippine law. This means that certain privileges denied to aliens are
likewise denied to foreign military contractors. Relevantly, providing
security300 and carrying, owning, and possessing firearms301 are illegal for foreign
civilians.
_______________
297 EDCA, Art. III(1).
298 Id., Art. IV(4).
299 Id., Art. IV(5).
300 Commonwealth Act No. 541.
301 Republic Act No. 10951.
410
410 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
The laws in place already address issues regarding the regulation of
contractors. In the 2015 Foreign Investment Negative list,302 the Executive
Department has already identified corporations that have equity restrictions in
Philippine jurisdiction. Of note is No. 5 on the list — private security agencies that
cannot have any foreign equity by virtue of Section 4 of Republic Act No.
5487;303 and No. 15, which regulates contracts for the construction of defense-
related structures based on Commonwealth Act No. 541.
Hence, any other entity brought into the Philippines by virtue of EDCA must
subscribe to corporate and civil requirements imposed by the law, depending on
the entity’s corporate structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the regulation of the
activities of U.S. contractors has been clear even to some of the present members
of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was accused
of spilling fuel in the waters off Manila Bay.304 The Senate Committee on Foreign
Relations and the Senate Committee on Environment and Natural Resources
chairperson claimed environmental and procedural violations by the
contractor.305 The U.S. Navy investigated the contractor
_______________
302 Executive Order No. 184 (2015).
303 Republic Act No. 5487 — The Private Security Agency Law, as amended
by P.D. No. 11.
304 Glenn Defense: SBMA suspension doesn’t cover all our functions, Rappler,
available at <http://www.rappler.com/nation/16688-glenn-defense-sbma-
suspension-does-not-cover-all-functions> (last visited 3 December 2015).
305 Id.; Bordadora, Norman, US Navy contractor liable for Subic waste
dumping,Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/63765/us-navy-contractor-liable-for-subic-waste-
dumping> (last visited 3 December 2015); Santos, Matikas, US navy contractor
dumped millions of liters of wastes in Subic,Philippine Daily Inquirer, available at
<http://globalnation.inquirer.
411
VOL. 779, JANUARY 12, 2016 411
Saguisag vs. Ochoa, Jr.
and promised stricter guidelines to be imposed upon its contractors. 306 The
statement attributed to Commander Ron Steiner of the public affairs office of the
U.S. Navy’s 7th Fleet — that U.S. Navy contractors are bound by Philippine laws
—is of particular relevance. The statement acknowledges not just the presence of
the contractors, but also the U.S. position that these contractors are bound by the
local laws of their host state. This stance was echoed by other U.S. Navy
representatives.307
This incident simply shows that the Senate was well aware of the presence of U.S.
contractors for the purpose of fulfilling the terms of the VFA. That they are bound
by Philippine law is clear to all, even to the U.S.
As applied to EDCA, 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.
While we recognize the concerns of petitioners, they do not give the Court
enough justification to strike down EDCA. In Lim v. Executive Secretary, we have
already explained that we cannot take judicial notice of claims aired in news
reports, “not because of any issue as to their truth, accuracy, or impartiality, but
for the simple reason that facts must be established in accordance with the rules
of evidence.”308 What is
_______________
net/63649/us-navy-contractor-dumped-millions-of-liters-of-wastes-in-subic>
(last visited 3 December 2015).
306 Cabreza, Vincent, US Embassy says dumping of untreated waste in Subic
not condoned, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/60255/us-embassy-says-dumping-of-untreated-
waste-in-subic-not-condoned> (last visited 3 December 2015).
307 Gonzaga, Robert, Contractor could face sanctions from US navy for
violations, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/56622/contractor-could-face-sanctions-from-us-
navy-for-violations> (last visited 3 December 2015).
308 Lim v. Executive Secretary, supra note 69 at p. 580; pp. 759-760.
412
412 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
more, we cannot move one step ahead and speculate that the alleged illegal
activities of these contractors in other countries would take place in the Philippines
with certainty. As can be seen from the above discussion, making sure that U.S.
contractors comply with Philippine laws is a function of law enforcement. EDCA
does not stand in the way of law enforcement.
Nevertheless, we emphasize that 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. They
may be refused entry or expelled from the country if they engage in illegal or
undesirable activities. There is nothing that prevents them from being detained in
the country or being subject to the jurisdiction of our courts. Our penal
laws,309 labor laws,310 and immigrations laws311 apply to them
_______________
309 See R.A. No. 10591 or the Comprehensive Firearms and Ammunition
Regulation Act. According to Section 4, Article II thereof: In order to qualify and
acquire a license to own and possess a firearm or firearms and
ammunition, the applicant must be a Filipino citizen, at least twenty-one (21)
years old and has gainful work, occupation or business or has filed an Income Tax
Return (ITR) for the preceding year as proof of income, profession, business or
occupation. In addition, the applicant shall submit the following certification
issued by appropriate authorities attesting the following: x x x x. On the other
hand, Section 5 states: “A juridical person maintaining its own security
force may be issued a regular license to own and possess firearms and
ammunition under the following conditions: (a) It must be Filipino-owned and
duly registered with the Securities and Exchange Commission (SEC); (b) It is
current, operational and a continuing concern; (c) It has completed and submitted
all its reportorial requirements to the SEC; and (d) It has paid all its income taxes
for the year, as duly certified by the Bureau of Internal Revenue. x x x x. Security
agencies and LGUs shall be included in this category of licensed holders but shall
be subject to additional requirements as may be required by the Chief of the PNP.”
Finally, Section 22 expresses: “A person
413
VOL. 779, JANUARY 12, 2016 413
Saguisag vs. Ochoa, Jr.
and therefore limit their activities here. Until and unless there is another law
or treaty that specifically deals with their entry and activities, their presence in
the country is subject to unqualified Philippine jurisdiction.
_______________
arriving in the Philippines who is legally in possession of any firearm
or ammunition in his/her country of origin and who has declared the
existence of the firearm upon embarkation and disembarkation but
whose firearm is not registered in the Philippines in accordance with this
Act shall deposit the same upon written receipt with the Collector of
Customs for delivery to the FEO of the PNP for safekeeping, or for the issuance
of a permit to transport if the person is a competitor in a sports shooting
competition. If the importation of the same is allowed and the party in
question desires to obtain a domestic firearm license, the same should be
undertaken in accordance with the provisions of this Act. If no license is
desired or leave to import is not granted, the firearm or ammunition in question
shall remain in the custody of the FEO of the PNP until otherwise disposed of in
accordance with law.” (Emphasis supplied)
310 Article 40 of the Labor Code, as amended, provides: “Employment permit
of nonresident aliens.—Any alien seeking admission to the Philippines for
employment purposes and any domestic or foreign employer who desires to
engage an alien for employment in the Philippines shall obtain an employment
permit from the Department of Labor. The employment permit may be issued
to a nonresident alien or to the applicant employer after a determination of the
nonavailability of a person in the Philippines who is competent, able and
willing at the time of application to perform the services for which the
alien is desired. For an enterprise registered in preferred areas of
investments, said employment permit may be issued upon recommendation
of the government agency charged with the supervision of said registered
enterprise.” (Emphasis supplied)
311 Supra notes 263 and 267.
414
414 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
 The context of use is “required by United States forces for activities under this
EDCA does not allow the presence Agreement.” Therefore, the return of an Agreed Location would be within the
of U.S.-owned or -controlled mili- parameters of an activity that the Mutual Defense Board (MDB) and the Security
tary facilities and bases in the Engagement Board (SEB) would authorize. Thus, possession by the U.S. prior to
Philippines its return of the Agreed Location would be based on the authority given to it by a
joint body co-chaired by the “AFP Chief of Staff and Commander, U.S. PACOM
Petitioners Saguisag, et al. claim that EDCA permits the establishment of U.S. with representatives from the Philippines’ Department of National Defense and
military bases through the “euphemistically” termed “Agreed Department of Foreign Affairs sitting as members.”313 The terms shall be
Locations.”312 Alluding to the definition of this term in Article II(4) of EDCA, they negotiated by both the Philippines and the U.S., or through their Designated
point out that these locations are actually military bases, as the definition refers Authorities. This provision, seen as a whole, contradicts petitioners’ interpretation
to facilities and areas to which U.S. military forces have access for a variety of of the return as a “badge of exclusivity.” In fact, it shows the cooperation and
purposes. Petitioners claim that there are several badges of exclusivity in the use partnership aspect of EDCA in full bloom.
of the Agreed Locations by U.S. forces. First, Article V(2) of EDCA alludes to a Second, the term “unimpeded access” must likewise be viewed from a
“return” of these areas once they are no longer needed by U.S. forces, indicating contextual perspective. Article IV(4) states that U.S. forces and U.S. contractors
that there would be some transfer of use. Second, Article IV(4) of EDCA talks shall have “unimpeded access to Agreed Locations for all matters relating to the
about American forces’ unimpeded access to the Agreed Locations for all matters prepositioning and storage of defense equipment, supplies, and materiel, including
relating to the prepositioning and storage of U.S. military equipment, supplies, delivery, management, inspection, use, maintenance, and removal of such
and materiel. Third, Article VII of EDCA authorizes U.S. forces to use public equipment, supplies and materiel.”
utilities and to operate their own telecommunications system. _______________

a. Preliminary point on
badges of exclusivity.
As a preliminary observation, petitioners have cherry-picked provisions of
EDCA by presenting so-called “badges of exclusivity,” despite the presence of
contrary provisions within the text of the agreement itself.
First, they clarify the word “return” in Article V(2) of EDCA. However, the use
of the word “return” is within the context of a lengthy provision. The provision as
a whole reads as follows:
_______________
312 Memorandum of Saguisag, et al., pp. 25-29, Rollo (G.R. No. 212426, Vol.
II), pp. 995-999.
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Saguisag vs. Ochoa, Jr.
The United States shall return to the Philippines any Agreed Locations,
or any portion thereof, including non-relocatable structures and assemblies
constructed, modified, or improved by the United States, once no longer
required by United States forces for activities under this Agreement. The
Parties or the Designated Authorities shall consult regarding the terms of
return of any Agreed Locations, including possible compensation for
improvements or construction.
313 PH-US MDB and SEB Convenes, Department of National Defense,
available at <http://www.dndph.org/press-releases/ph-us-mdb-and-seb-convenes>
(last visited 3 December 2015).
416
416 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
At the beginning of Article IV, EDCA states that the Philippines gives the U.S.
the authority to bring in these equipment, supplies, and materiel through the MDB
and SEB security mechanism. These items are owned by the U.S., 314 are
exclusively for the use of the U.S.315 and, after going through the joint consent
mechanisms of the MDB and the SEB, are within the control of the U.S. 316 More
importantly, before these items are considered prepositioned, they must have gone
through the process of prior authorization by the MDB and the SEB and given
proper notification to the AFP.317
Therefore, this “unimpeded access” to the Agreed Locations is a necessary
adjunct to the ownership, use, and control of the U.S. over its own equipment,
supplies, and materiel and must have first been allowed by the joint mechanisms
in play between the two states since the time of the MDT and the VFA. It is not
the use of the Agreed Locations that is exclusive per se; it is mere access to items
in order to exercise the rights of ownership granted by virtue of the Philippine Civil
Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities and to
operate their own telecommunications system, it will be met and answered in
part D, infra.
 Petitioners also point out319 that EDCA is strongly reminiscent of and in fact 322 Id., at p. 1000. EDCA, Arts. I(1)(b), I(2), I(3), & III(4).
bears a one-to-one correspondence with the 323 Id., at p. 1002.
_______________

314 EDCA, Art. IV(3). 418

315 Id.
316 Id.
317 Id.
318 Such rights gleaned from Title II, Chapter I of the Civil Code are
(Cojuangco v. Sandiganbayan, 604 Phil. 670; 586 SCRA 790 [2009]) the right to
possess, to use and enjoy, to abuse or consume, to accessories, to dispose or
alienate, to recover or vindicate, and to the fruits.
319 Memorandum of Saguisag, et al., pp. 29-33, Rollo (G.R. No. 212426, Vol.
II), pp. 999-1003; Memorandum of Bayan, et al., pp. 41-71, Rollo (G.R. No.
212444), pp. 605-635.
417
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provisions of the 1947 MBA. They assert that both agreements (a) allow similar
activities within the area; (b) provide for the same “species of ownership” over
facilities; and (c) grant operational control over the entire area. Finally, they
argue320 that EDCA is in fact an implementation of the new defense policy of the
U.S. According to them, this policy was not what was originally intended either by
the MDT or by the VFA.
On these points, the Court is not persuaded.
The similar activities cited by petitioners321 simply show that under the MBA,
the U.S. had the right to construct, operate, maintain, utilize, occupy, garrison,
and control the bases. The so-called parallel provisions of EDCA allow only
operational control over the Agreed 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. EDCA in fact limits the
rights of the U.S. in respect of every activity, including construction, by giving the
MDB and the SEB the power to determine the details of all activities such as, but
not limited to, operation, maintenance, utility, occupancy, garrisoning, and
control.322
The “species of ownership” on the other hand, is distinguished by the nature of
the property. For immovable property constructed or developed by the U.S., EDCA
expresses that ownership will automatically be vested to the Philippines. 323 On the
other hand, for movable properties brought into the Philippines by the U.S., EDCA
provides that ownership is retained by the latter. In contrast, the MBA dictates
_______________
320 Memorandum of Saguisag, et al., pp. 33-35, Rollo (G.R. No. 212426, Vol.
II), pp. 1003-1005.
321 Id., at pp. 1000-1001.
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that the U.S. retains ownership over immovable and movable properties.
To our mind, both EDCA and the MBA simply incorporate what is already the
law of the land in the Philippines. The Civil Code’s provisions on ownership, as
applied, grant the owner of a movable property full rights over that property, even
if located in another person’s property.324
The parallelism, however, ends when the situation involves facilities that can
be considered immovable. Under the MBA, the U.S. retains ownership if it paid for
the facility.325 Under EDCA, an immovable is owned by the Philippines, even if
built completely on the back of U.S. funding.326 This is consistent with the
constitutional prohibition on foreign land ownership.327
Despite the apparent similarity, the ownership of property is but a part of a
larger whole that must be considered before the constitutional restriction is
violated. Thus, petitioners’ points on operational control will be given more
attention in the discussion below. The arguments on policy are, however, outside
the scope of judicial review and will not be discussed.
Moreover, a direct comparison of the MBA and EDCA will result in several
important distinctions that would allay suspicion that EDCA is but a disguised
version of the MBA.
b. There are substantial
matters that the U.S. can-
not do under EDCA, but
which it was authorized to
do under the 1947 MBA.
_______________
324 See generally Civil Code, Arts. 427-429.
325 Memorandum of Saguisag, et al., pp. 33-35, Rollo (G.R. No. 212426, Vol.
II), pp. 1001-1002.
326 Id.
327 Constitution, Art. XII, Sec. 7.
419
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The Philippine experience with U.S. military bases under the 1947 MBA is
simply not possible under EDCA for a number of important reasons.
 First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over
Philippine territory occupied by American bases. In contrast, the U.S. under EDCA
does not enjoy any such right over any part of the Philippines in which its forces
or equipment may be found. Below is a comparative table between the old treaty
and EDCA: 426
426 SUPREME COURT REPORTS ANNOTATED
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 In sum, EDCA is a far cry from a basing agreement as was understood by the
people at the time that the 1987 Constitution was adopted.
Nevertheless, a comprehensive review of what the Constitution means by
“foreign military bases” and “facilities” is required before EDCA can be deemed to
have passed judicial scrutiny.
c. The meaning of military
facilities and bases.
An appreciation of what a military base is, as understood by the Filipino people
in 1987, would be vital in determining whether EDCA breached the constitutional
restriction.
Prior to the drafting of the 1987 Constitution, the last definition of “military
base” was provided under Presidential
432
432 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Decree No. (PD) 1227.328 Unlawful entry into a military base is punishable
under the decree as supported by Article 281 of the Revised Penal Code, which
itself prohibits the act of trespass.
Section 2 of the law defines the term in this manner: “‘[M]ilitary base’ as used
in this decree means any military, air, naval, or coast guard reservation, base, fort,
camp, arsenal, yard, station, or installation in the Philippines.”
Commissioner Tadeo, in presenting his objections to U.S. presence in the
Philippines before the 1986 Constitutional Commission, listed the areas that he
considered as military bases:
1,000 hectares Camp O’Donnel
20,000 hectares Crow Valley Weapon’s Range
55,000 hectares Clark Air Base
150 hectares Wallace Air Station
400 hectares John Hay Air Station
15,000 hectares Subic Naval Base
1,000 hectares San Miguel Naval Communication
750 hectares Radio Transmitter in Capas, Tarlac
900 hectares Radio Bigot Annex at Bamban, Tarlac329
The Bases Conversion and Development Act of 1992 described its coverage in
its Declaration of Policies:
Sec. 2. Declaration of Policies.—It is hereby declared the policy of the
Government to accelerate the sound and balanced conversion into
alternative productive uses of the Clark and Subic military reservations
and their extensions (John Hay Station, Wallace Air Station, O’Donnell
Transmitter Station, San Miguel Naval Communications Station and
Capas Relay Station), to
_______________
328 P.D. No. 1227 – Punishing Unlawful Entry into Any Military Base in the
Philippines, Sec. 2.
329 IV Record, Constitutional Commission, p. 648 (15 September 1986).
433
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Saguisag vs. Ochoa, Jr.
raise funds by the sale of portions of Metro Manila military camps, and
to apply said funds as provided herein for the development and conversion
to productive civilian use of the lands covered under the 1947 Military
Bases Agreement between the Philippines and the United States of
America, as amended.330
The result of the debates and subsequent voting is Section 25, Article XVIII of
the Constitution, which specifically restricts, among others, foreign military
facilities or bases. At the time of its crafting of the Constitution, the 1986
Constitutional Commission had a clear idea of what exactly it was restricting.
While the term “facilities and bases” was left undefined, its point of reference was
clearly those areas covered by the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-evolving world
of military technology and geopolitics has surpassed the understanding of the
Philippine people in 1986. The last direct military action of the U.S. in the region
was the use of Subic base as the staging ground for Desert Shield and Desert Storm
during the Gulf War.331 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.
Henceforth, any proposed entry of U.S. forces into the Philippines had to evolve
likewise, taking into consideration the subsisting agreements between both
parties, the rejection of the 1991 proposal, and a concrete understanding of what
was constitutionally restricted. This trend birthed the VFA which, as discussed,
has already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed “Agreed
Locations.”
By definition, Agreed Locations are:
_______________
330 R.A. No. 7227.
331 Padua, supra note 64.
434
434 SUPREME COURT REPORTS ANNOTATED
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 facilities and areas that are provided by the Government of the
Philippines through the AFP and that United States forces, United States
contractors, and others as mutually agreed, shall have the right to access
and use pursuant to this Agreement. Such Agreed Locations may be listed
in an annex to be appended to this Agreement, and may be further
described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines
shall retain ownership of and title to the Agreed Locations means that EDCA is
“consistent with Article II of the VFA which recognizes Philippine sovereignty and
jurisdiction over locations within Philippine territory.”333
By this interpretation, respondent acknowledges that the contention of
petitioners springs from an understanding that the Agreed Locations merely
circumvent the constitutional restrictions. Framed differently, the bone of
contention is whether the Agreed Locations are, from a legal perspective, foreign
military facilities or bases. This legal framework triggers Section 25, Article XVIII,
and makes Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is
authorized by the Philippines to “conduct the following activities: “training;
transit; support and related activities; refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
supplies and materiel; deploying forces and materiel; and such other activities as
the Parties may agree.”
This creation of EDCA must then be tested against a proper interpretation of
the Section 25 restriction.
_______________
332 EDCA, Art. II(4).
333 Memorandum of OSG, p. 23, Rollo (G.R. No. 212426), p. 453.
435
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d. Reasons for the constitu-
tional requirements and le-
gal standards for constitu-
tionally compatible mili-
tary bases and facilities.
Section 25 does not define what is meant by a “foreign military facility or base.”
While it specifically alludes to U.S. military facilities and bases that existed during
the framing of the Constitution, the provision was clearly meant to apply to those
bases existing at the time and to any future facility or base. The basis for the
restriction must first be deduced from the spirit of the law, in order to set a
standard for the application of its text, given the particular historical events
preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to glean,
from their collective wisdom, the intent of Section 25. Their speeches are rich with
history and wisdom and present a clear picture of what they considered in the
crafting the provision.
SPEECH OF COMMISSIONER REGALADO334
xxxx
We have been regaled here by those who favor the adoption of the anti-
bases provisions with what purports to be an objective presentation of the
historical background of the military bases in the Philippines. Care
appears, however, to have been taken to underscore the inequity in their
inception as well as their implementation, as to seriously reflect on
the supposed objectivity of the report. Pronouncements of military and
civilian officials shortly after World War II are quoted in support of the
proposition on neutrality; regrettably, the implication is that the same
remains valid today, as if
_______________
334 IV Record, Constitutional Commission, pp. 628-630 (15 September 1986).
436
436 SUPREME COURT REPORTS ANNOTATED
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the world and international activity stood still for the last 40 years.
We have been given inspired lectures on the effect of the
presence of the military bases on our sovereignty — whether in its
legal or political sense is not clear — and the theory that any
country with foreign bases in its territory cannot claim to be fully
sovereign or completely independent.
I was not aware that the concepts of sovereignty and independence have
now assumed the totality principle, such that a willing assumption of some
delimitations in the exercise of some aspects thereof would put that State
in a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and
cons on the advisability of having military bases within our shores. Most of
us who, only about three months ago, were just mulling the prospects of
these varying contentions are now expected, like armchair generals, to
decide not only on the geopolitical aspects and contingent implications of
the military bases but also on their political, social, economic and cultural
impact on our national life. We are asked to answer a plethora of questions,
such as: 1) whether the bases are magnets of nuclear attack or are
deterrents to such attack; 2) whether an alliance or mutual defense treaty
is a derogation of our national sovereignty; 3) whether criticism of us by
 Russia, Vietnam and North Korea is outweighed by the support for us of
the ASEAN countries, the United States, South Korea, Taiwan, Australia
and New Zealand; and 4) whether the social, moral and legal problems
spawned by the military bases and their operations can be compensated by
the economic benefits outlined in papers which have been furnished
recently to all of us.335
xxxx
_______________
335 Id., at p. 628.
437
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Of course, one side of persuasion has submitted categorical,
unequivocal and forceful assertions of their positions. They are entitled to
the luxury of the absolutes. We are urged now to adopt the proposed
declaration as a “golden,” “unique” and “last” opportunity for
Filipinos to assert their sovereign rights. Unfortunately, I have never
been enchanted by superlatives, much less for the applause of the moment
or the ovation of the hour. Nor do I look forward to any glorious summer
after a winter of political discontent. Hence, if I may join Commissioner
Laurel, I also invoke a caveat not only against the tyranny of labels but also
the tyranny of slogans.336
xxxx
SPEECH OF COMMISSIONER SUAREZ337
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of
the problem of the removal of foreign bases from the Philippines have been
adequately treated by previous speakers. Let me, therefore, just
recapitulate the arguments adduced in favor of a foreign bases-free
Philippines:
1. That every nation should be free to shape its own destiny
without outside interference;
2. That no lasting peace and no true sovereignty would ever be
achieved so long as there are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the
very substance of national sovereignty and this is a constant source of
national embarrassment and an insult to our national dignity and self-
respect as a nation;
_______________
336 Id., at p. 629.
337 Id., at pp. 630-631.
438
438 SUPREME COURT REPORTS ANNOTATED
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4. That these foreign military bases unnecessarily expose our
country to devastating nuclear attacks;
5. That these foreign military bases create social problems and are
designed to perpetuate the strangle-hold of United States interests in our
national economy and development;
6. That the extraterritorial rights enjoyed by these foreign bases
operate to deprive our country of jurisdiction over civil and
criminal offenses committed within our own national territory and
against Filipinos;
7. That the bases agreements are colonial impositionsand
dictations upon our helpless country; and
8. That on the legal viewpoint and in the ultimate analysis, all the
bases agreements are null and void ab initio, especially because they did
not count the sovereign consent and will of the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could
accommodate the provisions I have cited, what is our objection to include
in our Constitution a matter as priceless as the nationalist values we
cherish? A matter of the gravest concern for the safety and survival
of this nationindeed deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-
respect as a nation and the future of generations to come with thirty pieces
of silver?339
_______________
338 Id., at p. 630.
339 Id., at p. 631.
439
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Saguisag vs. Ochoa, Jr.
SPEECH OF COMMISSIONER BENNAGEN340
xxxx
The underlying principle of military bases and nuclear weapons
wherever they are found and whoever owns them is that those are for
killing people or for terrorizing humanity. This objective by itself at
any point in history is morally repugnant. This alone is reason enough for
 us to constitutionalize the ban on foreign military bases and on nuclear an incidental and secondary way, the security interest of the Republic of
weapons.341 the Philippines and the region. Yes, of course, Mr. Enrile also echoes the
sentiments of most of us in this Commission, namely: It is ideal for us as
SPEECH OF COMMISSIONER BACANI342 an independent and sovereign nation to ultimately abrogate the
xxxx RP-US military treaty and, at the right time, build our own air and
x x x Hence, the remedy to prostitution does not seem to be naval might.347
primarily to remove the bases because even if the bases are removed, xxxx
the girls mired in poverty will look for their clientele elsewhere. The remedy Allow me to say in summation that I am for the retention of
to the problem of prostitution lies primarily elsewhere — in an alert and American military bases in the Philippines provided that such an
concerned citizenry, a healthy economy and a sound education in values.343 extension from one period to another shall be concluded upon
concurrence of the parties, and such extension shall be based on
SPEECH OF COMMISSIONER JAMIR344 justice, the historical amity of
xxxx
One of the reasons advanced against the maintenance of _______________
foreign military bases here is that they impair portions of our
sovereignty. While I agree that our country’s sovereignty should not be 345 Id., at p. 636.
impaired, I also hold the view that there are times when it is necessary to 346 Id., at pp. 637-639.
do so according to the imperatives of national interest. There are 347 Id., at p. 638.
precedents to this effect. Thus, during World War II, England leased its
bases in the West Indies and in Bermuda for 99 years to the United
_______________ 441
VOL. 779, JANUARY 12, 2016 441
340 Id., at pp. 632-634.
341 Id., at p. 632. Saguisag vs. Ochoa, Jr.
342 Id., at pp. 634-635.
343 Id., at p. 634. the people of the Philippines and the United States and their
344 Id., at pp. 635-636. common defense interest.348

SPEECH OF COMMISSIONER ALONTO349

440
440 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
States for its use as naval and air bases. It was done in consideration of
50 overaged destroyers which the United States gave to England for its use
in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United
States for the latter’s use as a naval base in the Indian Ocean. About the
same time, the United States obtained bases in Spain, Egypt and Israel. In
doing so, these countries, in effect, contributed to the launching of a
preventive defense posture against possible trouble in the Middle East and
in the Indian Ocean for their own protection.345
SPEECH OF COMMISSIONER TINGSON346
xxxx
In the case of the Philippines and the other Southeast Asian nations,
the presence of American troops in the country is a projection of America’s
security interest. Enrile said that nonetheless, they also serve, although in
xxxx
Madam President, sometime ago after this Commission started with
this task of framing a constitution, I read a statement of President Aquino
to the effect that she is for the removal of the U.S. military bases in this
country but that the removal of the U.S. military bases should not be done
just to give way to other foreign bases. Today, there are two world
superpowers, both vying to control any and all countries which have
importance to their strategy for world domination. The Philippines is one
such country.
Madam President, I submit that I am one of those ready to
completely remove any vestiges of the days of enslavement, but not
prepared to erase them if to do so would merely leave a vacuum to be
occupied by a far worse type.350
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our
brethren in the Middle East, in Indo-China, Central America, in South
Africa — there has been escalation of war in some of these areas because of
foreign intervention which views these conflicts through the narrow prism
 of the East-West conflict. The United States bases have been used as 353 Id., at p. 644.
springboards for intervention in some of these conflicts. We should 354 Id., at pp. 645-649.
not allow ourselves to be party to the warlike mentality of these
foreign interventionists. We must al-
_______________ 443
VOL. 779, JANUARY 12, 2016 443
348 Id., at p. 639.
349 Id., at pp. 640-641. Saguisag vs. Ochoa, Jr.
350 Id., at p. 640.
351 Id., at pp. 641-645. litically and culturally. Para sa sambayanang magbubukid ang U.S.
military bases ay kasingkahulugan ng nuclear weapon — ang kahulugan
ay magneto ng isang nuclear war. Para sa sambayanang magbubukid, ang
442 kahulugan ng U.S. military basesay isang salot.355
442 SUPREME COURT REPORTS ANNOTATED SPEECH OF COMMISSIONER QUESADA356
Saguisag vs. Ochoa, Jr. xxxx
The drift in the voting on issues related to freeing ourselves from the
ways be on the side of peace — this means that we should not always instruments of domination and subservience has clearly been defined these
rely on military solution.352 past weeks.
xxxx xxxx
x x x The United States bases, therefore, are springboards for So for the record, Mr. Presiding Officer, I would like to declare my support for
intervention in our own internal affairs and in the affairs of other the committee’s position to enshrine in the Constitution a fundamental principle
nations in this region. forbidding foreign military bases, troops or facilities in any part of the Philippine
xxxx territory as a clear and concrete manifestation of our inherent right to
Thus, I firmly believe that a self-respecting nation should safeguard its national self-determination, independence and sovereignty.
fundamental freedoms which should logically be declared in black and Mr. Presiding Officer, I would like to relate now these attributes of genuine
white in our fundamental law of the land — the Constitution. Let us nationhood to the social cost of allowing foreign countries to maintain military
express our desire for national sovereignty so we may be able to bases in our country. Previous speakers have dwelt on this subject, either to
achieve national self-determination. Let us express our desire for highlight its importance in relation to the other issues or to gloss over its
neutrality so that we may be able to follow active nonaligned independent significance and make this a part of future negotiations.357
foreign policies. Let us express our desire for peace and a nuclear-free zone xxxx
so we may be able to pursue a healthy and tranquil existence, to have peace Mr. Presiding Officer, I feel that banning foreign military bases is one of the
that is autonomous and not imposed.353 solutions and is the response of the Filipino people against this condition and other
conditions that have already been clearly and emphati-
xxxx _______________
SPEECH OF COMMISSIONER TADEO354
Para sa magbubukid, ano ba ang kahulugan ng U.S. military 355 Id., at p. 645.
bases? Para sa magbubukid, ang kahulugan nito ay pagkaalipin. 356 Id., at pp. 649-652.
Para sa magbubukid, ang pananatili ng U.S. military bases ay tinik sa 357 Id., at p. 650.
dibdib ng sambayanang Pilipinong patuloy na nakabaon. Para sa
sambayanang magbubukid, ang ibig sabihin ng U.S. military
bases ay batong pabigat na patuloy na pinapasan ng sambayanang 444
Pilipino. Para sa sambayanang magbubukid, ang pananatili ng U.S. 444 SUPREME COURT REPORTS ANNOTATED
military bases ay isang nagdudumilat na katotohanan ng patuloy na
paggahasa ng imperyalistang Estados Unidos sa ating Inang Saguisag vs. Ochoa, Jr.
Bayan — economically, po-
_______________ cally discussed in past deliberations. The deletion, therefore, of Section
3 in the Constitution we are drafting will have the following implications:
352 Id., at p. 643. First, the failure of the Constitutional Commission to decisively
respond to the continuing violation of our territorial
 integrity via the military bases agreement which permits the Mr. Presiding Officer, in advocating the majority committee report,
retention of U.S. facilities within the Philippine soil over which our specifically Sections 3 and 4 on neutrality, nuclear and bases-free country,
authorities have no exclusive jurisdiction contrary to the accepted some views stress sovereignty of the Republic and even invoke
definition of the exercise of sovereignty. survival of the Filipino nation and people.361
Second, consent by this forum, this Constitutional Commission, to
an exception in the application of a provision in the Bill of REBUTTAL OF COMMISSIONER NOLLEDO362
Rights that we have just drafted regarding equal application of the laws of xxxx
the land to all inhabitants, permanent or otherwise, within its territorial The anachronistic and ephemeral arguments against the provisions of
boundaries. the committee report to dismantle the American bases after 1991 only show
Third, the continued exercise by the United States of the urgent need to free our country from the entangling alliance with
extraterritoriality despite the condemnations of such practice by the any power bloc.363
world community of nations in the light of overwhelming international xxxx
approval of eradicating all vestiges of colonialism.358 x x x x Mr. Presiding Officer, it is not necessary for us to possess
xxxx expertise to know that the so-called RP-US Bases
Sixth, the deification of a new concept called pragmatic _______________
sovereignty, in the hope that such can be wielded to force the United
States government to concede to better terms and conditions concerning the 359 Id., at p. 652.
military bases agreement, including the transfer of complete control to 360 Id., at pp. 652-653.
the Philippine government of the U.S. facilities, while in the 361 Id.
meantime we have to suffer all existing indignities and disrespect towards 362 Id., at pp. 653-654.
our rights as a sovereign nation. 363 Id., at p. 653.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign
military bases as essentially a question of sovereignty which does 446
not require in-
446 SUPREME COURT REPORTS ANNOTATED
_______________
Saguisag vs. Ochoa, Jr.
358 Id., at p. 651.
Agreement will expire in 1991, that it infringes on our sovereignty
and jurisdiction as well as national dignity and honor, that it goes
445 against the UN policy of disarmament and that it
constitutes unjust intervention in our internal affairs.364 (Emphases
VOL. 779, JANUARY 12, 2016 445
supplied)
Saguisag vs. Ochoa, Jr.
The Constitutional Commission eventually agreed to allow foreign military
depth studies or analyses and which this forum has, as a constituent bases, troops, or facilities, subject to the provisions of Section 25. It is thus
assembly drafting a constitution, the expertise and capacity to decide on important to read its discussions carefully. From these discussions, we can deduce
except that it lacks the political will that brought it to existence and now three legal standards that were articulated by the Constitutional Commission
engages in an elaborate scheme of buck-passing. Members. These are characteristics of any agreement that the country, and by
xxxx extension this Court, must ensure are observed. We can thereby determine
Without any doubt we can establish a new social order in our country, whether a military base or facility in the Philippines, which houses or is accessed
if we reclaim, restore, uphold and defend our national by foreign military troops, is foreign or remains a Philippine military base or
sovereignty. National sovereignty is what the military bases issue is facility. The legal standards we find applicable are: independence from foreign
all about. It is only the sovereign people exercising their national control, sovereignty and applicable law, and national security and territorial
sovereignty who can design an independent course and take full control of integrity.
their national destiny.359
i. First standard: independence
SPEECH OF COMMISSIONER PADILLA360 from foreign control
xxxx
 Very clearly, much of the opposition to the U.S. bases at the time of the
Constitution’s drafting was aimed at asserting Philippine independence from the
U.S., as well as control over our country’s territory and military.
Under the Civil Code, there are several aspects of control exercised over
property.
Property is classified as private or public.365 It is public if “intended for public
use, such as roads, canals, rivers, torrents, ports and bridges constructed by the
State, banks, shores, roadsteads, and others of similar character[,]” or
_______________
364 Id., at p. 654.
365 Civil Code, Art. 419.
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“[t]hose which belong to the State, without being for public use, and are
intended for some public service or for the development of the national wealth.”366
Quite clearly, the Agreed Locations are contained within a property for public
use, be it within a government military camp or property that belongs to the
Philippines.
Once ownership is established, then the rights of ownership flow freely. Article
428 of the Civil Code provides that “[t]he owner has the right to enjoy and dispose
of a thing, without other limitations than those established by law.” Moreover, the
owner “has also a right of action against the holder and possessor of the thing in
order to recover it.”
Philippine civil law therefore accords very strong rights to the owner of
property, even against those who hold the property. Possession, after all, merely
raises a disputable presumption of ownership, which can be contested through
normal judicial processes.367
In this case, EDCA explicitly provides that ownership of the Agreed Locations
remains with the Philippine government.368 What U.S. personnel have a right to,
pending mutual agreement, is access to and use of these locations.369
The right of the owner of the property to allow access and use is consistent with
the Civil Code, since the owner may dispose of the property in whatever way
deemed fit, subject to the limits of the law. So long as the right of ownership itself
is not transferred, then whatever rights are transmitted by agreement does not
completely divest the owner of the rights over the property, but may only limit
them in accordance with law.
_______________
366 Id., Art. 420.
367 Id., Art. 433.
368 EDCA, Art. V.
369 Id., Art. II(4).
448
448 SUPREME COURT REPORTS ANNOTATED
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Hence, even control over the property is something that an owner may
transmit freely. This act does not translate into the full transfer of ownership, but
only of certain rights. In Roman Catholic Apostolic Administrator of Davao, Inc. v.
Land Registration Commission, we stated that the constitutional proscription on
property ownership is not violated despite the foreign national’s control over the
property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a contract
of use and access. Under its pertinent provisions, it is the Designated Authority of
the Philippines that shall, when requested, assist in facilitating transit or access
to public land and facilities.371 The activities carried out within these locations are
subject to agreement as authorized by the Philippine government.372 Granting the
U.S. operational control over these locations is likewise subject to EDCA’s security
mechanisms, which are bilateral procedures involving Philippine consent and
cooperation.373 Finally, the Philippine Designated Authority or a duly designated
representative is given access to the Agreed Locations.374
To our mind, these provisions do not raise the spectre of U.S. control, which
was so feared by the Constitutional Commission. In fact, they seem to have been
the product of deliberate negotiation from the point of view of the Philippine
government, which balanced constitutional restrictions on foreign military bases
and facilities against the security needs of the country. In the 1947 MBA, the U.S.
forces had “the right, power and authority x x x to construct (including dredging
and filling), operate, maintain, utilize, occupy, garrison
_______________
370 Roman Catholic Apostolic Administrator of Davao, Inc. v. Land
Registration Commission, 102 Phil. 596 (1957).
371 EDCA, Art. III(2).
372 Id., Art. III(1).
373 Id., Art. III(4).
374 Id., Art. III(5).
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Saguisag vs. Ochoa, Jr.
and control the bases.”375 No similarly explicit provision is present in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military
facilities and bases has been raised by the present Constitution. Section 25 is
explicit that foreign military bases, troops, or facilities shall not be allowed in the
Philippines, except under a treaty duly concurred in by the Senate. Merely stating
that the Philippines would retain ownership would do violence to the
constitutional requirement if the Agreed Locations were simply to become a less
obvious manifestation of the U.S. bases that were rejected in 1991.
When debates took place over the military provisions of the Constitution, the
committee rejected a specific provision proposed by Commissioner Sarmiento. The
discussion illuminates and provides context to the 1986 Constitutional
Commission’s vision of control and independence from the U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment
reads as follows: “THE STATE SHALL ESTABLISH AND MAINTAIN AN
INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE
PHILIPPINES.” Allow me to briefly explain, Madam President. The Armed
Forces of the Philippines is a vital component of Philippine society
depending upon its training, orientation and support. It will either be the
people’s protector or a staunch supporter of a usurper or tyrant, local and
foreign interest. The Armed Forces of the Philippines’ past and
recent experience shows it has never been independent and self-
reliant. Facts, data and statistics will show that it has been substantially
dependent upon a foreign power. In March 1968, Congressman Barbero,
himself a member of the Armed Forces of the Philippines, revealed top
secret documents showing what he described as U.S. dictation over the af-
_______________
375 1947 MBA, III(2)(a).
450
450 SUPREME COURT REPORTS ANNOTATED
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fairs of the Armed Forces of the Philippines. He showed that under
existing arrangements, the United States unilaterally determines
not only the types and quantity of arms and equipments that our
armed forces would have, but also the time when these items are
to be made available to us. It is clear, as he pointed out, that the
composition, capability and schedule of development of the Armed
Forces of the Philippines is under the effective control of the U.S.
government.376 (Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987
Constitution that would assert “independent” and “self-reliant” armed forces. This
proposal was rejected by the committee, however. As Commissioner De
Castro asserted, the involvement of the Philippine military with the U.S.
did not, by itself, rob the Philippines of its real independence. He made
reference to the context of the times: that the limited resources of the Philippines
and the current insurgency at that time necessitated a strong military relationship
with the U.S. He said that the U.S. would not in any way control the Philippine
military despite this relationship and the fact that the former would furnish
military hardware or extend military assistance and training to our military.
Rather, he claimed that the proposal was in compliance with the treaties between
the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on
U.S. military bases on 12 September 1986, I spoke on the self-reliance
policy of the armed forces. However, due to very limited resources, the only
thing we could do is manufacture small arms ammunition. We cannot
blame the armed forces. We have to blame the whole Republic of the
Philippines for failure to provide the necessary funds to make the
Philippine
_______________
376 V Record, Constitutional Commission, p. 240 (30 September 1986).
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Armed Forces self-reliant. Indeed that is a beautiful dream. And I
would like it that way. But as of this time, fighting an insurgency case, a
rebellion in our country —insurgency — and with very limited funds and
very limited number of men, it will be quite impossible for the Philippines
to appropriate the necessary funds therefor. However, if we say that the
U.S. government is furnishing us the military hardware, it is not
control of our armed forces or of our government. It is in
compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States
to furnish us the necessary hardware in connection with the military bases
agreement. Please be informed that there are three (3) treaties connected
with the military bases agreement; namely: the RP-US Military Bases
Agreement, the Mutual Defense Treaty and the Military Assistance
Program.
My dear Commissioner, when we enter into a treaty and we are
furnished the military hardware pursuant to that treaty, it is not
in control of our armed forces nor control of our government. True
indeed, we have military officers trained in the U.S. armed forces school.
This is part of our Military Assistance Program, but it does not mean that
the minds of our military officers are for the U.S. government, no. I am one
of those who took four courses in the United States schools, but I assure
you, my mind is for the Filipino people. Also, while we are sending military
officers to train or to study in U.S. military schools, we are also sending our
officers to study in other military schools such as in Australia, England and
in Paris. So, it does not mean that when we send military officers to United
States schools or to other military schools, we will be under the control of
that country. We also have foreign officers in our schools, we in the
Command and General Staff College in Fort Bonifacio and in our National
De-

452
452 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
fense College, also in Fort Bonifacio.377 (Emphases supplied)
This logic was accepted in Tañada v. Angara, in which the Court ruled that
independence does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a “self-reliant and
independent national economy” does not necessarily rule out the entry
of foreign investments, goods and services. It contemplates neither
“economic seclusion” nor “mendicancy in the international community.” As
explained by Constitutional Commissioner Bernardo Villegas, sponsor of
this constitutional policy:
Economic self-reliance is a primary objective of a developing
country that is keenly aware of overdependence on external
assistance for even its most basic needs. It does not mean autarky
or economic seclusion; rather, it means avoiding mendicancy in the
international community. Independence refers to the freedom
from undue foreign control of the national economy, especially
in such strategic industries as in the development of natural
resources and public utilities.378(Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and
bases is therefore the assertion of independence from the U.S. and other foreign
powers, as independence is exhibited by the degree of foreign control exerted over
these areas. The essence of that independence is selfgovernance and self-
control.379Independence itself is “[t]he
_______________
377 Id., at pp. 240-241.
378 Tañada v. Angara, supra note 97.
379 Tydings-McDuffie Act, Section 10(a), Pub.L. 73-127, 48 Stat. 456 (enacted
24 March 1934).
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state or condition of being free from dependence, subjection, or control.”380
Petitioners assert that EDCA provides the U.S. extensive control and authority
over Philippine facilities and locations, such that the agreement effectively violates
Section 25 of the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary for
“operational control and defense.” The term “operational control” has led
petitioners to regard U.S. control over the Agreed Locations as unqualified and,
therefore, total.382Petitioners contend that the word “their” refers to the subject
“Agreed Locations.”
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and
authorities within Agreed Locations that are necessary for their
operational control or defense, including taking appropriate measure to
protect United States forces and United States contractors. The United
States should coordinate such measures with appropriate authorities of the
Philippines.
A basic textual construction would show that the word “their,” as understood
above, is a possessive pronoun for the subject “they,” a third-person personal
pronoun in plural form. Thus, “their” cannot be used for a nonpersonal subject such
as “Agreed Locations.” The simple grammatical conclusion is that “their” refers to
the previous third-person plural noun, which is “United States forces.” This
conclusion is in line with the definition of operational control.
_______________
380 Black’s Law Dictionary, p. 770 (6th ed., 1990). See also J. Carpio’s
Dissenting Opinion in Liban v. Gordon, 654 Phil. 680; 639 SCRA 709 (2011).
381 Memorandum of Saguisag, p. 56, Rollo (G.R. No. 212426), p. 594.
382 Id., at p. 596.
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454 SUPREME COURT REPORTS ANNOTATED
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a. U.S. operational control as
the exercise of authority
over U.S. personnel, and not
over the Agreed Locations.
Operational control, as cited by both petitioner and respondents, is a military
term referring to:
[t]he authority to perform those functions of command over subordinate
forces involving organizing and employing commands and forces, assigning
tasks, designating objective, and giving authoritative direction necessary
to accomplish the mission.383
At times, though, operational control can mean something slightly different.
In JUSMAG Philippines v. National Labor Relations Commission, the
Memorandum of Agreement between the AFP and JUSMAG Philippines defined
the term as follows:384
The term “Operational Control” includes, but is not limited to, all
personnel administrative actions, such as: hiring recommendations; firing
recommendations; position classification; discipline; nomination and
approval of incentive awards; and payroll computation.
Clearly, traditional standards define “operational control” as personnel
control. Philippine law, for instance, deems operational control as one exercised by
police officers and civilian authorities over their subordinates and is distinct from
the administrative control that they also exercise over police
subordinates.385 Similarly, a municipal mayor exercises operational control over
the police within the municipal govern-
_______________
383 Id., at p. 460.
384 G.R. No. 108813, 15 December 1994, 239 SCRA 224, 229.
385 R.A. No. 6975 — Department of the Interior and Local Government Act of
1990, Sec. 86; P.D. No. 531, Secs. 4, 5, and 6.
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Saguisag vs. Ochoa, Jr.
ment,386 just as city mayor possesses the same power over the police within the
city government.387
Thus, the legal concept of operational control involves authority over personnel
in a commander-subordinate relationship and does not include control over the
Agreed Locations in this particular case. Though not necessarily stated in EDCA
provisions, this interpretation is readily implied by the reference to the taking of
“appropriate measures to protect United States forces and United States
contractors.”
It is but logical, even necessary, for the U.S. to have operational control over
its own forces, in much the same way that the Philippines exercises operational
control over its own units.
For actual operations, EDCA is clear that any activity must be planned and
preapproved by the MDB-SEB.388 This provision evinces the partnership aspect of
EDCA, such that both stakeholders have a say on how its provisions should be put
into effect.
b. Operational control
vis-à-vis effective com-
mand and control.
Petitioners assert that beyond the concept of operational control over
personnel, qualifying access to the Agreed Locations by the Philippine Designated
Authority with the phrase “consistent with operational safety and security
requirements in accordance with agreed procedures developed by the Parties”
leads to the conclusion that the U.S. exercises effective control over the Agreed
Locations.389 They claim that if the Philippines exercises possession of and control
over a given
_______________
386 Local Government Code of 1991, Sec. 444.
387 Id., Sec. 455.
388 Rollo (G.R. No. 212426), pp. 515-525.
389 Id., at p. 597.
456
456 SUPREME COURT REPORTS ANNOTATED
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area, its representative should not have to be authorized by a special
provision.390
For these reasons, petitioners argue that the “operational control” in EDCA is
the “effective command and control” in the 1947 MBA.391 In their Memorandum,
they distinguish effective command and control from operational control in U.S.
parlance.392 Citing the Doctrine for the Armed Forces of the United States, Joint
Publication 1, “command and control (C2)” is defined as “the exercise of authority
and direction by a properly designated commander over assigned and attached
forces in the accomplishment of the mission x x x.”393 Operational control, on the
other hand, refers to “[t]hose functions of command over assigned forces involving
the composition of subordinate forces, the assignment of tasks, the designation of
objectives, the overall control of assigned resources, and the full authoritative
direction necessary to accomplish the mission.”394
Two things demonstrate the errors in petitioners’ line of argument.
Firstly, the phrase “consistent with operational safety and security
requirements in accordance with agreed procedures developed by the Parties” does
not add any qualification beyond that which is already imposed by existing
treaties. To recall, EDCA is based upon prior treaties, namely the VFA and the
MDT.395 Treaties are in themselves contracts from which rights and obligations
may be claimed or waived.396
_______________
390 Id.
391 Id., at p. 598.
392 Id., at p. 599.
393 Id., footnote 76.
394 Id., footnote 77.
395 EDCA, preamble.
396 See: Bayan Muna v. Romulo, supra note 114; Bayan (Bagong Alyansang
Makabayan) v. Zamora, supra note 23; USAFFE Veterans Ass’n., Inc. v. Treasurer
of the Phil., supra note 173; Vienna Convention on the Law of the Treaties, Art. 27
(on internal law and observance of
457
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In this particular case, the Philippines has already agreed to abide by the
security mechanisms that have long been in place between the U.S. and the
Philippines based on the implementation of their treaty relations. 397
Secondly, the full document cited by petitioners contradicts the equation of
“operational control” with “effective command and control,” since it defines the
terms quite differently, viz.:398
Command and control encompasses the exercise of authority,
responsibility, and direction by a commander over assigned and attached
forces to accomplish the mission. Command at all levels is the art of
motivating and directing people and organizations into action to accomplish
missions. Control is inherent in command. To control is to manage and
direct forces and functions consistent with a commander’s command
authority. Control of forces and functions helps commanders and staffs
compute requirements, allocate means, and integrate efforts. Mission
command is the preferred method of exercising C2. A complete discussion
of tenets, organization, and processes for effective C2 is provided in Section
B, “Command and Control of Joint Forces,” of Chapter V “Joint Command
and Control.”
treaties) in relation to Art. 46 (on provisions of internal law regarding
competence to conclude treaties).
397 “Under EDCA, before constructions and other activities can be
undertaken, prior consent of the Philippines will have to be secured through the
Mutual Defense Board (MDB) and Security Engagement Board (SEB) which were
established under the MDT and the VFA.” See Q&A on the Enhanced Defense
Cooperation Agreement, Official Gazette, available at
<http://www.gov.ph/2014/04/28/qna-on-the-enhanced-defense-cooperation-
agreement> (last accessed 3 December 2015).
398 United States Department of Defense, Doctrine for the Armed Forces of
the United States: Joint Publication 1, Chaps. 1-18 (2013).
458
458 SUPREME COURT REPORTS ANNOTATED
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Operational control is defined thus:399
OPCON is able to be delegated from a lesser authority than COCOM.
It is the authority to perform those functions of command over subordinate
forces involving organizing and employing commands and forces, assigning
tasks, designating objectives, and giving authoritative direction over all
aspects of military operations and joint training necessary to accomplish
the mission. It should be delegated to and exercised by the commanders of
subordinate organizations; normally, this authority is exercised through
subordinate JFCs, Service, and/or functional component commanders.
OPCON provides authority to organize and employ commands and forces
as the commander considers necessary to accomplish assigned missions. It
does not include authoritative direction for logistics or matters of
administration, discipline, internal organization, or unit training. These
elements of COCOM must be specifically delegated by the CCDR. OPCON
does include the authority to delineate functional responsibilities and
operational areas of subordinate JFCs.
Operational control is therefore the delegable aspect of combatant command,
while command and control is the overall power and responsibility exercised by
the commander with reference to a mission. Operational control is a narrower
power and must be given, while command and control is plenary and vested in a
commander. Operational control does not include the planning, programming,
budgeting, and execution process input; the assignment of subordinate
commanders; the building of relationships with Department of Defense agencies;
or the directive authority for logistics, whereas these factors are included in the
concept of command and control.400
_______________
399 Id., at Chap. V-6.
400 Id., at Chap. V-2.
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This distinction, found in the same document cited by petitioners, destroys the
very foundation of the arguments they have built: that EDCA is the same as the
MBA.
c. Limited operational control over the Agreed Locations only for
construction activities.
As petitioners assert, EDCA indeed contains a specific provision that gives to
the U.S. operational control within the Agreed Locations during construction
activities.401 This exercise of operational control is premised upon the approval by
the MDB and the SEB of the construction activity through consultation and
mutual agreement on the requirements and standards of the construction,
alteration, or improvement.402
Despite this grant of operational control to the U.S., it must be emphasized
that the grant is only for construction activities. The narrow and limited instance
wherein the U.S. is given operational control within an Agreed Location cannot be
equated with foreign military control, which is so abhorred by the Constitution.
The clear import of the provision is that in the absence of construction
activities, operational control over the Agreed Location is vested in the Philippine
authorities. This meaning is implicit in the specific grant of operational control
only during construction activities. The principle of constitutional construction,
“expressio unius est exclusio alterius,” means the failure to mention the thing
becomes the ground for inferring that it was deliberately excluded.403 Following
this construc-
_______________
401 EDCA, Art. III(4).
402 Id.
403 Sarmiento III v. Mison, supra note 177. The case also formulated this
principle as follows: “an express enumeration of subjects excludes others not
enumerated.”
460
460 SUPREME COURT REPORTS ANNOTATED
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404 Rebuttal of Commissioner Nolledo, supra note 362.
405 Vienna Convention on Diplomatic Relations, Arts. 31-40, 500 U.N.T.S. 95
(1961).
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Sovereignty is the possession of sovereign power,406 while jurisdiction is the
conferment by law of power and authority to apply the law.407 Article I of the 1987
Constitution states:
The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters
of the Philippines. (Emphasis supplied)

tion, since EDCA mentions the existence of U.S. operational control over the
Agreed Locations for construction activities, then it is quite logical to conclude that
it is not exercised over other activities.
Limited control does not violate the Constitution. The fear of the
commissioners was total control, to the point that the foreign military forces might
dictate the terms of their acts within the Philippines. 404 More important, limited
control does not mean an abdication or derogation of Philippine sovereignty and
legal jurisdiction over the Agreed Locations. It is more akin to the extension of
diplomatic courtesies and rights to diplomatic agents, 405which is a waiver of
control on a limited scale and subject to the terms of the treaty.
This point leads us to the second standard envisioned by the framers of the
Constitution: that the Philippines must retain sovereignty and jurisdiction over its
territory.
From the text of EDCA itself, Agreed Locations are territories of the
Philippines that the U.S. forces are allowed to access and use.408By withholding
ownership of these areas and retaining unrestricted access to them, the
government asserts sovereignty over its territory. That sovereignty exists so long
as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with
respect to the Agreed Locations.410 Hence, Philippine law remains in force therein,
and it cannot be said that jurisdiction has been transferred to the U.S. Even the
previously discussed necessary measures for operational control and defense over
U.S. forces must be coordinated with Philippine authorities.411
Jurisprudence bears out the fact that even under the former legal regime of
the MBA, Philippine laws continue to be
_______________

ii. Second standard: Philippine 406 See Black’s Law Dictionary, p. 1523 (9th ed., 2009).
sovereignty and applicable law 407 Id., at p. 927.
408 EDCA, Article I(1)(b).
EDCA states in its Preamble the “understanding for the United States not to 409 Laurel v. Misa, 77 Phil. 856 (1947).
establish a permanent military presence or base in the territory of the 410 EDCA, Art. VI(2).
Philippines.” Further on, it likewise states the recognition that “all United States 411 Id., Art. VI(3).
access to and use of facilities and areas will be at the invitation of the Philippines
and with full respect for the Philippine Constitution and Philippine laws.”
The sensitivity of EDCA provisions to the laws of the Philippines must be seen 462
in light of Philippine sovereignty and jurisdiction over the Agreed Locations. 462 SUPREME COURT REPORTS ANNOTATED
_______________
Saguisag vs. Ochoa, Jr.
 in force within the bases.412 The difference between then and now is that EDCA
retains the primary jurisdiction of the Philippines over the security of the Agreed
Locations, an important provision that gives it actual control over those locations.
Previously, it was the provost marshal of the U.S. who kept the peace and enforced
Philippine law in the bases. In this instance, Philippine forces act as peace officers,
in stark contrast to the 1947 MBA provisions on jurisdiction.413
iii. Third standard: must re-
spect national security and
territorial integrity
The last standard this Court must set is that the EDCA provisions on the
Agreed Locations must not impair or threaten the national security and territorial
integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of technology
has essentially rendered the prior notion of permanent military bases obsolete.
Moreover, military bases established within the territory of another state is no
longer viable because of the alternatives offered by new means and weapons of
warfare such as nuclear weapons, guided missiles as well as huge sea vessels that
can stay afloat in the sea even for months and years without returning to their
home country. These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities.
Besides, vessels are mobile as compared to a land-based military headquarters.414
_______________
412 Liwanag v. Hamill, 98 Phil. 437 (1956).
413 1947 MBA, Art. XIII.
414 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 23.
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The VFA serves as the basis for the entry of U.S. troops in a limited scope. It
does not allow, for instance, the reestablishment of the Subic military base or the
Clark Air Field as U.S. military reservations. In this context, therefore, this Court
has interpreted the restrictions on foreign bases, troops, or facilities as three
independent restrictions. In accord with this interpretation, each restriction must
have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a
military base is.415 While the source is not authoritative, petitioners make the
point that the Agreed Locations, by granting access and use to U.S. forces and
contractors, are U.S. bases under a different name.416 More important, they claim
that the Agreed Locations invite instances of attack on the Philippines from
enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the
realm of law, but of politics and policy. At the very least, we can say that under
international law, EDCA does not provide a legal basis for a justified attack on the
Philippines.
In the first place, international law disallows any attack on the Agreed
Locations simply because of the presence of U.S. personnel. Article 2(4) of the
United Nations Charter states that “All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”418 Any unlawful attack on
the Philippines breaches the treaty, and triggers Article 51 of the same charter,
which
_______________
415 Memorandum of Saguisag, p. 72, Rollo (G.R. No. 212426), p. 610.
416 Id.
417 Id.
418 Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI.
464
464 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
guarantees the inherent right of individual or collective self-defence.
Moreover, even if the lawfulness of the attack were not in question,
international humanitarian law standards prevent participants in an armed
conflict from targeting nonparticipants. International humanitarian law, which is
the branch of international law applicable to armed conflict, expressly limits
allowable military conduct exhibited by forces of a participant in an armed
conflict.419Under this legal regime, participants to an armed conflict are held to
specific standards of conduct that require them to distinguish between combatants
and noncombatants,420 as embodied by the Geneva Conventions and their
Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of international
law at the University of Leicester, noted that there is no legal consensus for what
constitutes a base, as opposed to other terms such as “facilities” or
“installation.”422 In strategic literature, “base” is defined as an installation
_______________
419 Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I),
1125 U.N.T.S. 3 (1977) [hereinafter Geneva Convention Additional Protocol I];
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125
U.N.T.S. 609 (1977).
420 Articles 48, 51(2) and 52(2), Protocol I, id.
421 1949 Geneva Convention (I) for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 U.N.T.S. 31;
1949 Geneva Convention (II) for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75
U.N.T.S. 85; 1949 Geneva Convention (III) Relative to the Treatment of Prisoners
of War, 12 August 1949, 75 U.N.T.S. 135; 1949 Geneva Convention (IV) Relative
to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 U.N.T.S.
287; id.
422 Woodcliffe, John, The Peacetime Use of Foreign Military Installations
Under Modern International Law, p. 30 (1992).
465
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“over which the user State has a right to exclusive control in an extraterritorial
sense.”423 Since this definition would exclude most foreign military installations, a
more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of “base” is
one that does not fulfill a combat role. He cites an example of the use of the
territory of a state for training purposes, such as to obtain experience in local
geography and climactic conditions or to carry out joint exercises. 424 Another
example given is an advanced communications technology installation for
purposes of information gathering and communication.425 Unsurprisingly, he
deems these noncombat uses as borderline situations that would be excluded from
the functional understanding of military bases and installations.426
By virtue of this ambiguity, the laws of war dictate that the status of a building
or person is presumed to be protected, unless proven otherwise. 427 Moreover, the
principle of distinction requires combatants in an armed conflict to distinguish
between lawful targets428 and protected targets.429 In an actual armed conflict
between the U.S. and a third state, the Agreed Locations cannot be considered U.S.
territory, since ownership of territory even in times of armed conflict does not
change.430
Hence, any armed attack by forces of a third state against an Agreed Location
can only be legitimate under interna-
_______________
423 Id.
424 Id., at p. 32.
425 Id.
426 Id.
427 Henckaerts, Jean-Marie and Ooswald-Beck, Louise, Customary
International Humanitarian Law-Volume I: Rules, pp. 34-36 (2005)
428 Art. 52, Protocol I, supra note 419.
429 Art. 48, id.
430 Art. 4, id.
466
466 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
tional humanitarian law if it is against a bona fide U.S. military base, facility,
or installation that directly contributes to the military effort of the U.S. Moreover,
the third state’s forces must take all measures to ensure that they have complied
with the principle of distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international
law that would ensure its territorial integrity and national security in the event
an Agreed Location is subjected to attack. As EDCA stands, it does not create the
situation so feared by petitioners — one in which the Philippines, while not
participating in an armed conflict, would be legitimately targeted by an enemy of
the U.S.431
In the second place, this is a policy question about the wisdom of allowing the
presence of U.S. personnel within our territory and is therefore outside the scope
of judicial review.
Evidently, the concept of giving foreign troops access to “agreed” locations,
areas, or facilities within the military base of another sovereign state is nothing
new on the international plane. In fact, this arrangement has been used as the
framework for several defense cooperation agreements, such as in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
_______________
431 Memorandum of Saguisag, pp. 66-70, Rollo (G.R. No. 212426), pp. 604-
608.
432 Article 11(6) thereof provides: “Agreed facilities and areas” means
the state owned facilities and areas in the territory of the Republic of Bulgaria
listed in Annex A, and such other state owned facilities and areas, as may be
mutually agreed by the Parties.
433 Article I(g) thereof provides: “Agreed facilities and locations” means
those sites, installations, and infrastructure to which the United States is
authorized access and use by Colombia in
467
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Saguisag vs. Ochoa, Jr.
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their
military bases.437 That access is without rental or similar costs to the
U.S.438 Further, U.S. forces are
_______________
 connection with activities carried out within the framework of this
Agreement.
434 Article 2(i) thereof provides: “Agreed facilities and areas” shall mean
areas, facilities, buildings or structures in the territory of the Republic of
Poland, owned by the Republic of Poland, and used by United States forces
with the consent of the Republic of Poland.
435 Article I thereof provides: “Agreed Facilities and Areas” means
the facilities and areas in the territory of Australia provided by Australia
which may be listed in Annex A appended to this Agreement, and such other
facilities and areas in the territory of Australia as may be provided by Australia
in the future, to which United States Forces, United States Contractors,
dependants, and other United States Government personnel as mutually agreed,
shall have the right to access and use pursuant to this Agreement.
436 Article I(7) thereof provides: “Agreed facilities and areas” means
the facilities and areas in the territory of Afghanistan provided by
Afghanistan at the locations listed in Annex A, and such other facilities and
areas in the territory of Afghanistan as may be provided by Afghanistan in the
future, to which United States forces, United States contractors, United States
contractor employees, and others as mutually agreed, shall have the right to
access and use pursuant to this Agreement.
437 US-Bulgaria Defense Cooperation Agreement, Arts. II(6) & IV(1); US-
Colombia Defense Cooperation Agreement, Art. IV; US-Poland Status of Forces
Agreement, Art. 3(2); US-Australia Force Posture Agreement, Arts. I, IV.
438 US-Bulgaria Defense Cooperation Agreement, Art. IV(5); US-Colombia
Defense Cooperation Agreement, Art. IV; US-Poland
468
468 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
allowed to undertake construction activities in, and make alterations and
improvements to, the agreed locations, facilities, or areas.439 As in EDCA, the host
states retain ownership and jurisdiction over the said bases.440
In fact, some of the host states in these agreements give specific military-
related rights to the U.S. For example, under Article IV(1) of the U.S.-Bulgaria
Defense Cooperation Agreement, “the United States forces x x x are authorized
access to and may use agreed facilities and areas x x x for staging and deploying
of forces and materiel, with the purpose of conducting x x x contingency operations
and other missions, including those undertaken in the framework of the North
Atlantic Treaty.” In some of these agreements, host countries allow U.S. forces to
construct facilities for the latter’s exclusive use.441
Troop billeting, including construction of temporary structures, is nothing new.
In Lim v. Executive Secretary, the Court already upheld the Terms of Reference
of Balikatan 02-1, which authorized U.S. forces to set up “[t]emporary structures
such as those for troop billeting, classroom instruction and messing x x x during
the Exercise.” Similar provisions are also in the Mutual Logistics Support
Agreement of 2002 and
_______________
Status of Forces Agreement, Art. 3(1); US-Australia Force Posture Agreement,
Art. IV(7).
439 US-Bulgaria Defense Cooperation Agreement, Art. IV(7); US-Colombia
Defense Cooperation Agreement, Arts. IV(7), XI; US-Poland Status of Forces
Agreement, Art. 3(6); US-Australia Force Posture Agreement, Art. IV(8).
440 US-Bulgaria Defense Cooperation Agreement, Arts. II(6), IV(1) & VI(1);
US-Colombia Defense Cooperation Agreement, Art. IV(6); US-Poland Status of
Forces Agreement, Art. 4(1); US-Australia Force Posture Agreement, Art. XIV(1).
441 US-Bulgaria Defense Cooperation Agreement, Art. IV(8); US-Colombia
Defense Cooperation Agreement, Art. IV(4); US-Poland Status of Forces
Agreement, Art. 3(10); US-Australia Force Posture Agreement, Art. X(2).
469
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2007, which are essentially executive agreements that implement the VFA, the
MDT, and the 1953 Military Assistance Agreement. These executive agreements
similarly tackle the “reciprocal provision of logistic support, supplies, and
services,”442 which include “[b]illeting, x x x operations support (and construction
and use of temporary structures incident to operations support), training services,
x x x storage services, x x x during an approved activity.”443 These logistic supplies,
support, and services include temporary use of “nonlethal items of military
equipment which are not designated as significant military equipment on the U.S.
Munitions List, during an approved activity.”444 The first Mutual Logistics
Support Agreement has lapsed, while the second one has been extended until 2017
without any formal objection before this Court from the Senate or any of its
members.
The provisions in EDCA dealing with Agreed Locations are analogous to those
in the aforementioned executive agreements. Instead of authorizing the building
of temporary structures as previous agreements have done, EDCA authorizes the
U.S. to build permanent structures or alter or improve existing ones for, and to be
owned by, the Philippines.445 EDCA is clear that the Philippines retains ownership
of altered or improved facilities and newly constructed permanent or non-
relocatable structures.446 Under EDCA, U.S. forces will also be allowed to use
facilities and areas for “training; x x x; support and related activities; x x x;
temporary accommodation of personnel; communications” and agreed activities.447
Concerns on national security problems that arise from foreign military
equipment being present in the Philippines must likewise be contextualized. Most
significantly, the VFA
_______________
442 2002 MLSA, Art. III(2); 2007 MLSA, Art. III(2).
443 Id., Art. IV(1)(a)(2); id., Art. IV(1)(a)(2).
444 Id., Art. IV(1)(a)(3); id., Art. IV(1)(a)(3).
445 EDCA, Art. V(1).
446 Id., Art. V(2).
 447 Id., Art. III(1).
470
470 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
already authorizes the presence of U.S. military equipment in the
country. Article VII of the VFA already authorizes the U.S. to import into or
acquire in the Philippines “equipment, materials, supplies, and other property”
that will be used “in connection with activities” contemplated therein. The same
section also recognizes that “[t]itle to such property shall remain” with the US and
that they have the discretion to “remove such property from the Philippines at any
time.”
There is nothing novel, either, in the EDCA provision on the prepositioning
and storing of “defense equipment, supplies, and materiel,”448 since these are
sanctioned in the VFA. In fact, the two countries have already entered into various
implementing agreements in the past that are comparable to the present one.
The Balikatan 02-1 Terms of Reference mentioned in Lim v. Executive
Secretary specifically recognizes that Philippine and U.S. forces “may share x x x
in the use of their resources, equipment and other assets.” Both the 2002 and 2007
Mutual Logistics Support Agreements speak of the provision of support and
services, including the “construction and use of temporary structures incident to
operations support” and “storage services” during approved activities.449 These
logistic supplies, support, and services include the “temporary use of x x x
nonlethal items of military equipment which are not designated as significant
military equipment on the U.S. Munitions List, during an approved
activity.”450 Those activities include “combined exercises and training, operations
and other deployments” and “cooperative efforts, such as humanitarian assistance,
disaster relief and rescue operations, and maritime anti-pollution operations”
within or outside Philippine territory.451 Under EDCA, the equipment, supplies,
and materiel that will be prepositioned at Agreed
_______________
448 Id., Art. IV(1).
449 2002 MLSA, Art. IV(1)(a)(2); 2007 MLSA, Art. IV(1)(a)(2).
450 Id., Art. IV(1)(a)(3); id., Art. IV(1)(a)(3).
451 Id., Art. III(1); id., Art. III(1).
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Locations include “humanitarian assistance and disaster relief equipment,
supplies, and materiel.”452 Nuclear weapons are specifically excluded from the
materiel that will be prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases the
threat to our national security. If anything, EDCA increases the likelihood that, in
an event requiring a defensive response, the Philippines will be prepared alongside
the U.S. to defend its islands and insure its territorial integrity pursuant to a
relationship built on the MDT and VFA.
8. Others issues and
concerns raised
A point was raised during the oral arguments that the language of the MDT
only refers to mutual help and defense in the Pacific area.453 We believe that any
discussion of the activities to be undertaken under EDCA vis-à-vis the defense of
areas beyond the Pacific is premature. We note that a proper petition on that issue
must be filed before we rule thereon. We also note that none of the petitions or
memoranda has attempted to discuss this issue, except only to theorize that the
U.S. will not come to our aid in the event of an attack outside of the Pacific. This
is a matter of policy and is beyond the scope of this judicial review.
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 telecommunica-
_______________
452 EDCA, Art. IV(1).
453 MDT, Arts. III, IV, and V.
472
472 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
tions services to the public for compensation.454 It is clear from Article VII(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.
Additionally, the charge that EDCA allows nuclear weapons within Philippine
territory is entirely speculative. It is noteworthy that the agreement in fact
specifies that the prepositioned materiel shall not include nuclear
weapons.455 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.456 The general prohibition on nuclear weapons,
whether prepositioned or not, is already expressed in the 1987 Constitution. 457 It
would be unnecessary or superfluous to include all prohibitions already in the
Constitution or in the law through a document like EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which under
the law must originate from Congress. This allegation ignores jurisprudence on
the government’s assumption of tax liability. EDCA simply states that the taxes
on the use of water, electricity, and public utilities are for the account of the
Philippine Government.458 This provision creates a situation in which a
contracting party assumes the tax liability of the other. 459 In National Power
Corporation v. Province of Quezon, we distinguished between enforceable and
unenforceable stipulations on the assumption of tax liability. Afterwards, we
concluded that an enforceable assumption of
_______________
454 Rollo, p. 464.
455 EDCA, Art. IV(6).
456 Rollo, pp. 34-35.
457 Article II, Sec. 8.
458 EDCA, Art. VII(1).
459 National Power Corporation v. Province of Quezon, 610 Phil. 456; 593
SCRA 47 (2009).
473
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Saguisag vs. Ochoa, Jr.
tax liability requires the party assuming the liability to have actual interest in
the property taxed.460 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.461 Hence, the provision on the assumption
of tax liability does not constitute a tax exemption as petitioners have posited.
Additional issues were raised by petitioners, all relating principally to
provisions already sufficiently addressed above. This Court takes this occasion to
emphasize that the agreement has been construed herein as to absolutely
disauthorize the violation of the Constitution or any applicable statute. On the
contrary, the applicability of Philippine law is explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously protested
by noted personalities in Philippine history arises not so much from xenophobia,
but from a genuine desire for self-determination, nationalism, and above all a
commitment to ensure the independence of the Philippine Republic from any
foreign domination.
Mere fears, however, cannot curtail the exercise by the President of the
Philippines of his Constitutional prerogatives in respect of foreign affairs. They
cannot cripple him when he deems that additional security measures are made
necessary by the times. As it stands, the Philippines through the Department of
Foreign Affairs has filed several diplomatic protests against the actions of the
People’s Republic of China in
_______________
460 Id.
461 EDCA, Art. III(6); Art. IV(2); Art. V(1, 4); Art. VIII(2).
474
474 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
the West Philippine Sea;462 initiated arbitration against that country under
the United Nations Convention on the Law of the Sea;463 is in the process of
negotiations with the Moro Islamic Liberation Front for peace in Southern
Philippines,464 which is the subject of a current case before this Court; and faces
increasing incidents of kidnappings of Filipinos and foreigners allegedly by the
Abu Sayyaf or the New People’s Army.465 The Philippine military is conducting
reforms that seek to ensure the security and safety of the nation in the years to
come.466 In the future, the Philippines must navigate a world in which armed
forces fight with increasing sophistication in both strategy and technology, while
employing asymmetric warfare and remote weapons.
_______________
462 Statement of Secretary Albert del Rosario before the Permanent Court of
Arbitration, Peace Palace, The Hague, Netherlands, 7 July 2015, Official Gazette,
available at <http://www.gov.ph/2015/07/07/statement-of-secretary-albert-del-
rosario-before-the-permanent-court-of-arbitration-peace-palace-the-hague-
netherlands/> (last visited 3 December 2015); Statement on Recent Incidents in the
Philippines’ Baja de Masinloc, 4 February 2015, Department of Foreign Affairs,
available at <http://www.dfa.gov.ph/index.php/newsroom/dfa-releases/5337-
statement-on-recent-incidents-in-the-philippines-bajo-de-masinloc> (last visited
21 October 2015).
463 The Republic of the Philippines v. The People’s Republic ofChina, Case No.
2013-19 (Perm Ct. Arb.) <http://www.pcacases.com/web/view/7> (last visited 13
October 2015).
464 Comprehensive Agreement on the Bangsamoro, Official Gazette, available
at <http://www.gov.ph/2014/03/27/document-cab> (last visited 21 October 2015).
465 Lim, Frinston, Authorities believe Abu Sayyaf behind abduction of
Filipina, 3 foreigners, 22 September 2015, Philippine Daily Inquirer, available at
<http://globalnation.inquirer.net/128739/authorities-believe-npa-behind-
abduction-of-filipina-foreigners> (last visited 3 December 2015).
466 Republic Act No. 10349 (2012); The Philippine Navy, Picture of the Future:
The Philippine Navy Briefer, available at
<http://www.navy.mil.ph/downloads/THE%20PHILIPPINE%20NAVY%20BRIEF
ER.pdf> (last visited 3 December 2015).
475
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Saguisag vs. Ochoa, Jr.
 Additionally, our country is fighting a most terrifying enemy: the backlash of Jardeleza, J., No part.
Mother Nature. The Philippines is one of the countries most directly affected and
damaged by climate change. It is no coincidence that the record-setting tropical SEPARATE CONCURRING OPINION
cyclone Yolanda (internationally named Haiyan), one of the most devastating
forces of nature the world has ever seen hit the Philippines on 8 November 2013 CARPIO, J.:
and killed at least 6,000 people.467 This necessitated a massive rehabilitation
project.468 In the aftermath, the U.S. military was among the first to extend help The threshold issue in this case is whether the Enhanced Defense Cooperation
and support to the Philippines. Agreement (EDCA) merely implements the existing and ratified 1951 Mutual
That calamity brought out the best in the Filipinos as thousands upon Defense Treaty1 (MDT), or whether the EDCA is a new treaty requiring Senate
thousands volunteered their help, their wealth, and their prayers to those affected. ratification to take effect.
It also brought to the fore the value of having friends in the international The answer to this question turns on whether, under present circumstances,
community. the attainment of the purpose of the MDT requires the EDCA. The fundamental
In order to keep the peace in its archipelago in this region of the world, and to rule in treaty interpretation is that a treaty must be interpreted “in the light of its
sustain itself at the same time against the destructive forces of nature, the object and purpose.”2
Philippines will need friends. Who they are, and what form the friendships will _______________
take, are for the President to decide. The only restriction is what the Constitution
itself expressly prohibits. It appears that this overarching concern for balancing 1 The Philippine Senate ratified the MDT on 12 May 1952 under Senate
constitutional requirements against the dictates of necessity was what led to Resolution No. 84.
EDCA. 2 Article 31 of the 1969 Vienna Convention on the Law of Treaties (Vienna
As it is, EDCA is not constitutionally infirm. As an executive agreement, it Convention) provides:
remains consistent with existing laws and treaties that it purports to implement.
WHEREFORE, we hereby DISMISS the petitions.
SO ORDERED. 477
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VOL. 779, JANUARY 12, 2016 477

467 Locsin, Joel, NDRRMC: Yolanda death toll hits 6,300 mark nearly 6 Saguisag vs. Ochoa, Jr.
months after typhoon, 17 April 2014, GMA News Online
<http://www.gmanetwork.com/news/story/357322/news/nation/ndrrmc-yolanda- As stated in the MDT, the purpose of the United States (U.S.) and the
death-toll-hits-6-300-mark-nearly-6-months-after-typhoon> (last accessed 3 Philippines in forging the MDT is to “declare publicly and formally their sense of
December 2015). unity and their common determination to defend themselves against external
468 Typhoon Yolanda, Official Gazette, available at armed attack.” If the MDT cannot attain this purpose without the EDCA, then the
<http://www.gov.ph/crisis-response/updates-typhoon-yolanda/> (last visited 3 EDCA merely implements the MDT and Executive action is sufficient to make the
December 2015). EDCA valid.
A ratified treaty like the MDT must be interpreted to allow the Executive to
take all necessary measures to insure that the treaty’s purpose is attained. A
476 ratified treaty cannot be interpreted to require a second ratified treaty to
implement the first ratified treaty, as a fundamental rule is that a treaty must be
476 SUPREME COURT REPORTS ANNOTATED
interpreted to avoid a “result which is manifestly absurd or unreasonable.” 3 This
Saguisag vs. Ochoa, Jr. is particularly true to a mu-
_______________
Velasco, Jr., Del Castillo, Villarama, Jr., Perez, Mendoza and Reyes, JJ.,
concur. Article 31
Carpio, J., See Separate Concurring Opinion. General rule of interpretation
Leonardo-De Castro, J., I dissent: See my Dissenting Opinion. 1. A treaty shall be interpreted in good faith in accordance with the ordinary
Brion, J., I dissent: See my Dissenting Opinion. meaning to be given to the terms of the treaty in their context and in the light of
Peralta, J., I join J. Carpio’s Opinion. its object and purpose.
Bersamin, J., I join the Separate Concurring Opinion of J. Carpio. 2. The context for the purpose of the interpretation of a treaty shall comprise,
Perlas-Bernabe, J., I join the Dissenting Opinions. in addition to the text, including its preamble and annexes:
Leonen, J., I dissent. See Separate Opinion. x x x. (Emphasis supplied)
 The Philippines acceded to the Vienna Convention on 15 November 1972.
3 Article 32 of the 1969 Vienna Convention on the Law of Treaties provides:
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of Article 31, or to determine
the meaning when the interpretation according to Article 31: (a) leaves the
meaning ambiguous or obscure; or (b) leads to a result which is manifestly
absurd or unreasonable. (Emphasis supplied)
478
478 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
tual defense treaty the purpose of which is mutual self-defense against sudden
armed attack by a third state.
However, if the MDT can attain its purpose without the EDCA, then the EDCA
is a separate treaty that requires Senate ratification. I shall discuss why, under
present circumstances, the EDCA is absolutely necessary and essential to attain
the purpose of the MDT.
With the departure in 1992 of U.S. military forces from Subic Naval Base and
Clark Air Base in Luzon, a power vacuum resulted in the South China Sea. As in
any power vacuum, the next power would rush in to fill the vacuum. Thus, China,
the next power after the U.S., filled the power vacuum in the South China Sea,
which includes the West Philippine Sea.4
In early 1995, barely three years after the departure of U.S. military forces
from the Philippines, China seized Mischief Reef from the Philippines. There was
no power to deter China as the U.S. forces had left. The Philippines did not
anticipate that China would rush in to fill the power vacuum, or if the Philippines
anticipated this, it did not upgrade its military to deter any Chinese aggression.
After China seized Mischief Reef in 1995, the Philippines still did not upgrade its
military, particularly its navy.
In 2012, China seized Scarborough Shoal from the Philippines, which could
offer no armed resistance to Chinese naval forces. The Scarborough Shoal seizure
finally made the Philippine Government realize that there was an absolute need
to deter China’s creeping invasion of Philippine islands, rocks and reefs in the West
Philippine Sea. Thus, the Philippines rushed the modernization of its navy and air
force. The Philippines also agreed with the U.S. to use the MDT to preposition U.S.
war materials in strategic locations in the Philip-
_______________
4 See Administrative Order No. 29, 5 September 2012.
479
VOL. 779, JANUARY 12, 2016 479
Saguisag vs. Ochoa, Jr.
pines, particularly in the islands of Palawan and Luzon facing the West
Philippine Sea.
In modern warfare, the successful implementation of a mutual defense treaty
requires the strategic prepositioning of war materials. Before the advent of guided
missiles and drones, wars could take months or even years to prosecute. There was
plenty of time to conscript and train soldiers, manufacture guns and artillery, and
ship war materials to strategic locations even after the war had started. Today,
wars could be won or lost in the first few weeks or even first few days after the
initial outbreak of war.
In modern warfare, the prepositioning of war materials, like mobile anti-ship
and anti-aircraft missiles, is absolutely necessary and essential to a successful
defense against armed aggression, particularly for a coastal state like the
Philippines. This is what the EDCA is all about — the prepositioning in strategic
locations of war materials to successfully resist any armed aggression. Such
prepositioning will also publicly telegraph to the enemy that any armed aggression
would be repelled. The enemy must know that we possess the capability, that is,
the war materials, to defend the country against armed aggression. Otherwise,
without such capability, we telegraph to the enemy that further seizure of
Philippine islands, rocks and reefs in the South China Sea would be a walk in the
park, just like China’s seizure of Mischief Reef and Scarborough Shoal. Without
such capability, we would practically be inviting the enemy to seize whatever
Philippine island, rock or reef it desires to seize in the West Philippine Sea.
Since 2014, China has started building artificial islands in the Spratlys out of
submerged areas like Mischief Reef and Subi Reef, or out of rocks that barely
protrude above water at high tide like Fiery Cross Reef. China has so far created
a 590-hectare artificial island in Mischief Reef which is only 125 nautical miles
(NM) from Palawan, well within the Philippines’ Exclusive Economic Zone (EEZ).
In comparison, San Juan City is 595 hectares in area. China has built a 390-
480
480 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
hectare artificial island in Subi Reef, outside the Philippines’ EEZ but within
its Extended Continental Shelf (ECS). China has created a 265-hectare artificial
island in Fiery Cross Reef, outside the Philippines’ EEZ but within its ECS.
China claims that its island-building activities are for civilian purposes but the
configuration of these artificial islands shows otherwise. The configuration of
China’s Mischief Reef island, which is China’s largest artificial island in the
Spratlys, is that of a combined air and naval base, with a 3,000meter airstrip.5 The
configuration of China’s Subi Reef island is that of a naval base with a 3,000-meter
airstrip. The configuration of China’s Fiery Cross Reef island is that of an airbase
with a 3,000-meter airstrip and a harbor for warships. These three air and naval
bases form a triangle in the Spratlys, surrounding the islands occupied by the
Philippines.
 Mischief Reef, located mid-way between Palawan and Pagasa, is ideally
situated to block Philippine ships resupplying Pagasa, the largest Philippine-
occupied island in the Spratlys. Mischief Reef is also close to the gas-rich Reed
Bank, the gas field that should replace Malampaya once Malampaya runs out of
gas in 10 to 12 years. Malampaya supplies 40% of the energy requirement of Luzon.
The Reed Bank and Malampaya are well within the Philippines’ EEZ. However,
China’s 9-dashed lines enclose entirely the Reed Bank and encroach partly on
Malampaya.
It is obvious that China will use the three air and naval bases in its artificial
islands to prevent Philippine ships and planes from resupplying Philippine-
occupied islands in the Spratlys, forcing the Philippines to abandon its occupied
islands. Already, Chinese coast guard vessels are preventing medium-sized
Philippine ships from resupplying the BRP Sierra Madre, the dilapidated
Philippine landing ship beached
_______________
5 A 3,000-meter airstrip is long enough for any military aircraft of China to
land and take off. A Boeing 747 airliner, or a B52 bomber, can easily land and take
off on a 3,000-meter airstrip.
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in Ayungin Shoal, just 20 NM from Mischief Reef. Only the Philippines’ use of
small watercrafts enables the resupply to the BRP Sierra Madre, which is manned
by about a dozen Philippine marine soldiers. The Philippines’ small watercrafts
can navigate the shallow waters of Ayungin Shoal while China’s large coast guard
vessels cannot.
With the anticipated installation by China of military facilities and war
materials in its three air and naval bases in the Spratlys, expected to be completed
before the end of 2016, China will begin to aggressively enforce its 9-dashed lines
claim over the South China Sea. Under this claim, China asserts sovereignty not
only to all the islands, rocks and reefs in the Spratlys, but also to 85.7% of the
South China Sea, comprising all the waters, fisheries, mineral resources, seabed
and submarine areas enclosed by the 9-dashed lines. Under this claim, the
Philippines will lose 381,000 square kilometers6 of its EEZ in the West Philippine
Sea, a maritime space larger than the total Philippine land area of 300,000 square
kilometers. China’s 9-dashed lines claim encroaches on all the traditional fishing
grounds of Filipino fishermen in the South China Sea: Scarborough Shoal,
Macclesfield Bank and the Spratlys.
The Philippines, acting by itself, cannot hope to deter militarily China from
enforcing its 9-dashed lines claim in the West Philippine Sea. The Philippines
cannot acquire war materials like anti-ship and anti-aircraft missiles off the shelf.
The operation of anti-ship missiles requires communications with airborne radar
or satellite guidance systems. With the completion of China’s air and naval bases
before the end of 2016, the Philippines has no time to acquire, install and operate
an anti-ship missile system on its own. Military and security analysts are
unanimous that there is only one
_______________
6 Final Transcript Day 1 — Merits Hearing, page 58, line 11, Philippines-
China Arbitration, http://www.pcacases.com/web/sendAttach/15487.
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482 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
power on earth that can deter militarily China from enforcing its 9-dashed
lines claim, and that power is the United States. This is why the MDT is utterly
crucial to the Philippines’ defense of its EEZ in the West Philippine Sea.
Of course, the United States has repeatedly stated that the MDT does not cover
the disputed islands, rocks and reefs in the South China Sea. We understand this
because at the time the MDT was signed the Philippine territory recognized by the
United States did not include the Kalayaan Island Group in the Spratlys. However,
the MDT provides that an armed attack on “public vessels or aircraft” (military or
coast guard ship or aircraft) of either the United States or the Philippines in the
Pacific area is one of the grounds for a party to invoke mutual defense under the
MDT.7 The United States has officially clarified that the Pacific area includes the
South China Sea.8
If China’s navy ships attack a Philippine military ship re-supplying Philippine-
occupied islands in the Spratlys, that will be covered by the MDT. However, unless
the U.S. and the Philippines have prepositioned anti-ship missiles in Palawan,
there will be no deterrence to China, and no swift response from U.S. and
Philippine forces. The absence of any deterrence will likely invite Chinese
harassment, or even armed attack, on Philippine resupply ships. That will lead to
the loss of all Philippine-occupied islands in the Spratlys, as well as the loss of the
gas-rich Reed Bank.
_______________
7 Article IV of the MDT provides: “Each Party recognizes that an armed attack
in the Pacific area on either of the Parties would be dangerous to its own peace and
safety and declares that it would act to meet the common dangers in accordance
with its constitutional processes. x x x.”
8 Letter of U.S. Secretary of State Cyrus Vance to Philippine Secretary of
Foreign Affairs Carlos P. Romulo dated 6 January 1979; Letter of U.S. Ambassador
to the Philippines Thomas C. Hubbard to Foreign Secretary Domingo L. Siazon
dated 24 May 1999.
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 The prepositioning of war materials is a necessary and essential element to
achieve the purpose of the MDT. Article II of the MDT expressly provides:
In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist
armed attack. (Emphasis supplied)
The prepositioning of war materials is the very essence of the phrase to
“maintain and develop (the Parties’) individual and collective capacity to
resist armed attack.” Without the prepositioning of war materials, a Party to the
MDT cannot maintain and develop the capacity to resist armed attack. Without
the prepositioning of war materials, a Party is simply and totally unprepared for
armed attack.
The 1987 Constitution defines the “national territory” to include not only
islands or rocks above water at high tide but also the seabed, subsoil and other
submarine areas “over which the Philippines has sovereignty or jurisdiction.”
Article 1 of the 1987 Constitution provides:
The national territory comprises the Philippine archipelago, with all
the islands and waters embraced therein, and all other territories over
which the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial, and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters
of the Philippines. (Emphasis supplied)
Thus, the Philippine “national territory” refers to areas over which the
Philippines has “sovereignty or jurisdiction.” The Constitution mandates: “The
State shall protect the nation’s marine wealth in its archipelagic waters, territorial
sea,
484
484 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
and exclusive economic zone, and reserve its use and enjoyment exclusively
to Filipino citizens.”9
Under both customary international law and the 1982 United Nations
Convention on the Law of the Sea (UNCLOS), the Philippines has “sovereign
rights” and “jurisdiction”10 to exploit exclusively all the living and nonliving
resources within its EEZ. Under the UNCLOS, the Philippines has the sovereign
rights to exploit exclusively the mineral resources
_______________
9 Section 2, Article XII of the 1987 Constitution. (Emphasis supplied)
10 Article 56 of UNCLOS provides:
Article 56
Rights, jurisdiction and duties of the coastal State
in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving
and managing the natural resources, whether living or nonliving, of the waters
superjacent to the seabed and of the seabed and its subsoil, and with regard to
other activities for the economic exploitation and exploration of the zone, such as
the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention
with regard to:
(i) the establishment and use of artificial islands, installations and
structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in
the exclusive economic zone, the coastal State shall have due regard to the rights
and duties of other States and shall act in a manner compatible with the provisions
of this Convention.
x x x x (Emphasis supplied)
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within its ECS.11 Under the UNCLOS, the Philippines also has sole
“jurisdiction” to create artificial islands or install structures within its EEZ12 and
ECS.13
_______________
11 Article 77 of the UNCLOS provides:
Article 77
Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf sovereign rights
for the purpose of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the sense that if the
coastal State does not explore the continental shelf or exploit its natural resources,
no one may undertake these activities without the express consent of the coastal
State.
3. The rights of the coastal State over the continental shelf do not depend on
occupation, effective or notional, or on any express proclamation.
4. The natural resources referred to in this Part consist of the mineral and
other nonliving resources of the seabed and subsoil together with living organisms
belonging to sedentary species, that is to say, organisms which, at the harvestable
stage, either are immobile on or under the seabed or are unable to move except in
constant physical contact with the seabed or the subsoil. (Emphasis supplied)
12 Article 60 of the UNCLOS provides:
Article 60
Artificial islands, installations and structures
in the exclusive economic zone
1. In the exclusive economic zone, the coastal State shall have the
exclusive right to construct and to authorize and regulate the
construction, operation and use of:
(a) artificial islands;
(b) installations and structures for the purposes provided for in Article 56 and
other economic purposes;
(c) installations and structures which may interfere with the exercise of the
rights of the coastal State in the zone.
2. The coastal State shall have exclusive jurisdiction over such
artificial islands, installations and structures, in-
485
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In short, under international law and in particular under the UNCLOS, the
Philippines has jurisdiction over its EEZ and ECS. Thus, under domestic law,
the Philippines’ EEZ and ECS form part of Philippine “national territory” since the
Constitution defines “national territory” to include areas over which the
Philippines has “jurisdiction,” a term which means less than sovereignty.
However, under international law, the Philippine “national territory” refers to the
areas over which the Philippines has sovereignty, referring to the Philippines’
land territory, archipelagic waters and territorial sea, excluding areas over which
the Philippines exercises only jurisdiction like its EEZ and ECS.
China has already invaded repeatedly Philippine “national territory” in two
separate areas, one in the Kalayaan Island Group in the Spratlys and the other in
Scarborough Shoal. When China seized in 1988 Subi Reef, a submerged area
within the Philippines’ ECS and beyond the territorial sea of any high tide
feature,14 China invaded Philippine national territory as defined in the
Constitution. When China seized in 1995 Mischief Reef, a submerged area within
the Philippines’ EEZ and beyond the territorial sea of any high tide
feature,15 China invaded Philippine national territory as defined in the
Constitution. When China seized in 2012 Scarborough Shoal, a
_______________
cluding jurisdiction with regard to customs, fiscal, health, safety and
immigration laws and regulations.
x x x x (Emphasis supplied)
13 Article 80 of the UNCLOS provides:
Article 80
Artificial islands, installations and structures
on the continental shelf
Article 60 applies mutatis mutandis to artificial islands, installations and
structures on the continental shelf.
14 Final Transcript Day 2 — Merits Hearing, page 23, lines 7, 8 and 9,
Philippines-China Arbitration, http://www.pcacases.com/web/
sendAttach/1548.
15 Id.
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rock above water at high tide and constituting land territory under
international law, China invaded Philippine national territory as defined in the
Constitution and as understood in international law. Republic Act No. 9522,
amending the Philippine Baselines Law, expressly declares that Scarborough
Shoal is part of Philippine territory over which the Philippines exercises
“sovereignty and jurisdiction.”16
After China’s seizure of Scarborough Shoal in 2012, the Philippines finally
woke up and summoned the political will to address the serial and creeping
Chinese invasion of Philippine national territory. Thus, the EDCA was born, to
give much needed teeth to the MDT as a deterrent to further Chinese aggression
in the West Philippine Sea. Without the EDCA, the MDT remains a toothless paper
tiger. With the EDCA, the MDT acquires a real and ready firepower to deter any
armed aggression against Philippine public vessels or aircrafts operating in the
West Philippine Sea.
With the EDCA, China will think twice before attacking Philippine military
resupply ships to Philippine-occupied islands in the Spratlys. With the EDCA, the
Philippines will have a fighting chance to hold on to Philippine-occupied islands in
the Spratlys. With the EDCA, China will think twice before attacking Philippine
navy and coast guard vessels patrolling the West Philippine Sea. This will give the
Philippines a fighting chance to ward off China’s impending en-
_______________
16 Section 2 of RA No. 9522 provides: “The baseline in the following areas over
which the Philippines likewise exercises sovereignty and jurisdiction shall be
determined as ‘Regime of Islands’ under the Republic of the Philippines consistent
with Article 121 of the United Nations Convention on the Law of the Sea
(UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596; and
b) Bajo de Masinloc, also known as Scarborough Shoal.” (Emphasis
supplied)
 488
488 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
forcement of its 9-dashed lines as China’s “national boundaries” as shown in
its 2013 official vertical map.17
The number and sites of the “agreed locations” to place the prepositioned war
materials must necessarily remain numerous and anonymous. The “agreed
locations” must be numerous enough to survive repeated or surprise armed
attacks. There must not only be redundant “agreed locations” but also dummy
“agreed locations” to mislead the enemy. The sites of many of the “agreed locations”
cannot be disclosed publicly because that will give the enemy the fixed coordinates
of the “agreed locations,” making them easy targets of long-range enemy cruise
missiles. The number and sites of the “agreed locations” are matters best left to
the sound discretion of the Executive, who is the implementing authority of the
MDT for the Philippines.
The implementation of the MDT is a purely Executive function since the
Senate has already ratified the MDT. The implementation of the MDT is also part
of the purely Executive function of the President as Commander-in-Chief of the
Armed Forces. As executor and “chief architect”18 of the country’s relations with
foreign countries, including our treaty ally the United States, the President is
constitutionally vested with ample discretion in the implementation of the MDT.
EDCA, being essentially and entirely an implementation of the MDT, is within the
sole authority of the President to enter into as an executive agreement with the
U.S.
Article VIII of the MDT provides: “This Treaty shall remain in force
indefinitely. Either party may terminate it one year after notice is given to the
other Party.” Neither the Philippines nor the United States has terminated the
MDT. On the
_______________
17 In its Note Verbale of 7 June 2013 to China, the Philippines stated it
“strongly objects to the indication that the nine-dash lines are China’s
national boundaries in the West Philippine Sea/South China Sea.”
(Emphasis supplied)
18 Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303; 462 SCRA
622 (2005).
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contrary, the 1998 Visiting Forces Agreement between the Philippines and the
United States, which the Philippine Senate has ratified, expressly states that the
parties are “[r]eaffirming their obligations under the Mutual Defense Treaty of
August 30, 1951.” Thus, the continued validity and relevance of the MDT cannot
be denied.
Moreover, the Senate ratification of the MDT complies with the requirement
of Section 25, Article XVII19 of the 1987 Constitution that any agreement allowing
foreign military facilities in the Philippines, like the prepositioning of U.S. war
materials, must be embodied in a treaty and ratified by two-thirds vote20 of the
Senate. That treaty is the MDT which the Philippine Senate ratified by two-thirds
vote on 12 May 195221 and which the U.S. Senate ratified on 20 March 1952.22
_______________
19 Section 25, Article XVIII of the 1987 Constitution provides: “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.” (Emphasis
supplied)
20 Section 21, Article VII of the 1987 Constitution provides: “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.” (Emphasis supplied)
21 The 1935 Constitution, under which the MDT was ratified, also required
ratification of treaties by two-thirds vote of the Senate. Section 10(7), Article VII
of the 1935 Constitution provides: “The President shall have the power, with the
concurrence of two-thirds of all the Members of the Senate, to make
treaties, and with the consent of the Commission on Appointments, he shall
appoint ambassadors, other public ministers; and consuls. He shall receive
ambassadors and other public ministers duly accredited to the Government of the
Philippines.” (Emphasis supplied)
22 See footnote 7, Nicolas v. Romulo, 598 Phil. 262; 578 SCRA 438 (2009).
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490 SUPREME COURT REPORTS ANNOTATED
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In summary, the EDCA is absolutely necessary and essential to implement the
purpose of the MDT, which on the part of the Philippines, given the existing
situation in the West Philippine Sea, is to deter or repel any armed attack on
Philippine territory or on any Philippine public vessel or aircraft operating in the
West Philippine Sea. To hold that the EDCA cannot take effect without Senate
ratification is to render the MDT, our sole mutual self-defense treaty, totally
inutile to meet the grave, even existentialist,23 national security threat that the
Philippines is now facing in the West Philippine Sea.
China has already invaded several geologic features comprising part
of Philippine “national territory” as defined in the Constitution. The
territorial integrity of the Philippines has been violated openly and repeatedly.
The President, as Commander-in-Chief of the Armed Forces, “chief architect” of
foreign policy and implementer of the MDT, has decided on the urgent need to
fortify Philippine military defenses by prepositioning war materials of our treaty
ally on Philippine soil. This Court should not erect roadblocks to the President’s
implementation of the MDT, particularly since time is of the essence and the
President’s act of entering into the EDCA on his own does not violate any provision
of the Constitution.
A final word. The EDCA does not detract from the legal arbitration case that
the Philippines has filed against China under UNCLOS. The EDCA brings into
the Philippine strategy the element of credible self-defense. Having refused to
participate in the legal arbitration despite being obligated to do so under UNCLOS,
China is now using brute force to assert its claim to almost the entire South China
Sea. Given
_______________
23 China’s successful control of the South China Sea will force the Philippines
to share a 1,300-kilometer sea border with China, from Balabac Island in Palawan
to Yamin Island in Batanes, very close to the Philippine coastline facing the South
China Sea. This will bring the Philippines into China’s orbit, with the Philippines
adhering to China’s positions on matters involving foreign policy.
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this situation, the proper equation in defending the Philippines’ maritime
zones in the West Philippine Sea is “legal right plus credible self-defense equals
might.”
Accordingly, I vote to DISMISS the petitions on the ground that the EDCA
merely implements, and in fact is absolutely necessary and essential to the
implementation of, the MDT, an existing treaty that has been ratified by the
Senate.
CONCURRING AND DISSENTING OPINION
LEONARDO-DE CASTRO, J.:
“The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not imposed by
itself. Any restriction upon it, deriving validity from an external source,
would imply a diminution of its sovereignty to the extent of the restriction,
and an investment of that sovereignty to the same extent in that power
which could impose such restriction.” x x x.1
I concur with the disposition of the procedural issues but not with the
arguments and conclusions reached as to the substantive issues.
The focus of the present controversy, as mentioned by the Honorable Chief
Justice is the application of Section 25, Article XVIII of the Constitution which
reads:
ARTICLE XVIII
TRANSITORY PROVISIONS
SEC. 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and
_______________
1 The Schooner Exchange v. McFaddon and Others, 3 Law. ed., 287, 293; cited
in Dizon v. Commanding General of the Phil. Ryukus Command, U.S. Army, 81
Phil. 286, 292 (1948).
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492 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
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.
Section 25, Article XVIII bans foreign military bases, troops, or facilities in
Philippine territory, unless the following requisites are complied with: (1) the
presence of foreign military bases, troops, or facilities should be allowed by
a treaty; (2) the treaty must be duly concurred in by the Philippine
Senate and, when Congress so requires, such treaty should be ratified by a
majority of the votes cast by the Filipino people in a national referendum held for
that purpose; and (3) such treaty should be recognized as a treaty by the other
contracting party.2
Couched in negative terms, Section 25, Article XVIII embodies a prohibition:
“foreign military bases, troops, or facilities shall not be allowed in the
Philippines,” unless the requisites in the said section are met.
In BAYAN v. Zamora,3 the Court held that Section 25, Article XVIII covers
three different situations: a treaty allowing the presence within the Philippines of
(a) foreign military bases, or (b) foreign military troops, or (c) foreign military
facilities, such that a treaty that involves any of these three standing alone falls
within the coverage of the said provision.
BAYAN v. Zamora likewise expounded on the coverage of the two provisions of
the Constitution — Section 21, Article VII and Section 25, Article XVIII — which
both require Senate concurrence in treaties and international agreements. The
Court stated:
_______________
2 BAYAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 654-655;
342 SCRA 449, 486 (2000).
3 Id., at p. 653; p. 482.

493
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Section 21, Article VII deals with treaties or international agreements
in general, in which case, the concurrence 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 treaties 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 treaties 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.
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, the concurrence 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.
xxxx
Moreover, it is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the reason that there is no
permanent placing of structure for the establishment of a military base. On
this score, the Constitution makes no distinction between “transient” and
“permanent.” Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently in
the Philippines.
It is a rudiment in legal hermeneutics that when no distinction is made
by law the Court should not distin-
_______________
2 BAYAN (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 654-655;
342 SCRA 449, 486 (2000).
3 Id., at p. 653; p. 482.
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494 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
guish — Ubi lex non distinguit nec nos distinguire debemos.
In like manner, 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. Notably, a perusal of
said constitutional provision reveals that the proscription covers ‘‘foreign
military bases, troops, or facilities.” Stated differently, this prohibition is
not limited to the entry of troops and facilities without any foreign bases
being established. 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) foreign troops, or (c) foreign facilities — any of
the three standing alone places it under the coverage of Section 25, Article
XVIII.
To this end, the intention of the framers of the Charter, as manifested
during the deliberations of the 1986 Constitutional Commission, is
consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to
Commissioner Bernas. This formulation speaks of three things: foreign
military bases, troops or facilities. My first question is: If the country does
enter into such kind of a treaty, must it cover the three-bases, troops or
facilities or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only
one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter
into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
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MR. MAAMBONG. I cannot find any reason why the government can
enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little
bit more, we will find some. We just want to cover everything.4 (Citations
omitted)
Furthermore, the wording of Section 25, Article XVIII also provides an
indubitable implication: foreign military bases, troops and facilities have
ceased to be allowed in the Philippines after the expiration in 1991 of the
Military Bases Agreement; thereafter, the same can only be reallowed
upon the satisfaction of all the three requirements set forth in the Section
25, Article XVIII.
The legal consequence of the above provision with respect to the Military Bases
Agreement (March 14, 1947), the Mutual Defense Treaty (August 30, 1951), the
Visiting Forces Agreement (February 10, 1998), and the Enhanced Defense 1. The Government of the Republic of the Philippines (hereinafter referred to
Cooperation Agreement ([EDCA] April 28, 2014) can be appreciated by an as the Philippines) grants to the Government of the United States of America
examination of the respective rights and obligations of the parties in these (hereinafter referred to as the United States) the right to retain the use of the
agreements. bases in the Philippines listed in Annex A attached hereto.
2. The Philippines agrees to permit the United States, upon notice to the
Effect of Section 25, Article XVIII Philippines, to use such of those bases listed in Annex B as the United States
of the Constitution on the Military determines to be required by military necessity.
Bases Agreement, the Mutual De- 3. The Philippines agrees to enter into negotiations with the United States at
fense Treaty, the Visiting Forces the latter’s request, to permit the United States to expand such bases, to exchange
Agreement, and the Enhanced such bases for other bases, to acquire additional bases, or relinquish rights to
Defense Cooperation Agreement bases, as any of such exigencies may be required by military necessity.

On July 4, 1946, the United States recognized the independence of the Republic
of the Philippines, thereby apparently relinquishing any claim of sovereignty
thereto. However, on March 14, 1947, the Philippines and the United
_______________
4 Id., at pp. 650-654; pp. 482-485.
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States entered into a Military Bases Agreement (MBA) which granted to the
United States government the right to retain5 the use of the bases listed in the
Annexes of said agreement.6 Within said bases, the United States was granted
_______________
5 The Court explained in Nicolas v. Romulo (598 Phil. 262, 279-280; 578 SCRA
438, 456 [2009]) that:
“[U]nder the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United
States agreed to cede to the Philippines all the territory it acquired from Spain
under the Treaty of Paris, plus a few islands later added to its realm, except certain
naval ports and/or military bases and facilities, which the United States retained
for itself.
This is noteworthy, because what this means is that Clark and Subic and the
other places in the Philippines covered by the RP-US Military Bases Agreement of
1947 were not Philippine territory, as they were excluded from the cession and
retained by the US.
xxxx
Subsequently, the United States agreed to turn over these bases to the
Philippines; and with the expiration of the RP-US Military Bases Agreement in
1991, the territory covered by these bases were finally ceded to the Philippines.”
6 Military Bases Agreement (March 14, 1947), Article I, which provides:
Article I
GRANT OF BASES
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“the rights, power and authority within the bases which are necessary for the
establishment, use, operation and defense thereof or appropriate for the control
thereof and all the rights, power and authority within the limits of territorial
waters and air space adjacent to, or in the vicinity of, the bases which are necessary
to provide access to them, or appropriate for their control.” 7 The term of the
original agreement was “for a period of ninety-nine years subject to extension
thereafter as agreed by the two Governments.”8 In 1966, the parties entered into
the Ramos-Rusk Agreement, which reduced the term of the Military Bases
Agreement to 25 years from 1966, or until 1991.
On August 30, 1951, the Philippines and the United States entered into
the Mutual Defense Treaty (MDT), whereby the parties recognized that “an
armed attack in the Pacific area on either of the Parties would be dangerous to its
own peace and safety and declares that it would act to meet the common dangers
in accordance with its constitutional process.”9 The treaty provided that it “shall
remain in force indefi-
_______________
4. A narrative description of the boundaries of the bases to which this
Agreement relates is given in Annex A and Annex B. An exact description of the
bases listed in Annex A, with metes and bounds, in conformity with the narrative
descriptions, will be agreed upon between the appropriate authorities of the two
Governments as soon as possible. With respect to any of the bases listed in Annex
B, an exact description with metes and bounds, in conformity with the narrative
description of such bases, will be agreed upon if and when such bases are acquired
by the United States.
7 Id., Article III(1).
8 Id., Article XXIX.
9 Articles IV and V of the Mutual Defense Treaty (August 30, 1951) provides:
ARTICLE IV
 Each Party recognizes that an armed attack in the Pacific Area on either of the
Parties would be dangerous to its own peace and safety and declares that it would
act to meet the common dangers in accordance with its constitutional process.
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nitely,” although either party “may terminate it one year after notice has been
given to the other Party.”10 It bears pointing out that there is no explicit provision
in the MDT which authorized the presence in the Philippines of military bases,
troops, or facilities of the United States.
In 1986, during the early stages of the deliberations of the Constitutional
Commission, and in view of the impending expiration of the MBA in 1991, the
members of the Commission expressed their concern that the continued presence
of foreign military bases in the country would amount to a derogation of national
sovereignty. The pertinent portion of the deliberations leading to the adoption of
the present Section 25, Article XVIII is quoted as follows:
FR. BERNAS. My question is: Is it the position of the committee that
the presence of foreign military bases in the country under any
circumstances is a derogation of national sovereignty?
MR. AZCUNA. It is difficult to imagine a situation based on existing
facts where it would not. However, in the abstract, it is possible that it
would not be that much of a derogation. I have in mind, Madam President,
the argument that has been presented. Is that the reason why there are
U.S. bases in England, in Spain and in Turkey? And it is not being claimed
that their sover-
_______________
Any such armed attack and all measures taken as a result thereof shall be
immediately reported to the Security Council of the United Nations. Such
measures shall be terminated when the Security Council has taken the measures
necessary to restore and maintain international peace and security.
ARTICLE V
For the purpose of Article IV, an armed attack on either of the Parties is
deemed to include an armed attack on the metropolitan territory of either of the
Parties, or on the island territories under its jurisdiction in the Pacific or on its
armed forces, public vessels or aircraft in the Pacific.
10 Id., Article VIII.
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eignty is being derogated. Our situation is different from theirs because
we did not lease or rent these bases to the U.S. The U.S. retained them from
us as a colonial power.
FR. BERNAS. So, the second sentence, Madam President, has specific
reference to what obtains now.
MR. AZCUNA. Yes. It is really determined by the present situation.
FR. BERNAS. Does the first sentence tolerate a situation radically
different from what obtains now? In other words, if we understand
sovereignty as auto-limitation, as a people’s power to give up certain goods
in order to obtain something which may be more valuable, would it be
possible under this first sentence for the nation to negotiate some kind of a
treaty agreement that would not derogate against sovereignty?
MR. AZCUNA. Yes. For example, Madam President, if it is negotiated
on a basis of true sovereign equality, such as a mutual ASEAN defense
agreement wherein an ASEAN force is created and this ASEAN force is a
foreign military force and may have a basis in the member ASEAN
countries, this kind of a situation, I think, would not derogate from
sovereignty.
MR. NOLLEDO. Madam President, may I be permitted to make a
comment on that beautiful question. I think there will be no derogation of
sovereignty if the existence of the military bases as stated by Commissioner
Azcuna is on the basis of a treaty which was not only ratified by the
appropriate body, like the Congress, but also by the people.
I would like also to refer to the situation in Turkey where the Turkish
government has control over the bases in Turkey, where the jurisdiction of
Turkey is not impaired in anyway, and Turkey retains the right to
terminate the treaty under circumstances determined by the host
government. I think under such circumstances, the existence of the military
bases may not be considered a derogation of sovereignty, Madam President.
FR. BERNAS. Let me be concrete, Madam President, in our
circumstances. Suppose they were to
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have this situation where our government were to negotiate a
treaty with the United States, and then the two executive
departments in the ordinary course of negotiation come to an
agreement. As our Constitution is taking shape now, if this is to be
a treaty at all, it will have to be submitted to our Senate for its
ratification. Suppose, therefore, that what was agreed upon
between the United States and the executive department of the
Philippines is submitted and ratified by the Senate, then it is
further submitted to the people for its ratification and
subsequently, we ask the United States: “Complete the process by
accepting it as a treaty through ratification by your Senate as the
 United States Constitution requires,” would such an arrangement or for the United States armed forces upon approval of the Government of the
be in derogation of sovereignty? Philippines, in accordance with international
MR. NOLLEDO. Under the circumstances the Commissioner just _______________
mentioned, Madam President, on the basis of the provision of
Section 1 that “sovereignty resides in the Filipino people,” then we 13 Visiting Forces Agreement (February 10, 1998), Article III.
would not consider that a derogation of our sovereignty on the 14 Id., Article I.
basis and expectation that there was a plebiscite.11 (Emphasis 15 Id., Article VII.
supplied) 16 Id.

As a safeguard against the derogation of national sovereignty, the present form

of Section 25, Article XVIII was finalized by the Commission and ratified by the 502
Filipino people in 1987.
502 SUPREME COURT REPORTS ANNOTATED
On September 16, 1991, the Senate rejected the proposed Treaty of Friendship,
Cooperation and Security, which would have extended the presence of US military Saguisag vs. Ochoa, Jr.
bases in the Philippines. Nevertheless, the defense and security relationship
between the Philippines and the United States continued in accordance with the custom and practice and such agreed implementing arrangements as
MDT.12 necessary.17
_______________ The VFA also provided for the jurisdiction over criminal and disciplinary cases
over United States personnel with respect to offences committed within the
11 IV Record of the Constitutional Commission, pp. 661-662. Philippines.18
12 Supra note 2. The VFA further stated that the same shall remain in force until the expiration
of 180 days from the date on which either party gives the other party notice in
writing that it desires to terminate the agreement.19
501 Subsequently, the constitutionality of the VFA was questioned before the
Court in the aforementioned October 10, 2000 case of BAYAN v. Zamora,20 and
VOL. 779, JANUARY 12, 2016 501
again in the case of Nicolas v. Romulo.21 In both cases, the Court held that Section
Saguisag vs. Ochoa, Jr. 25, Article XVIII of the Constitution is applicable, but the requirements thereof
were nevertheless complied with. In Nicolas, however, the implementing Romulo-
Upon the expiration of the MBA in 1991, Section 25, Article XVIII came into Kenney Agreements of December 19 and 22, 2006 concerning the custody of Lance
effect. The presence of foreign military bases, troops or facilities in the country can Corporal Daniel J. Smith, who was charged with the crime of rape, were declared
only be allowed upon the satisfaction of all three requirements set forth in Section not in accordance with the VFA.
25, Article XVIII. Thereafter, on April 28, 2014, the governments of the Philippines and the
On February 10, 1998, the Philippines and the United States entered into the United States entered into the assailed EDCA.
Visiting Forces Agreement (VFA), which required the Philippines to facilitate the
admission of United States personnel,13 a term defined in the same treaty as The EDCA
“United States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine Government.”14 Under the EDCA, the Philippines by mutual agreement with the United
United States Government equipment, materials, supplies, and other property States, shall provide the United States forces the access and use of portions of
imported into the Philippines in connection with activities to which the VFA Philippine territory. United States forces are “the entity comprising United States
applies, while not expressly stated to be allowed into the Philippines by the personnel and all property, equipment, and materiel of the United States Armed
provisions of the VFA, were nevertheless declared to be free from Philippine duties, Forces present in the territory of the
taxes and similar charges. Title thereto was also declared to remain with the _______________
United States.15
The VFA expressly allowed the importation into the Philippines of reasonable 17 Id., Article VIII.
quantities of personal baggage, personal effects, and other property for the 18 Id., Article V.
personal use of United States personnel.16 The VFA likewise expressly allowed the 19 Id., Article IX.
entry into the Philippines of (1) aircraft operated by or for the United States armed 20 Supra note 2.
forces upon approval of the Government of the Philippines in accordance with 21 Supra note 5.
procedures stipulated in implementing arrangements; and (2) vessels operated by

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Philippines.” These portions of Philippine territory that will be made available
to the US are called “Agreed Locations,” which is a new concept defined under
Article II(4) of the EDCA as:
4. “Agreed Locations” means facilities and areas that are provided by
the Government of the Philippines through the AFP and that the United
States forces,22 United States contractors, and others as mutually agreed,
shall have the right to access and use pursuant to this Agreement. Such
Agreed Locations may be listed in an annex to be appended to this
Agreement, and may further be described in implementing arrangements.
(Emphasis supplied)
Aside from the right to access and to use the Agreed Locations, the United
States may undertake the following types of activities within the Agreed Locations:
security cooperation exercises; joint and combined training activities;
humanitarian and disaster relief activities; and such other activities that as may
be agreed upon by the Parties.”23 Article III(1) of the EDCA further states in detail
the activities that the United States may conduct inside the Agreed Locations:
1. With consideration of the views of the Parties, the Philippines
hereby authorizes and agrees that United States forces, United States
contractors, and vehicles, vessels, and aircrafts operated by or for United
States forces may conduct the following activities with respect to Agreed
Locations: training; transit; support and related activities; refueling
of aircraft; bunkering of vessels; temporary maintenance of
vehicles, vessels, and aircraft; temporary accommodation of
personnel; communications; prepositioning of
_______________
22 “United States forces” means the entity comprising United States
personnel and all property, equipment and materiel of the United States Armed
Forces present in the territory of the Philippines. [Enhanced Defense Cooperation
Agreement, Article II(2)]
23 Enhanced Defense Cooperation Agreement, Article I(3).
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equipment, supplies, and materiel; deploying forces and materiel; and
such other activities as the Parties may agree. (Emphasis supplied)
The United States may access and use the Agreed Locations without any
obligation on its part to pay any rent or similar costs.24
In addition to the right to access and to use the Agreed Locations and to
conduct various activities therein, the United States, upon request to the
Philippines’ Designated Authorities,25 can further temporarily access public land
and facilities (including roads, ports, and airfields), including those owned or
controlled by local governments, and to other land and facilities (including roads,
ports, and airfields).26
The United States is also granted operational control of Agreed Locations to do
construction activities, make alterations or improvements of the Agreed
Locations.27 All buildings, non-relocatable structures, and assemblies affixed to
the land in the Agreed Locations, including [those] altered or improved by United
States forces, remain the property of the Philippines. Permanent buildings
constructed by the United States forces become the property of the Philippines,
once constructed, but shall be used by the United States forces until no longer
required.28
Incidental to the access and use of the Agreed Locations, the US is granted the
use of water, electricity and other pub-
_______________
24 Id., Article III(3).
25 Id., Article II(5) states:
5. “Designated Authorities” means, respectively, the Philippine Department
of National Defense, unless the Philippines otherwise provides written notice to
the United States, and the United States Department of Defense, unless the
United States otherwise provides written notice to the Philippines.
26 Id., Article III(2).
27 Id., Article III(4).
28 Id., Article V(4).
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lic utilities,29 as well as the use of the radio spectrum in relation to the
operation of its own telecommunications system.30
As to the management of the Agreed Locations, the United States forces are
authorized to exercise an rights and authorities within the Agreed Locations that
are necessary for their operational control or defense, including taking appropriate
measures to protect United States forces and United States contractors. The
United States should coordinate such measures with appropriate authorities of the
Philippines.31
The United States is authorized to preposition and store defense equipment,
supplies, and materiel (“prepositioned materiel”), including but not limited to,
humanitarian assistance and disaster relief equipment, supplies and material, at
Agreed Locations.32 The prepositioned materiel of the United States forces shall be
for the exclusive use of United States forces, and full title to all such equipment,
supplies and materiel remains with the United States. 33United States forces and
United States contractors34 shall have unimpeded access to Agreed Locations for
all matters relating to the prepositioning and storage of defense equipment,
supplies, and materiel, including delivery, management, inspection, use,
maintenance, and removal of such equipment, supplies and materiel. 35 The United
States forces and United States contractors shall retain title to all equipment,
materiel, supplies, relocat-
_______________
29 Id., Article VII(1).
30 Id., Article VII(2).
31 Id., Article VI(3).
32 Id., Article IV(1).
33 Id., Article IV(3).
34 Id., Article II defines United States contractors as:
3. “United States contractors” means companies and firms, and their
employees, under contract or subcontract to or on behalf of the United States
Department of Defense. United States contractors are not included as part of the
definition of United States personnel in this Agreement, including within the
context of the VFA.
35 Id., Article IV(4).
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able structures, and other movable property that have been imported into or
acquired within the territory of the Philippines by or on behalf of United States
forces.36
Considering the presence of US armed forces: military personnel, vehicles,
vessels, and aircrafts and other defensive equipment, supplies, and materiel in the
Philippines, for obvious military purposes and with the obvious intention of
assigning or stationing them within the Agreed Locations, said Agreed Locations,
for all intents and purposes, are considered military bases and fall squarely under
the definition of a military base under Section 2, Presidential Decree No. 1227,
otherwise known as “Punishing Unlawful Entry into Any Military Base in the
Philippines,” which states:
SECTION 2. The term “military base” as used in this decree
means any military, air, naval, or coast guard reservation, base,
fort, camp, arsenal, yard, station, or installation in the Philippines.
(Emphasis supplied)
In the same vein, Article XXVI of the 1947 RP-US Military Bases Agreement
(MBA) defined a military base as “areas named in Annex A and Annex B and such
additional areas as may be acquired for military purposes pursuant to the terms
of this Agreement.”37
_______________
36 Id., Article V(3).
37 Annexes A and B referred to under the MBA included the following military
bases in the Philippines, namely: Clark Field Air Base, Pampanga; Mariveles
Military Reservation, POL Terminal and Training Area, Bataan; Camp John Hay
Leave and Recreation Center, Baguio; Subic Bay, Northwest Shore Naval Base,
Zambales Province, and the existing Naval reservation at Olongapo and the
existing Baguio Naval Reservation; Cañacao-Sangley Point Navy Base, Cavite
Province; Mactan Island Army and Navy Air Base; Florida Blanca Air Base,
Pampanga; Camp Wallace, San Fernando, La Union; and Aparri Naval Air Base,
among others. (Military Bases Agreement [March 14, 1947])
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Saguisag vs. Ochoa, Jr.
Considering further that the United States armed forces stationed in the
Philippines, as well as their relocatable structures, equipment and materiel are
owned, maintained, controlled, and operated by the United States within
Philippine territory, these Agreed Locations are clearly overseas military bases of
the US with RP as its host country.
The EDCA provided for an initial term of ten years, which thereafter shall
continue in force automatically, unless terminated by either party by giving one
year’s written notice through diplomatic channels of its intention to terminate the
agreement.38
Interestingly, the EDCA has similar provisions found in the 1947 MBA:
_______________
38 Enhanced Defense Cooperation Agreement, Article XII(4).
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508 SUPREME COURT REPORTS ANNOTATED
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510
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The EDCA is not a mere
implementing agreement
of the MDT or the VFA
As can be seen in the above table of comparison, these EDCA provisions
establishes military areas similar to that in the Military Bases
Agreement, and for that reason alone, the EDCA is far greater in scope than both
the Mutual Defense Treaty and the Visiting Forces Agreement. The EDCA is not
a mere implementing agreement of either the MDT or the VFA.
The EDCA is an international agreement that allows the presence in
the Philippines of foreign military
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Saguisag vs. Ochoa, Jr.
bases, troops and facilities, and thus requires that the three requisites
under Section 25, Article XVIII be complied with. The EDCA must be submitted to
the Senate for concurrence.
The majority opinion posits, inter alia, that the President may enter into
an executive agreement on foreign military bases, troops, or facilities if: (a) it
“is not the principal agreement that first allowed their entry or presence
in the Philippines,” or (b) it merely aims to implement an existing law or treaty.
Likewise, the President alone had the choice to enter into the EDCA by way of an
executive agreement or a treaty. Also, the majority suggests that executive
agreements may cover the matter of foreign military forces if it involves detail
adjustments of previously existing international agreements.
The above arguments fail to consider that Section 25, Article XVIII of the
Constitution covers three distinct and mutually independent situations: the
presence of foreign military bases or troops or facilities. The grant of entry to
foreign military troops does not necessarily allow the establishment of military
bases or facilities.39
Generally, the parties to an international agreement are given the freedom to
choose the form of their agreement.
International agreements may be in the form of: (1) treaties, which require
legislative concurrence after executive ratification; or (2) executive agreements,
which are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject
matters than treaties. Under Article 2 of the Vienna Convention on the Law of
Treaties, a treaty is defined as an international agreement concluded between
states in written form and governed by international law, whether
_______________
39 Supra note 2 at p. 653; p. 484.
512
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embodied in a single instrument or in two or more related instruments and
whatever its particular designation.40
In the 1961 case of Commissioner of Customs v. Eastern Sea Trading,41 the
Court had occasion to state that “[i]nternational agreements involving political
issues or changes of national policy and those involving international
arrangements of a permanent character usually take the form of treaties. But
international agreements embodying adjustments of detail carrying out well-
established national policies and traditions and those involving arrangements of a
more or less temporary nature usually take the form of executive agreements.
In the more recent case of Bayan Muna v. Romulo,42 the Court expounded on
the above pronouncement in this wise:
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast in
stone. There are no hard and fast rules on the propriety of entering,
on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration
in the choice of the form of agreement is the parties’ intent and
desire to craft an international agreement in the form they so wish
to further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt
servanda principle.
As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct of
foreign affairs has become more complex and the domain of international
law wider, as to include such subjects as human rights,
_______________
40 Id., at p. 657; pp. 488-489.
41 113 Phil. 333, 338; 3 SCRA 351, 356 (1961).
42 656 Phil. 246, 271-272; 641 SCRA 244, 260-262 (2011).
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 Saguisag vs. Ochoa, Jr.
the environment, and the sea. x x x Surely, the enumeration in Eastern
Sea Trading cannot circumscribe the option of each state on the matter of
which the international agreement format would be convenient to serve its
best interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to
time. Hundreds of executive agreements, other than those entered
into under the trade agreement act, have been negotiated with
foreign governments. x x x. They cover such subjects as the
inspection of vessels, navigation dues, income tax on shipping
profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal
matters, the registration of trademarks and copyrights, etc. x x x.
(Citations omitted)
However, it must be emphasized that while in the above case, the Court called
attention to “one type of executive agreement which is a treaty-authorized or
a treaty-implementing executive agreement, which necessarily would cover the
same matter subject of the underlying treaty,” still, the Court cited the special
situation covered by Section 25, Article XVIII of the Constitution which explicitly
prescribes the form of the international agreement. The Court stated:
But over and above the foregoing considerations is the fact that — save
for the situation and matters contemplated in Sec. 25, Art. XVIII of
the Constitution — when a treaty is required, the Constitution does
not classify any subject, like that involving political issues, to be in the form
of, and ratified as, a treaty. What the Constitution merely prescribes is that
treaties need the concurrence of the Senate by a vote defined
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therein to complete the ratification process.43 (Emphasis supplied,
citation omitted)
Clearly, the Court had since ruled that when the situation and matters
contemplated in Sec. 25, Article XVIII obtains, i.e., when the subject matter of an
international agreement involves the presence of foreign military bases, troops or
facilities, a treaty is required and that the same must be submitted to the Senate
for the latter’s concurrence. In BAYAN v. Zamora,44 the Court held that Section
25, Article XVIII, like Section 21, Article VII, embodies a phrase in the
negative, i.e., “shall not be allowed” and therefore, the concurrence of the Senate
is indispensable to render the treaty or international agreement valid and
effective.
What the majority did is to carve out exceptions to Section 25, Article XVIII
when none is called for.
As previously discussed, the language of Section 25, Article XVIII is clear and
unambiguous. The cardinal rule is that the plain, clear and unambiguous language
of the Constitution should be construed as such and should not be given a
construction that changes its meaning.45 The Court also enunciated in Chavez v.
Judicial and Bar Council46 that:
The Constitution evinces the direct action of the Filipino people by
which the fundamental powers of government are established, limited and
defined and by which those powers are distributed among the several
departments for their safe and useful exercise for the benefit of the body
politic. The Framers reposed their wisdom and vision on one suprema lex to
be the ultimate expression of the principles and the framework upon
_______________
43 Id., at p. 273; pp. 262-263.
44 Supra note 2.
45 Soriano III v. Lista, 447 Phil. 566, 570; 399 SCRA 437, 440-441 (2003).
46 G.R. No. 202242, April 16, 2013, 696 SCRA 496, 507-508.
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which government and society were to operate. Thus, in the
interpretation of the constitutional provisions, the Court firmly relies on
the basic postulate that the Framers mean what they say. The language
used in the Constitution must be taken to have been deliberately
chosen for a definite purpose. Every word employed in the
Constitution must be interpreted to exude its deliberate intent
which must be maintained inviolate against disobedience and
defiance. What the Constitution clearly says, according to its text,
compels acceptance and bars modification even by the branch
tasked to interpret it. (Emphasis supplied; citation omitted)
The majority opinion posits that the EDCA is consistent with the content,
purpose and framework of the MDT and the VFA. As such, the majority argues
that the EDCA may be in the form of an executive agreement as it merely
implements the provisions of the MDT and the VFA.
I disagree. Compared closely with the provisions of the MDT and the VFA, the
EDCA transcends in scope and substance the subject matters covered by the
aforementioned treaties. Otherwise stated, the EDCA is an entirely new
agreement unto itself.
The MDT in relation to the EDCA
 We noted in Lim v. Executive Secretary47 that the MDT has been described as
the “core” of the defense relationship between the Philippines and its traditional
ally, the United States. The aim of the treaty is to enhance the strategic and
technological capabilities of our armed forces through joint training with its
American counterparts.
As explicitly pronounced in its declaration of policies, the MDT was entered
into between the Philippines and the
_______________
47 430 Phil. 555, 571-572; 380 SCRA 739, 752 (2002).
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United States in order to actualize their desire “to declare publicly and
formally their sense of unity and their common determination to defend
themselves against external armed attack”48 and “further to strengthen their
present efforts to collective defense for the preservation of peace and security
pending the development of a more comprehensive system of regional security in
the Pacific area.”49
Under Article II of the MDT, the parties undertook “separately and jointly by
self-help and mutual aid” to “maintain and develop their individual and collective
capacity to resist armed attack.”50Article III thereof states that the parties to the
treaty shall “consult together from time to time regarding the implementation of
[the] Treaty and whenever in the opinion of either of them the territorial integrity,
political independence or security of either of the Parties is threatened by external
armed attack in the Pacific.”51
Moreover, Article IV states that the individual parties to the treaty “recognizes
that an armed attack in the Pacific area on either of the Parties would be
dangerous to its own peace and safety and declares that it would act to meet the
common dangers in accordance with its constitutional process.”52 This
provision highlights the need for each party to follow their respective
constitutional processes and, therefore, the MDT is not a self-executing agreement.
It follows that if the Philippines aims to implement the MDT in the manner that
the majority opinion suggests, such implementation must adhere to the mandate
of Section 25, Article XVIII of the Constitution.
Also, under the above article, the parties are thereafter obligated to
immediately report to the Security Council of the
_______________
48 Mutual Defense Treaty, Preamble, paragraph 3.
49 Id., Preamble, paragraph 4.
50 Id., Article II.
51 Id., Article III.
52 Id., Article IV, first paragraph.
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United Nations the occurrence of any such armed attack and all the measures
taken as result thereof. Said measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain international
peace and security.53Article V of the treaty explained that “an armed attack on
either of the Parties is deemed to include an armed attack on the metropolitan
territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific or on its armed forces, public vessels or
aircraft in the Pacific.”54
Under Article VIII of the treaty, the parties agreed that the treaty shall remain
in force indefinitely and that either party may terminate it one year after notice
has been given to the other party.55
Clear from the foregoing provisions is that the thrust of the MDT pertains to
the furtherance of the avowed purpose of the parties thereto of maintaining and
developing their individual and collective capacity to resist external armed
attack only in the metropolitan territory of either party or in their island
territories in the Pacific Ocean. Accordingly, the territories of the parties
other than those mentioned are not covered by the MDT.
Conspicuously absent from the MDT are specific provisions regarding the
presence in Philippine territory — whether permanent or temporary — of foreign
military bases, troops, or facilities. The MDT did not contemplate the presence of
foreign military bases, troops or facilities in our country in view of the fact that it
was already expressly covered by the MBA that was earlier entered into by the
Philippines and the United States in 1947. Moreover, the MDT contains no
delegation of power to the President to enter into an agreement relative to the
establishment of foreign military bases, troops,
_______________
53 Id., Article IV, second paragraph.
54 Id., Article V.
55 Id., Article VII.
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Saguisag vs. Ochoa, Jr.
or facilities in our country. The MDT cannot also be treated as allowing an
exception to the requirements of Section 25, Article XVIII of the Constitution,
which took effect in 1987. As explained above, the reference to constitutional
processes of either party in the MDT renders it obligatory that the Philippines
follow Section 25, Article XVIII of the Constitution.
 Indeed, the MDT covers defensive measures to counter an armed attack between American and Philippine military forces in the event of an attack
against either of the parties’ territories or armed forces but there is nothing in the by a common foe.
MDT that specifically authorizes the presence, whether temporary or permanent,
of a party’s bases, troops, or facilities in the other party’s territory even during To a certain degree, the VFA is already an amplification of the MDT in that it
peace time or in mere anticipation of an armed attack. allows the presence of visiting foreign troops for cooperative activities in peace
On the other hand, the very clear-cut focal point of the EDCA is the authority time. Thus, in line with the mandate of Section 25, Article XVIII of the Constitu-
granted to the United States forces and contractors to have unimpeded access to _______________
so-called Agreed Locations — which can be anywhere in the Philippines — and to
build there military facilities and use the same to undertake various military 56 Supra note 2 at p. 652; p. 483.
activities. The very wording of the EDCA shows that it undoubtedly deals with the 57 Lim v. Executive Secretary, supra note 47 at p. 572; p. 752.
presence of foreign military bases, troops, and facilities in Philippine territory.
Thus, contrary to the posturing of the majority, the presence of foreign military
bases, troops, or facilities provided under the EDCA cannot be traced to the MDT. 520
Moreover, the general provisions of the MDT cannot prevail over the categorical
520 SUPREME COURT REPORTS ANNOTATED
and specific provision of Section 25, Article XVIII of the Constitution.
As will be further highlighted in the succeeding discussion, the EDCA creates Saguisag vs. Ochoa, Jr.
new rights, privileges and obligations between the parties thereto.
tion, the VFA is embodied in a treaty concurred in by the Senate.
The VFA in relation to the EDCA In particular, the coverage of the VFA is as follows:
1) The admission of United States personnel and their departure from
With respect to the VFA, the EDCA likewise surpasses the provisions of the Philippines in connection with activities covered by the agreement, and the grant
said former treaty. of exemption to United States personnel from passport and visa regulations upon
entering and departing from the Philippines;58
2) The validity of the driver’s license or permit issued by the United States,
519 thus giving United States personnel the authority to operate military or official
VOL. 779, JANUARY 12, 2016 519 vehicles within the Philippines;59
3) The rights of the Philippines and the United States in matters of criminal
Saguisag vs. Ochoa, Jr. jurisdiction over United States personnel who commit offenses within the
Philippine territory and punishable under Philippine laws;60
The VFA primarily deals with the subject of allowing elements of the United 4) The importation and exportation of equipment, materials, supplies and
States armed forces to visit the Philippines from time to time for the purpose of other property, by United States personnel free from Philippine duties, taxes and
conducting activities, approved by the Philippine government, in line with the similar charges;61
promotion and protection of the common security interests of both countries. 5) The movement of United States aircrafts, vessels and vehicles within
In the case of BAYAN v. Zamora,56 the Court ruled that the VFA “defines the Philippine territory;62 and
treatment of United States troops and personnel visiting the Philippines,” 6) The duration and termination of the agreement.63
“provides for the guidelines to govern such visits of military personnel,” and
“defines the rights of the United States and the Philippine government in the In contrast, the EDCA specifically deals with the following matters:
matter of criminal jurisdiction, movement of vessel and aircraft, importation and _______________
exportation of equipment, materials and supplies.”
We likewise reiterated in Lim v. Executive Secretary,57 that: 58 Visiting Forces Agreement, Article III.
59 Id., Article IV.
The VFA provides the “regulatory mechanism” by which “United States 60 Id., Article V.
military and civilian personnel [may visit] temporarily in the 61 Id., Article VII.
Philippines in connection with activities approved by the Philippine 62 Id., Article VIII.
Government.” It contains provisions relative to entry and departure of 63 Id., Article IX.
American personnel, driving and vehicle registration, criminal jurisdiction,
claims, importation and exportation, movement of vessels and aircraft, as
well as the duration of the agreement and its termination. It is the VFA 521
which gives continued relevance to the MDT despite the passage of years.
VOL. 779, JANUARY 12, 2016 521
Its primary goal is to facilitate the promotion of optimal cooperation
 Saguisag vs. Ochoa, Jr.
1) The authority of the United States forces to access facilities and areas,
termed as “Agreed Locations,” and the activities that may be allowed therein; 64
2) The grant to the United States of operational control of Agreed Locations to
do construction activities and make alterations or improvements thereon; 65
3) The conditional access to the Agreed Locations of the Philippine Designated
Authority and its authorized representative;66
4) The storage and prepositioning of defense equipment, supplies and materiel,
as well as the unimpeded access granted to the United States contractors to the
Agreed Locations in matters regarding the prepositioning, storage, delivery,
management, inspection, use, maintenance and removal of the defense equipment,
supplies, and materiel; and the prohibition that the preposition materiel shall not
include nuclear weapons;67
5) a) The ownership of the Agreed Locations by the Philippines, b) the
ownership of the equipment, materiel, supplies, relocatable structures and other
moveable property imported or acquired by the United States, c) the ownership
and use of the buildings, non-relocatable structures, and assemblies affixed to the
land inside the Agreed Locations;68
6) The cooperation between the parties in taking measures to ensure
protection, safety and security of United States forces, contractors and information
in Philippine territory; the primary responsibility of the
_______________
64 Enhanced Defense Cooperation Agreement, Article II.
65 Id., Article III(4).
66 Id., Article III(5).
67 Id., Article IV.
68 Id., Article V.
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522 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Philippines to secure the Agreed Locations, and the right of the United States
to exercise all rights and authorities within the Agreed Locations that are
necessary for their operational control or defense;69
7) The use of water, electricity and other public utilities;70
8) The use of the radio spectrum in connection with the operation of a
telecommunications system by the United States;71
9) The authority granted to the of the United States to contract for any
materiel, supplies, equipment, and services (including construction) to be
furnished or undertaken inside Philippine territory;72
10) The protection of the environment and human health and safety, and the
observance of Philippine laws on environment and health, and the prohibition
against the intentional release of hazardous waste by the United States and the
containment of thereof in case a spill occurs;73
11) The need to execute implementing arrangements to address details
concerning the presence of United States forces at the Agreed Locations and the
functional relations between the United States forces and the AFP with respect to
the Agreed Locations;74 and
12) The resolution of disputes arising from the EDCA through consultation
between the parties.75
_______________
69 Id., Article VI.
70 Id., Article VII(1).
71 Id., Article VII(2).
72 Id., Article VIII.
73 Id., Article IX.
74 Id., Article X.
75 Id., Article XI.
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Initially, what is abundantly clear with the foregoing enumeration is that the
EDCA is an entirely new creation. The provisions of the EDCA are not found in or
have no corresponding provisions in the VFA. They cover entirely different subject
matters and they create new and distinct rights and obligations on the part of the
Philippines and the United States.
Furthermore, as to the nature of the presence of foreign military troops in this
country, the VFA is explicit in its characterization that it is an agreement between
the governments of the Philippines and the United States regarding the treatment
of United States Armed Forces visiting the Philippines. The Preamble of the VFA
likewise expressly provides that, “noting that from time to time elements of the
United States armed forces may visit the Republic of the Philippines”76 and
“recognizing the desirability of defining the treatment of United States
personnel visiting the Republic of the Philippines”77 the parties to the VFA
agreed to enter into the said treaty. The use of the word visit is very telling. In its
ordinary usage, to visit is to “stay temporarily with (someone) or at (a place) as a
guest or tourist” or to “go to see (someone or something) for a specific
purpose.”78 Thus, the word visit implies the temporariness or impermanence of the
presence at a specific location.
On the other hand, under the EDCA, United States forces and United States
contractors are permitted to stay in the Agreed Locations to undertake military
activities therein without any clear limitation as to the duration of their
stay. Moreover, they are given unimpeded access to Agreed Locations to conduct
different activities that definitely were not contemplated under the VFA.
_______________
 76 Visiting Forces Agreement, Preamble, third paragraph.
77 Id., fifth paragraph.
78 http://www.oxforddictionaries.com/us/definition/american_english/visit.
Accessed on December 14, 2015, 5:30 PM.
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The Court’s ruling in Lim v. Executive Secretary79 provides some insights as to
the scope of activities germane to the intention of the VFA. Thus:
The first question that should be addressed is whether “Balikatan 02-
1” is covered by the Visiting Forces Agreement. To resolve this, it is
necessary to refer to the VFA itself. Not much help can be had therefrom,
unfortunately, since the terminology employed is itself the source of the
problem. The VFA permits United States personnel to engage, on an
impermanent basis, in “activities,” the exact meaning of which was left
undefined. The expression is ambiguous, permitting a wide scope of
undertakings subject only to the approval of the Philippine government.
The sole encumbrance placed on its definition is couched in the negative, in
that United States personnel must “abstain from any activity inconsistent
with the spirit of this agreement, and in particular, from any political
activity.” All other activities, in other words, are fair game.
xxxx
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word “activities” arose from accident. In
our view, it was deliberately made that way to give both parties a certain
leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint
exercises may include training on new techniques of patrol and surveillance
to protect the nation’s marine resources, sea search-and-rescue operations
to assist vessels in distress, disaster relief operations, civic action projects
such as the building of school houses, medical and humanitarian missions,
and the like.
Under these auspices, the VFA gives legitimacy to the
current Balikatan exercises. It is only logical to assume that “Balikatan 02-
1,” a “mutual anti-terrorism ad-
_______________
79 Lim v. Executive Secretary, supra note 47 at pp. 572-575; pp. 752-755.
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Saguisag vs. Ochoa, Jr.
vising, assisting and training exercise,” falls under the umbrella of
sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA
support the conclusion that combat-related activities — as opposed
to combat itself — such as the one subject of the instant petition,
are indeed authorized. (Emphases supplied, citations omitted)
The above discussion clearly shows that the VFA was intended for noncombat
activities only.
In the instant case, the OSG averred that the entry of the United States forces
into the Agreed Location is borne out of “military necessity.”80 Military necessity
means the necessity attending belligerent military operations that is held to justify
all measures necessary to bring an enemy to complete submission excluding those
(as cruelty, torture, poison, perfidy, wanton destruction) that are forbidden by
modern laws and customs of war.81
In the instant case, some of the activities that the United States forces will
undertake within the Agreed Locations such as prepositioning of defense
equipment, supplies and materiel, and deploying of forces and materiel are actual
military measures supposedly put into place in anticipation of battle. To
preposition means “to place military units, equipment, or supplies at or near the
point of planned use or at a designated location to reduce reaction time, and to
ensure timely support of a specific force during initial phases of an operation.”82 On
the other hand, materiel is defined as “all items necessary to equip, operate,
maintain, and support military activities without distinction as to its application
for administrative or
_______________
80 Rollo (G.R. No. 212444), p. 481.
81 Webster’s Third New International Dictionary [1993].
82 http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on December
11, 2015, 11:48 AM.
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526 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
combat purposes.”83 Also, to deploy means “to place or arrange (armed forces)
in battle disposition or formation or in locations appropriate for their future
employment.”84 Deployment also means “the rotation of forces into and out of an
operational area.”85
The EDCA likewise allows the construction of permanent buildings, which the
United States forces can utilize until such time that they no longer need the use
thereof. The construction of permanent buildings, including the alteration or
improvement by the United States of existing buildings, structures and assemblies
affixed to the land, are certainly necessary not only for the accommodation of its
troops, bunkering of vessels, maintenance of its vehicles, but also the creation of
the proper facilities for the storage and prepositioning of its defense materiel. This
grant of authority to construct new buildings and the improvement of existing
buildings inside the Agreed Locations — which buildings are to be used
indefinitely — further evinces the permanent nature of the stay of United States
forces and contractors in this country under the EDCA. This is a far cry from the
temporary visits of United States armed forces contemplated in the VFA.
Moreover, aside from agreements that the Philippines and the United States
may subsequently enter into with respect to the access of the United States forces
in the Agreed Locations on a “rotational basis,”86 and other activities that the
United States may conduct therein,87 the EDCA also contains provisions requiring
the execution of further “implementing arrangements” with regard to description
of the Agreed Loca-
_______________
83 http://www.dtic.mil/doctrine/new_pubs/jp4_0.pdf. Accessed on December
11, 2015, 11:48 AM.
84 Webster’s Third New International Dictionary [1993].
85 http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf. Accessed on December
11, 2015, 12:36 PM.
86 Enhanced Defense Cooperation Agreement, Article I(1)(b).
87 Id., Article III(1).
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tions,88 “[funding] for construction, development, operation and maintenance
costs at the Agreed Locations,”89 and “additional details concerning the presence
of the United States forces at the Agreed Locations and the functional relations
between the United States forces and the AFP with respect to Agreed Locations.”90
Article II(4) of the EDCA states that the Agreed Locations shall be provided by
the Philippine Government through the AFP. What is readily apparent from
said article is that the AFP is given a broad discretion to enter into agreements
with the United States with respect to the Agreed Locations. The grant of such
discretion to the AFP is without any guideline, limitation, or standard as to the
size, area, location, boundaries and even the number of Agreed Locations to be
provided to the United States forces. As there is no sufficient standard in the
EDCA itself, and no means to determine the limits of authority granted, the AFP
can exercise unfettered power that may have grave implications on national
security. The intervention of the Senate through the constitutionally ordained
treaty-making process in defining the new national policy concerning United
States access to Agreed Locations enunciated in the EDCA, which has never been
before expressly or impliedly authorized, is imperative and indispensible for
the validity and effectivity of the EDCA.
The above distinctions between the EDCA and the VFA, therefore, negate the
OSG’s argument that the EDCA merely involves “adjustments in detail” of the
VFA. To my mind, the EDCA is the general framework for the access and use of
the Agreed Locations by the United States forces and contractors rather than an
implementing instrument of both the MDT and the VFA.
_______________
88 Id., Article II(4).
89 Id., Article III(6).
90 Id., Article X(3).
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528 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
As stated above, Section 25, Article XVIII contemplates three different
situations: a treaty concerning the allowance within the Philippines of (a) foreign
military bases, (b) foreign military troops, or (c) foreign military facilities, such
that a treaty that involves any of these three standing alone would fall within the
coverage of the said provision. The VFA clearly contemplates only visits of foreign
military troops.
The VFA, which allows the presence of the units of the United States military
troops, cannot by any stretch of the imagination include any arrangement that
practically allows the establishment of United States military bases or facilities in
the so-called Agreed Locations under the EDCA. Thus, the EDCA goes far-beyond
the arrangement contemplated by the VFA and therefore it necessarily requires
Senate concurrence as mandated by Section 25, Article XVIII of the Constitution.
In the same vein, the initial entry of United States troops under the VFA cannot,
as postulated by the ponencia, justify a “treaty-authorized” presence under the
EDCA, since the presence contemplated in the EDCA also pertains to the
establishment of foreign military bases or facilities, and not merely visiting troops.
The argument that the entry of the United States bases, troops and facilities
under the EDCA is already allowed in view of the “initial entry” of United States
troops under the VFA glaringly ignores that the entry of visiting foreign military
troops is distinct and separate from the presence or establishment of foreign
military bases or facilities in the country under Section 25, Article XVIII of the
Constitution.
To reiterate, the EDCA is entirely a new treaty, separate and distinct from the
VFA and the MDT. Hence, it must satisfy the requirements under Section 25,
Article XVIII of the Constitution. The Senate itself issued Resolution No. 105 on
November 10, 2015, whereby it expressed its “definite stand on the non-negotiable
power of the Senate to decide whether a treaty will be valid and effective depending
on the Senate concurrence” and resolved “that the RP-US EDCA [is a] treaty
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Saguisag vs. Ochoa, Jr.
[that] requires Senate concurrence in order to be valid and effective.”
 Incidentally, with respect to the VFA, there is a difference of opinion whether
or not the same is an implementing agreement of the MDT, as the latter does not
confer authority upon the United States President (or the Philippine President) to
enter into an executive agreement to implement said treaties. Still, in Nicolas v.
Romulo,91 the Court noted that even if the VFA was treated as an implementing
agreement of the MDT, the VFA was submitted to the Senate for concurrence.
By no means should this opinion be construed as one questioning the
President’s intention and effort to protect our national territory and security.
However, in the case of Tawang Multi-Purpose Cooperative v. La Trinidad Water
District,92 the Court said:
There is no “reasonable and legitimate” ground to violate the
Constitution. The Constitution should never be violated by anyone. Right
or wrong, the President, Congress, the Court, x x x have no choice but to
follow the Constitution. Any act, however noble its intentions, is void
if it violates the Constitution. This rule is basic.
In Social Justice Society, the Court held that, “In the discharge of their
defined functions, the three departments of government have no choice but
to yield obedience to the commands of the Constitution. Whatever limits it
imposes must be observed.” In Sabio, the Court held that, “the Constitution
is the highest law of the land. It is ‘the basic and paramount law to which
x x x all persons, including the highest officials of the land, must defer. No
act shall be valid, however noble its intentions,
_______________
91 Chief Justice Reynato S. Puno and Justice Carpio submitted stirring
dissenting opinions which assail the constitutionality of the VFA on its being
unenforceable due to the absence of ratification by the US Senate.
92 661 Phil. 390, 406; 646 SCRA 21, 39-40 (2011).
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530 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
if it conflicts with the Constitution.’” In Bengzon v. Drilon,the Court
held that, “the three branches of government must discharge their
respective functions within the limits of authority conferred by the
Constitution.” In Mutuc v. Commission on Elections, the Court held that,
“The three departments of government in the discharge of the
functions with which it is [sic] entrusted have no choice but to
yield obedience to [the Constitution’s] commands. Whatever limits
it imposes must be observed.” (Emphases supplied, citations omitted)
A final word. While it is true that the Philippines cannot stand alone and will
need friends within and beyond this region of the world, still we cannot offend our
Constitution and bargain away our sovereignty.
Accordingly, I vote to grant the consolidated petitions.
DISSENTING OPINION
BRION, J.:
Before this Court is the constitutionality of the Enhanced Defense Cooperation
Agreement (EDCA), an executive agreement with the United States of America
(U.S.) that the Executive Department entered into and ratified on June 6, 2014.1
This case is not an easy one to resolve for many reasons — the stakes involved
in light of contemporary history, the limited reach of judicial inquiry, the limits of
the Court’s own legal competence in fully acting on petitions before it, and the plain
and clear terms of our Constitution. While the petitions, the comments, and
the ponencia all extensively dwell on constitutional, statutory, and international
law, the constitutional challenge cannot be resolved based solely on our con-
_______________
1 Instrument of Ratification, Annex A of the Memorandum of OSG, Rollo, p.
476. [Per p. 318 of ponencia, to verify from Rollo]
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Saguisag vs. Ochoa, Jr.
sideration of the Constitution nor through the prism of Philippine national
interest considerations, both expressed and those left unspoken in these cases. In
our globalized world where Philippine interests have long been intersecting with
those of others in the world, the country’s externalities — the international and
regional situations and conditions — must as well be considered as operating
background from where the Philippines must determine where its national
interests lie.
From the practical point of view of these externalities and the violation of
Philippine territorial sovereignty that some of us have expressed, a quick decision
may immediately suggest itself — let us do away with all stops and do what
we must to protect our sovereignty and national integrity.
What renders this kind of resolution difficult to undertake is the violation of
our own Constitution — the express manifestation of the collective will of the
Filipino people — that may transpire if we simply embrace the proffered easy
solutions. Our history tells us that we cannot simply turn a blind eye to our
Constitution without compromising the very same interests that we as a nation
want to protect through a decision that looks only at the immediate practical view.
To lightly regard our Constitution now as we did in the past, is to open the way to
future weightier transgressions that may ultimately be at the expense of the
Filipino people.
It is with these thoughts that this Opinion has been written: I hope to consider
all the interests involved and thereby achieve a result that balances the immediate
with the long view of the concerns besetting the nation.
 I am mindful, of course, that the required actions that would actively serve our
national interests depend, to a large extent, on the political departments of
government — the Executive and, to some extent, the Legislature.2 The Judiciary
has only one assigned role — to ensure that the Constitution
_______________
2 Constitution, Article VII, Section 21; Article XVIII, Section 25.
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532 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
is followed and, in this manner, ensure that the Filipino people’s larger
interests, as expressed in the Constitution, are protected. 3Small though this
contribution may be, let those of us from the Judiciary do our part and be counted.
I. The Case
I.A. The Petitions
The challenges to the EDCA come from several petitions that uniformly
question — based on Article XVIII, Section 25 of the 1987 Constitution — the use
of an executive agreement as the medium for the agreement with the
U.S. The petitioners posit that the EDCA involves foreign military bases, troops,
and facilities whose entry into the country should be covered by a treaty
concurred in by the Senate.
They question substantive EDCA provisions as well, particularly the grant of
telecommunication and tax privileges to the U.S. armed forces and its
personnel;4 the constitutional ban against the presence and storage of nuclear
weapons within the Philippines;5 the violation of the constitutional mandate to
protect the environment;6 the deprivation by the EDCA of the exercise by the
Supreme Court of its power of judicial review;7 the violation of the constitutional
policy on the preferential use of Filipino labor and materials; 8 the violation of the
constitu-
_______________
3 Derived from the Supreme Court’s powers under Article VIII, Section 5(2)(a)
of the Constitution.
4 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 46-47, 79-81.
5 Id., at pp. 52-57; Saguisag, et al. Petition (G.R. No. 212444), pp. 32-34.
6 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 84-87.
7 Id., at pp. 40-43; Saguisag, et al. Petition (G.R. No. 212444), pp. 34-36.
8 Id., at pp. 82-84.
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tional command to pursue an independent foreign policy;9 the violation of the
constitutional provision on the autonomy of local government units10 and of
National Building Code;11 and, last but not the least, they question the EDCA for
being a one-sided agreement in favor of the Americans.12
I.B. The Respondents’ Positions
The respondents, through the Office of the Solicitor General (OSG), respond by
questioning the petitioners on the threshold issues of justiciability, prematurity
and standing, and by invoking the application of the political question doctrine. 13
The OSG claims as well that the EDCA is properly embodied in an executive
agreement as it is an exercise of the President’s power and duty to serve and
protect the people, and of his commander-in-chief powers;14 that the practical
considerations of the case requires a deferential review of executive decisions over
national security;15that the EDCA is merely in implementation of two previous
treaties — the Mutual Defense Treaty of 1951 (1951 MDT) and the Visiting Forces
Agreement of 1998 (1998 VFA);16 that the President may choose the form of the
agreement, provided that the agreement dealing with foreign military bases,
troops, or facilities is not the principal agreement that first allowed their entry or
presence in the Philippines.
_______________
9 Id., at pp. 23-27; Saguisag, et al. Petition (G.R. No. 212444), pp. 36-38.
10 Id., at pp. 87-89.
11 Id., at pp. 90-91.
12 Id., at pp. 44-45, 58-59; Saguisag, et al. Petition (G.R. No. 212426), pp. 39-
49.
13 OSG Consolidated Comment, pp. 3-8.
14 Id., at pp. 10-13.
15 Id., at pp. 13-14.
16 Id., at pp. 14-21.
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Saguisag vs. Ochoa, Jr.
I.C. The Ponencia
The ponencia exhaustively discusses many aspects of the challenges in its
support of the OSG positions. It holds that the President is the chief implementor
of the law and has the duty to defend the State, and for these purposes, he may
use these powers in the conduct of foreign relations;17 even if these powers are not
expressly granted by the law in this regard, he is justified by necessity and is
limited only by the law since he must take the necessary and proper steps to carry
the law into execution.
 The ponencia further asserts that the President may enter into an executive
agreement on foreign military bases, troops, or facilities, if:
(a) it is not the instrument that allows the presence of foreign military bases,
troops, or facilities; or
(b) it merely aims to implement an existing law or treaty.18
It adds that the 1951 MDT is not an obsolete treaty; 19 that the 1998 VFA has
already allowed the entry of U.S. troops and civilian personnel and is the treaty
being implemented by the EDCA;20 that the President may generally enter into
executive agreements subject to the limitations defined by the Constitution, in
furtherance of a treaty already concurred in by the Senate;21 that the President
can choose to agree to the EDCA either by way of an executive agreement or by
treaty.22 While it compares the EDCA with the 1951 MDT and the 1998 VFA, it
claims at the same time it merely implements these treaties.23
_______________
17 Ponencia, pp. 299-304, 337-340.
18 Id., at pp. 342-367.
19 Id., at p. 349.
20 Id., at pp. 384-388.
21 Id., at pp. 357-371.
22 Id., at pp. 371-375.
23 Id., at pp. 375-413.
535
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Saguisag vs. Ochoa, Jr.
On the exercise of its power of judicial review, the ponencia posits that the
Court does not look into whether an international agreement should be in the form
of a treaty or an executive agreement, save in the cases in which the Constitution
or a statute requires otherwise;24 that the task of the Court is to determine
whether the international agreement is consistent with applicable
limitations;25 and that executive agreements may cover the matter of foreign
military forces if these merely involve adjustments of details.26
I.D. The Dissent
I dissent, as I disagree that an executive agreement is the proper
medium for the matters covered by the EDCA. The EDCA is an agreement
that, on deeper examination, violates the letter and spirit of Article XVIII, Section
25 and Article VII, Section 21, both of the Constitution.
The EDCA should be in the form of a treaty as it brings back to the
Philippines:
- the modern equivalent of the foreign military bases whose term
expired in 1991 and which Article XVIII, Section 25 of the Constitution
directly addresses;
- foreign troops under arrangements outside of the contemplation of
the visiting forces that the 1998 VFA allows; and
- military facilities that, under modern military strategy, likewise can
be brought in only through a treaty.
_______________
24 Id., at p. 375.
25 Id.
26 Id., at pp. 375-378.
536
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Saguisag vs. Ochoa, Jr.
As the ponencia does, I shall discuss the background facts and the threshold
issues that will enable the Court and the reading public to fully appreciate the
constitutional issues before us, as well as my reasons for the conclusion that the
EDCA, as an executive agreement, is constitutionally deficient.
I purposely confine myself to the term “constitutionally deficient”
(instead of saying “unconstitutional”) in light of my view that the
procedural deficiency that plagues the EDCA as an executive agreement
is remediable and can still be addressed. Also on purpose, I refrain from
commenting on the substantive objections on the contents of the EDCA for the
reasons explained below.
II. The Threshold Issues
The petitioners bring their challenges before this Court on the basis of their
standing as citizens, taxpayers, and former legislators. The respondents, on the
other hand, question the justiciability of the issues raised and invoke as well
the political question doctrine to secure the prompt dismissal of the petitions. I
shall deal with these preliminary issues below, singly and in relation with one
another, in light of the commonality that these threshold issues carry.
The petitioners posit that the use of an executive agreement as the medium to
carry EDCA into effect, violates Article XVIII, Section 25 of the 1987 Constitution
and is an issue of transcendental importance that they, as citizens, can raise before
the Supreme Court.27 (Significantly, the incumbent Senators are not direct
participants in this case and only belatedly reflected their institutional sentiments
through a Resolution.)28 The petitioners in G.R. No. 212444 also claim that the
constitutionality of the EDCA involves the assertion and
_______________
27 Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22; Bayan Muna, et
al. Petition (G.R. No. 212444), p. 6.
28 Senate Resolution No. 105 dated November 10, 2015.
 537
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Saguisag vs. Ochoa, Jr.
protection of a public right, in which they have a personal interest as affected
members of the general public.29
The petitioners likewise claim that the EDCA requires the disbursement of
public funds and the waiver of the payment of taxes, fees and rentals; thus, the
petitioners have the standing to sue as taxpayers.30
They lastly claim that the exchange of notes between the Philippines’
Department of National Defense Secretary Voltaire Gazmin and U.S. Ambassador
Philip Goldberg31 — the final step towards the implementation of the EDCA —
rendered the presented issues ripe for adjudication.
The respondents, in response, assert that the petitioners lack standing,32 and
that the petitions raise political questions that are outside the Court’s jurisdiction
to resolve.33
They also argue that the issues the petitions raise are premature.34The EDCA
requires the creation of separate agreements to carry out separate activities such
as joint exercises, the prepositioning of materiel, or construction activities. At
present, these separate agreements do not exist. Thus, the respondents state that
the petitioners are only speculating that the agreements to be forged under the
EDCA would violate our laws. These speculations cannot be the basis for a
constitutional challenge.
although on both counts I differ from the ponencia’s line of reasoning. Let me point
out at the outset, too, that judicial review is only an exercise of the wider judicial
power that Article VIII, Section 1 of the Constitution grants and defines. One
should not be confused with the other.
Judicial review is part of the exercise of judicial power under Article VIII,
Section 1 of the Constitution, particularly when it is exercised under the judiciary’s
expanded power (i.e., when courts pass upon the actions of other agencies of
government for the grave abuse of discretion they committed), or when the
Supreme Court reviews, on appeal or certiorari, the constitutionality or validity of
any law or other governmental instruments under Section 5(2)(a) and (b) of Article
VIII of the Constitution.
A basic requirement is the existence of an actual case or controversy that,
viewed correctly, is a limit on the exercise of judicial power or the more specific
power of judicial review.36
Whether such case or controversy exists depends on the existence of a legal
right and the violation of this right, giving rise to a dispute between or among
adverse parties.37 Under the expanded power of judicial review, the actual case or
controversy arises when an official or agency of government is
_______________
35 Ponencia, pp. 327-337.
36 Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014, 721 SCRA 146, 278-
279.
37 Id., at pp. 279-280.

II.A. Locus Standi

539
The ponencia holds that the petitioners do not have the requisite standing to
question the constitutionality of the EDCA, but chooses to give due course to the VOL. 779, JANUARY 12, 2016 539
petitions because Saguisag vs. Ochoa, Jr.
_______________
alleged to have committed grave abuse of discretion in the exercise of its
29 Bayan Muna, et al. Petition (G.R. No. 212444), pp. 9-10. functions.38
30 Saguisag, et al. Petition (G.R. No. 212426), pp. 19-22. Locus standi is a requirement for the exercise of judicial review39and is in fact
31 Id., at p. 19. an aspect of the actual case or controversy requirement viewed from the prism of
32 OSG Consolidated Comment, pp. 3-5. the complaining party whose right has been violated.40
33 Id., at pp. 5-7. When a violation of a private right is asserted, the locus standi requirement is
34 Id., at pp. 7-8. sharp and narrow because the claim of violation accrues only to the complainant
or the petitioner whose right is alleged to have been violated.41
On the other hand, when a violation of a public right is asserted — i.e., a right
538 that belongs to the public in general and whose violation ultimately affects every
538 SUPREME COURT REPORTS ANNOTATED member of the public — the locus standi requirement cannot be sharp or narrow;
it must correspond in width to the right violated. Thus, the standing of even a plain
Saguisag vs. Ochoa, Jr. citizen sufficiently able to bring and support a suit, should be recognized as he or
she can then be deemed to be acting in representation of the general public. 42
of the transcendental importance of the issues these petitions raise.35 In effect, _______________
the ponencia takes a liberal approach in appreciating the threshold issue of locus
standi. 38 See Separate Opinion of J. Brion in Imbong v. Ochoa, Jr., id., at pp. 489-
I agree with the ponencia’s ultimate conclusions on the threshold issues raised. 491.
I agree as well that a justiciable issue exists that the Court can pass upon,
 39 Galicto v. Aquino III, 683 Phil. 141, 170; 667 SCRA 150, 187 (2012).
40 Id.
41 See David v. Macapagal-Arroyo, 552 Phil. 705; 489 SCRA 160 (2006), where
the Court held that in private suits, standing is governed by the “real parties-in-
interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure,
as amended. It provides that “every action must be prosecuted or defended in the
name of the real party-in-interest.” Accordingly, the “real party-in-interest” is “the
party who stands to be benefited or injured by the judgment in the suit or the party
entitled to the avails of the suit.” Succinctly put, the plaintiff’s standing is based
on his own right to the relief sought.
42 De Castro v. Judicial and Bar Council, 629 Phil. 629, 680; 615 SCRA 666,
725 (2010).
540
540 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Transcendental importance is a concept (a much abused one) that has been
applied in considering the requirements for the exercise of judicial power.43 To be
sure, it may find application when a public right is involved because a right that
belongs to the general public cannot but be important.44 Whether the importance
rises to the level of being transcendental is a subjective element that depends on
the user’s appreciation of the descriptive word “transcendental” or on his or her
calibration of the disputed issues’ level of importance.
In either case, the use of transcendental importance as a justification is replete
with risks of abuse as subjective evaluation is involved. 45 To be sure, this level of
importance can be used as justification in considering locus standi with
liberality,46 but it can never be an excuse to find an actual controversy when there
is none. To hold otherwise is to give the courts an unlimited opportunity for the
exercise of judicial power — a situation that is outside the Constitution’s intent in
the grant of judicial power.
_______________
43 See Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 634; 338
SCRA 81, 101 (2000), citing Tatad v. Secretary of the Department of Energy, G.R.
No. 124360, November 5, 1997, 281 SCRA 330, 349, citing Garcia v. Executive
Secretary, G.R. No. 101273, July 3, 1992, 211 SCRA 219; Osmeña v. COMELEC,
G.R. No. 100318, July 30, 1991, 199 SCRA 750; Basco v. PAGCOR, G.R. No. 91649,
May 14, 1991, 197 SCRA 52; and Araneta v. Dinglasan, 84 Phil. 368 (1949).
44 Initiatives for Dialogue and Empowerment through Alternative Legal
Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management
Corporation (PSALM), G.R. No. 192088, October 9, 2012, 682 SCRA 602, 633-634.
45 See Separate Opinion of J. Brion in Cawad v. Abad, G.R. No. 207145, July
28, 2015, 764 SCRA 1, citing Quinto v. COMELEC, G.R. No. 189698, December 1,
2009, 606 SCRA 258, 276 and GMA Network, Inc. v. COMELEC, G.R. No. 205357,
September 2, 2014, 734 SCRA 88, 125-126.
46 See Chamber of Real Estate and Builders’ Association, Inc. (CREBA) v.
Energy Regulatory Commission (ERC), 638 Phil. 542, 556-557; 624 SCRA 556, 570
(2010), where the Court provided “instructive guides” as determinants in
determining whether a matter is of transcendental importance, namely: (1) the
character of the funds or other assets involved in the case; (2) the presence of a
clear case of disregard of a constitutional or statutory prohibition by the
541
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Saguisag vs. Ochoa, Jr.
In the present cases, a violation of the Constitution, no less, is alleged by the
petitioners through the commission of grave abuse of discretion. The violation
potentially affects our national sovereignty, security, and defense, and the
integrity of the Constitution — concerns that touch on the lives of the citizens as
well as on the integrity and survival of the nation. In particular, they involve the
nation’s capability for self-defense; the potential hazards the nation may face
because of our officials’ decisions on defense and national security matters; and
our sovereignty as a nation as well as the integrity of the Constitution that all
citizens, including the highest officials, must protect.
In these lights, I believe that the issues involved in the present case are so
important that a plain citizen sufficiently knowledgeable of the outstanding issues,
should be allowed to sue. The petitioners — some of whom are recognized legal
luminaries or are noted for their activism on constitutional matters — should thus
be recognized as parties with proper standing to file and pursue their petitions
before this Court.
II.B. Ripeness of the Issues Raised for Adjudication
I agree with the ponencia’s conclusion that the cases before this Court, to the
extent they are anchored on the need for Senate concurrence, are ripe for
adjudication. My own reasons for this conclusion are outlined below.
Like locus standi, ripeness for adjudication is an aspect of the actual case or
controversy requirement in the exercise of
_______________
public respondent agency or instrumentality of the government; and (3) the
lack of any other party with a more direct and specific interest in the questions
being raised.
542
542 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
 judicial power.47 The two concepts differ because ripeness is considered from
the prism, not of the party whose right has been violated, but from the prism of the
actual violation itself.
Of the two basic components of actual case or controversy, namely,
the existence of a right and the violation of that right, ripeness essentially
addresses the latter component.48 That a right exists is not sufficient to support
the existence of an actual case or controversy; the right must be alleged to have
been violated to give rise to a justiciable dispute. In other words, it is the fact of
violation that renders a case ripe,49 assuming of course the undisputed existence
of the right violated.
In the present cases, Article VIII, Section 25 of the Constitution lays down in
no uncertain terms the conditions under which foreign military bases, troops, and
facilities may be allowed into the country: there should at least be the concurrence
of the Senate.
Under these terms, the refusal to allow entry of foreign military bases, troops,
and facilities into the country without the required Senate concurrence is a
prerogative that the people of this country adopted for themselves under their
Constitution: they want participation in this decision, however indirect this
participation might be. This prerogative is exercised through the Senate; thus, a
violation of this constitutional prerogative is not only a transgression against the
Senate but one against the people who the Senate represents.
The violation in this case occurred when the President ratified the EDCA as
an executive agreement and certified to the other contracting party (the U.S.) that
all the internal processes have been complied with, leading the latter to believe
that the agreement is already valid and enforceable. Upon
47 Supra note 36 at p. 280.
48 Id.
49 Province of North Cotabato v. Government of the Republic of the Philippines
Peace Panel on Ancestral Domain (GRP), 589 Phil. 387, 481; 568 SCRA 402, 451
(2008).
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Saguisag vs. Ochoa, Jr.
such violation, the dispute between the President and the Filipino people
ripened.
The same conclusion obtains even under the respondents’ argument that the
constitutionality of the EDCA is not yet ripe for adjudication, since it requires the
creation of separate agreements to carry out separate activities such as joint
exercises, the prepositioning of materiel, or construction activities. To the
respondents, the petitioners are merely speculating on their claim of
unconstitutionality since these separate agreements do not yet exist.
Indeed, issues relating to agreements yet to be made are not, and cannot be,
ripe for adjudication for the obvious reason that they do not yet exist. The question
of the EDCA’s constitutionality, however, does not depend solely on the separate
agreements that will implement it. The fact that an executive agreement had been
entered into, not a treaty as required by Article XVIII, Section 25 of the
Constitution, rendered the agreement’s constitutional status questionable. Thus,
when the exchange of notes that signaled the implementation of the EDCA took
place, the issue of its compliance with the constitutional requirements became ripe
for judicial intervention under our expanded jurisdiction.
II.C. The Political Question Doctrine
Another threshold issue that this Court must settle at the outset, relates to the
political question doctrine that, as a rule, bars any judicial inquiry on any matter
that the Constitution and the laws have left to the discretion of a coordinate branch
of government for action or determination.50
The respondents raise the political question issue as part of their defense,
arguing that the issues the petitioners raise are
_______________
50 Bondoc v. Pineda, 278 Phil. 784; 201 SCRA 792 (1991).
544
544 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
policy matters that lie outside the Court’s competence or are matters where
the Court should defer to the Executive.51
The political question bar essentially rests on the separation of powers doctrine
that underlies the Constitution.52 The courts cannot interfere with questions that
involve policy determination exclusively assigned to the political departments of
the government.53The American case of Baker v. Carr54 best describes the
standards that must be observed in determining whether an issue involves a
political question, as follows:
Prominent on the surface of any case held to involve a political question
is found a textually demonstrable constitutional commitment of the issue
to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.55
From among these tests, the presence or absence of constitutional standards is
the most relevant under the circumstances of the present consolidated cases.
_______________
51 Javellana v. Executive Secretary, 151-A Phil. 36, 131; 50 SCRA 30, 140
(1973), citing In Re McConaughy, 119 N.W. 408, 417.
 52 See Garcia v. Executive Secretary, 602 Phil. 64, 73-77; 583 SCRA 119, 133-
134 (2009).
53 Id.
54 369 U.S. 186 (1962).
55 Id., at p. 217.
545
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Saguisag vs. Ochoa, Jr.
After analyzing the issues raised, I find the respondents’ position partly
erroneous and partly premature for a political question doctrine ruling.
This conclusion proceeds from my recognition that a distinction should be
drawn in recognizing the constitutional issues before us, some of which are
procedural in character while others are substantive ones that require the
application of different constitutional provisions.
The petitioners primarily question the constitutional validity of the EDCA for
violation of Article XVIII, Section 25 of the 1987 Constitution. They challenge, as
well, substantive provisions of the EDCA, among them, those relating to the grant
of telecommunication privileges and tax exemptions to American visiting forces,
and the EDCA provisions that would allegedly allow the entry of nuclear weapons
into the country.
That the EDCA is an agreement that requires concurrence by the Senate before
it can be considered valid and enforceable, is an issue that is essentially procedural
as it requires that steps be taken before an international agreement can be
considered fully valid and enforceable. It is an issue extrinsic to the terms of
the EDCA and is properly a threshold issue that must be resolved before the
substantive challenges to the EDCA’s validity can be addressed.
Aside from being procedural, the issue relates as well to the standard set by
the Constitution that delineates when an international agreement should be a
treaty subject to Senate concurrence. The presence of this standard renders the
determination of the medium to be used in forging an international agreement —
whether as a treaty or as an executive agreement an issue within the competence
and authority of the courts to resolve in their role as guardians of the
Constitution.56
_______________
56 Dueñas, Jr. v. House of Representatives Electoral Tribunal, 610 Phil. 730,
742; 593 SCRA 316, 345 (2009); Lambino v. Commission on Elections, 536 Phil. 1,
111; 505 SCRA 160, 264 (2006).
546
546 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Thus, the main issue the petitioners pose — the constitutional status of the
EDCA as an executive agreement in light of the mandate of Article XVIII, Section
25 of the Constitution — is not a political question outside the judiciary’s
competence and authority to resolve. The respondents’ argument on this point is
therefore erroneous.
If indeed a referral to the Senate is required and no referral has been made,
then the EDCA is constitutionally deficient so that its terms cannot be
enforced. This finding renders further proceedings on the merits of the substantive
issues raised, pointless and unwarranted. There is likewise no point in
determining whether the substantive issues raised call for the application of the
political question doctrine.57
On the other hand, the examination of the EDCA’s substantive contents may
be ripe and proper for resolution if indeed the EDCA can properly be the subject of
an executive agreement. It is at that point when the respondents may claim that
the substantive contents of the EDCA involve policy matters that are solely for the
President to determine and that the courts may not inquire into under the
separation of powers principle.58 It is only at that point when the application of the
political question doctrine is called for.
In these lights (particularly, my position on the merits of the procedural issue
raised), I find a ruling on the application of the political question doctrine to the
substantive issues raised premature and unripe for adjudication; any ruling or
discussion I may make may only confuse the issues when a proper petition on the
constitutionality of the substantive contents of EDCA is filed.
III. The Facts
III.A. Historical, International and Regional Contexts
_______________
57 See Constitution, Article VII, Section 21.
58 Supra note 50.
547
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Saguisag vs. Ochoa, Jr.
III.A(1) The Early Years of
Philippines-U.S. Relationship
Active Philippine-American relations started in 1898, more than a century ago,
when Commodore George Dewey and his armada of warships defeated the Spanish
navy in the Philippines in the Battle of Manila Bay.59 The sea battle was
complemented by land assaults by Philippine forces who were then in open
rebellion against Spain under the leadership of General Emilio Aguinaldo. 60
The complementary effort started a relationship that, from the Philippine end,
was characterized by hope of collaboration and assistance in the then colony’s
quest for independence from Spain.61But the fulfillment of this hope did not come
to pass and was in fact shattered when America, with its own
_______________
59 On order of then U.S. Secretary of the Navy, Theodore Roosevelt,
Commodore Dewey attacked the Spanish fleet in the Philippines. At noon of May
1, 1898, Commodore Dewey’s ships had destroyed the Spanish fleet at the Battle
of Manila Bay. See Bayan Muna, et al. Petition (G.R. No. 212444), p.
11, citinghttp://www.history.com/this-day-in-history/battle-of-manila-bay.
See Brzesinski, Zbigniew, The Grand Chessboard – American Primacy and its
Geostrategic Imperatives (1997).
See also Weir, Fraser, A Centennial History of Philippine Independence, 1898-
1998: Spanish-American War – War of Philippine Independence 1898-
1901. University of Alberta, available
at https://www.ualberta.ca/~vmitchel/fw4.html; The Spanish-American War,
1898, United States Department of State, available
at https://history.state.gov/milestones/1866-1898/spanish-american-war; and The
Spanish-American War in the Philippines (1989), American Experience, available
at http://www.pbs.org/wgbh/amex/macarthur/peopleevents/pandeAMEX87.html.
60 In the early part of 1898, the relations between the U.S. and Spain
deteriorated. As the war became imminent, Commodore George Dewey, the
commander of the U.S. Asiatic Squadron, had discussion with Emilio Aguinaldo’s
government in exile in Singapore and Hong Kong. See Weir, id.
61 Id.
548
548 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
geopolitical interests in mind, decided to fight the Philippine forces and to
keep the Philippines for itself as a colony. The American objective was fully
realized under the Treaty of Paris between Spain and the U.S., when the
Philippines was handed by Spain to the U.S. as a colony.62
The result, of course, was inevitable as the Philippine forces were not then
fighting for a change of masters but for independence. The Philippine forces fought
the Americans in the Philippine-American war, and lost.63
Thus, a new colonizer took Spain’s place. Unlike the Spanish colonial rule,
however, one redeeming feature of the American colonial rule was the introduction
of the concepts of democracy and governance.
As a colony, the Philippines, played a distinct role as the American outpost in
the Far East as the American geopolitical interests slowly grew from the First
World War years. By the end of the Second World War, the U.S.’ international
primacy was confirmed as the leader of the victor-nations. This international
leadership role became sole leadership when the Soviet Union collapsed in the late
1980s. Thus, the U.S. now stands as the only global superpower whose military,
economic, cultural, and technological reach and influence extend over all
continents.64
_______________
62 Treaty of Peace Between the United States and Spain (December 10, 1898),
Article III:
“Spain cedes to the United States the archipelago known as the Philippine
Islands x x x.” See Yale Law School, The Avalon Project, Treaty of Peace between
the United States and Spain, available
at http://avalon.law.yale.edu/19th_century/sp1898.asp.
63 Constantino, Renato, The Philippines: A Past Revisited,pp. 228-229 (1975).
64 See Brzesinski, supra note 59 at pp. 3-29.
According to Brzesinski, America stands supreme in the four decisive domains
of global power: (1) militarily, it has an unmatched global reach;
(2) economically, it remains the main locomotive of global growth;
(3) technologically, it retains the overall lead in the
549
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Saguisag vs. Ochoa, Jr.
III.A(2) The Post-W.W.II Years
It was soon after Philippine independence, as the U.S. superpower status was
rising, that the U.S. and the Philippines forged the Military Bases Agreement
of 1947 (1947 MBA) and the 1951 MDT. The 1947 MBA was the agreement
specific to the U.S. bases, troops, and facilities in the Philippines,65 while the 1951
MDT was the overarching document,
_______________
cutting-edge areas of innovation; and (4) culturally, despite some crassness,
it enjoys an appeal that is unrivaled. The combination of all four makes
America the only comprehensive superpower.
Brzesinski traced the trajectory of the US’s rise to global supremacy beginning
from World War I (WWI) to the end of the Cold War, noting that the U.S.’s
participation in WWI introduced it as a new major player in the international
arena. While WWI was predominantly a European war, not a global one, its self-
destructive power marked the beginning of the end of Europe’s political, economic
and cultural preponderance over the rest of the world. The European era in world
politics ended in the course of World War II (WWII), the first truly global war.
Since the European (i.e., Germany) and the Asian (i.e., Japan) were defeated, the
US and the Soviet Union, two extra-European victors, became the successors to
Europe’s unfulfilled quest for global supremacy.
The contest between the Soviet Union and the US for global supremacy
dominated the next fifty years following WWII. The outcome of this contest, the
author believes, was eventually decided by nonmilitary means: political vitality,
ideological flexibility, economic dynamism, and cultural appeal. The protracted
competition, in the end, eventually tip the scales in America’s favor simply because
it was much richer, technologically much more advanced, militarily more resilient
and innovative, socially more creative and appealing.
 65 See Bayan Muna, et al. Petition (G.R. No. 212444), pp. 13-14; and Kilusang 14; Saguisag v. Executive Secretary Ochoa petition (G.R. No. 212426), p. 8;
Mayo Uno, et al. Petition-in-Intervention, p. 7. and Kilusang Mayo Uno, et al. Petition-in-
See also Shalom, Stephen, Securing the U.S.-Philippine Military Bases
Agreement of 1947, William Paterson University, available
at http://www.wpunj.edu/dotAsset/209673.pdf; Paterno, Robert, American 551
Military Bases in the Philippines: The Brownell Opinion, available VOL. 779, JANUARY 12, 2016 551
at http://philippinestudies.net/ojs/index.php/ps/article/view
Saguisag vs. Ochoa, Jr.

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550 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
entered into and ratified by the two countries as a treaty, to define the
Philippine-American defense relationship in case of an armed attack by a third
country on either of them.66 As its title directly suggests, it is a defense agreement.
_______________
File/2602/5224; Gregor, James, The Key Role of U.S. Bases in the
Philippines, The Heritage Foundation, available
at http://www.heritage.org/research/reports/1984/01/the-key-role-of-us-bases-in-
the-philippines; Lim, Maria Teresa, “Removal Provisions of the Philippine-United
States Military Bases Agreement: Can the United States Take it All” 20 Loyola of
Los Angeles Law Review 421, 421-422. See Greene, Fred, The Philippine Bases:
Negotiating For the Future, p. 4 (1988).
The 1947 Military Bases Agreement was signed by the Philippines and the
U.S. on March 14, 1947; it entered into force on March 26, 1947 and was ratified
by the Philippine President on January 21, 1948. See Bevans, Charles, Treaties
and Other International Agreements of the United States of America (1776-
1949), available at United States Department of
State, https://books.google.com.ph/books?id=MUU6AQAA1AAJ&pg=PA55&1pg=
PA55&dq=17+UST+1212;+T1AS+6084&source=bl&ots=VBt1V34ntR&sig=X2yY
CbWVfJqF_o69-CcyiP88zw0&hl=en&sa=X&ved=0ahUKEwiKg-
jXq8LJAhXRBY4K
HSicDeAQ6AE1GzAA#v=onepage&q=17%20UST%201212%3B%20TIAS%206084
&f=false.
The Philippine government also agreed to enter into negotiations with the
U.S., on the latter’s request, to: expand or reduce such bases, exchange those bases
for others, or acquire additional base areas. The agreement allowed the U.S. full
discretionary use of the bases’ facilities; gave criminal jurisdiction over U.S. base
personnel and their dependents to the U.S. authorities irrespective of whether the
alleged offenses were committed on or off the base areas. See Gregor, id.
66 The Philippines and the U.S. signed the MDT on August 30, 1951. It came
into force on August 27, 1952 by the exchange of instruments of ratification
between the parties. See Mutual Defense Treaty, U.S.-Philippines, August 30,
1951, 177 U.N.T.S. 134, available
at https://treaties.un.org/doc/Publication/UNTS/Volume%20177 /volume-177-1-
2315-English.pdf. See also Bayan v. Gazmin petition (G.R. No. 212444), p.
The solidity of the R.P.-U.S. relationship that started in the colonizer-colony
mode, shifted to defense/military alliance (through the MBA, MDT, and their
supplementary agreements) after Philippine independence, and began to
progressively loosen as the Philippines tracked its own independent path as a
nation. Through various agreements,67 the American
_______________
Intervention, p. 7. It was concurred in by the Philippine Senate on May 12,
1952; and was advised and consented to by the U.S. Senate on March 20, 1952, as
reflected in the U.S. Congressional Record, 82nd Congress, Second Session, Vol.
98, Part 2, pp. 2594-2595. See Nicolas v. Romulo, 598 Phil. 262; 578 SCRA 438
(2009).
67 1956: The Garcia-Bendetsen conference resolved the issue of jurisdiction in
the American bases. The US began to recognize sovereignty of the Philippine
government over the base lands. See Exchange of Notes, U.S.-Philippines,
December 6, 1956, available
at http://elibrary.judiciary.gov.ph/thebookshelf/docmonth/Dec/1956/35.
1959: Olongapo, which was then an American territory, was officially turned
over by the US to the Philippines. Over the years, 17 of the 23 military installations
were also turned over to the Philippines. See Memorandum of Agreement, U.S.-
Philippines, October 12, 1959, available
at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/35/11192.
1965: An agreement was signed revising Article XIII of the treaty wherein the
US will renounce exclusive jurisdiction over the on-base offenses and the creation
of a joint criminal jurisdiction committee. See Exchange of Notes, U.S.-Philippines,
August 10, 1965, available
at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/35/10934.
1966: The Ramos-Rusk Agreement reduced the term of the MBA to 25 years
starting from that year. See Exchange of Notes, U.S.-Philippines, September 16,
1966, available at http://elibrary.jud
iciary.gov.ph/thebookshelf/showdocs/35/10859.
1979: The US reaffirmed Philippine sovereignty over the basis and placed each
base under command of a Philippine base commander. See Office of the President
of the Philippines, Official Week in Review, Official Gazette of the Republic of the
Philippines, 75(1), iii-iv (1979), available at http://www.gov.ph/1979/01/08/official-
week-in-review-january-1-january-7-1979/.
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552 SUPREME COURT REPORTS ANNOTATED
 Saguisag vs. Ochoa, Jr.
hold and the length of stay of American military bases in the Philippines
progressively shrunk.
The death knell for the U.S. military bases started sounding when a new
Philippine Constitution was ratified in 1987. The new Constitution provides
that after the expiration of the agreement on military bases, no foreign
military bases, troops or facilities shall be allowed except through a treaty
concurred in by the Senate or with the direct consent of the Filipino
people if Congress would require this mode of approval.68
The actual end of the military bases came in 1991 when the 1947 MBA expired
with no replacement formal arrangement in place except the 1951 MDT.69 For
some years, R.P.-U.S. relationship on defense/military matters practically froze.
The thaw only came when the 1998 VFA was negotiated and agreed upon as a
treaty that the Philippine Senate concurred in.
III.A(3) The U.S.’s “Pivot to Asia” Strategy
During the latter part of the first term of the Obama Administration, the U.S.
announced a shift in its global strategy in favor of a military and diplomatic “pivot”
or “rebalance” toward Asia.70 The strategy involved a shift of the U.S.’s diplomatic,
economic, and defense resources to Asia, made ur-
_______________
68 Constitution, Article XVIII, Section 25.
69 On September 16, 1991, the Philippine Senate voted to reject a new treaty
that would have extended the presence of U.S. military bases in the Philippines.
See Bayan (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623, 632; 342
SCRA 449, 464 (2000), citing the Joint Report of the Senate Committee on Foreign
Relation and the Committee on National Defense and Security on the Visiting
Forces Agreement.
70 United States Department of Defense, Sustaining U.S. Global Leadership:
Priorities for 21st Century Defense, p. 2 (January 2012), available
at http://archive.defense.gov/news/Defense_Strategic_Guidance.pdf.
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gent by “the rise of Chinese regional power and influence, and China’s
apparent inclination to exercise its burgeoning military power in territorial
disputes with its neighbors.”71 These disputes affected sea lanes that are vital to
the U.S. and its allies; hence, the U.S. was particularly concerned with their
peaceful resolution.72Critical to the strategy is the projection of American power
and influence worldwide.
The key to the new strategy in the military-political area is “presence: forward
deployment of U.S. military forces; a significant tempo of regional diplomatic
activity (including helping Asian countries resolve disputes that they cannot resolve
themselves); and promoting an agenda of political reform where it is
appropriate.”73This meant, among others, the strengthening of American military
alliance with Asian countries, including the Philippines.
The “pivot” has a direct relevance to Philippine concerns since it was prompted,
among others, by “China’s growing military capabilities and its increasing
assertiveness of claims to disputed maritime territory, with implications for
freedom of navigation and the United States’ ability to project power in the
region.”74 The opening of new areas for military coop-
_______________
71 Hemmings, John, Understanding the U.S. Pivot: Past, Present, and Future,
34(6) Royal United Services Institute Newsbrief (November 26, 2014), available
at https://hemmingsjohn.wordpress.com/2014/11/27/understanding-the-us-pivot-
past-present-and-future/.
72 Id.
73 Bush, Richard, No rebalance necessary: The essential continuity of U.S.
policy in the Asia-Pacific, Brookings Institution (March 18, 2015), available
at http://www.brookings.edu/blogs/order-from-chaos/posts/2015/18-value-of-
continuity-us-policy-in-asia-pacific.
74 US Congressional Research Service, Pivot to the Pacific? The Obama
Administration’s “Rebalancing” Toward Asia, p. 2, March 28, 2012, available
at http://www.fas.org/sgp/crs/natsec/R42448.pdf.
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554 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
eration with the Philippines is among the announced features of the “pivot.”75
III.A(4) The EDCA
It was soon after the launch of the “pivot” strategy that the initiatives
for the EDCA came. The EDCA, of course, did not introduce troops into the
country for the first time, as the 1998 VFA already ushered in the presence of U.S.
military troops on a rotational but temporary basis.
What the EDCA brought with it was the concept of “agreed locations”
to which the U.S. has “unimpeded access” for the refueling of aircraft;
bunkering of ships; pre-positioning and storage of equipment, supplies
and materials; the introduction of military contractors into the agreed
locations; and the stationing and deployment point for troops.76
In these lights, the confirmed and valid adoption of the EDCA would make the
Philippines an active ally participating either as a forward operating
site (FOS) or Cooperative Security Location (CSL) in the American “pivot”
strategy or, in blunter terms, in the projection and protection of American
worldwide power. FOS and CSL shall be explained under the proper topic below.
 All these facts are recited to place our reading of the EDCA in proper context
— historically, geopolitically, and with a proper appreciation of the interests
involved, both for the Philippines and the U.S.
_______________
75 United States Department of Defense, The Asia-Pacific Maritime Security
Strategy: Achieving U.S. National Security Objectives in a Changing Environment,
p. 23 (2015), available
at http://www.defense.gov/Portals/1/Documents/pubs/NDAA%20A-
P_Maritime_SecuritY_Strategy-08142015-1300-FlNALFORMAT.PDF.
76 EDCA, Article III.
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The U.S. is in Asia because of the geopolitical interests and the world
dominance that it seeks to maintain and preserve. 77 Asia is one region that has
been in a flux because of the sense of nationalism that had lain dormant among its
peoples, the economic progress that many of its countries are experiencing as the
economic winds shift to the East, and the emergence of China that — at the very
least — is now gradually being recognized as a regional power with the potential
for superpower status.78 The Philippines itself is encountering territorial problems
with China because of the latter’s claims in the West Philippine Sea; the
Philippines has chosen the path of peace in the dispute through international
arbitration.79
EDCA and Article XVIII, Section 25 of the Constitution, in their larger
regional signification, mean that the Philippines would thereafter, not
only be bound as an American ally under the 1951 MDT, but as an active
participant as “pivot” and projection points in the grand American
strategy in Asia.
How the Philippines will react to all these developments is largely for the
Executive and the people (through the Legislature) to determine. In making its
decisions, they must — at the very least — show one and all that our country is
entitled to respect as an independent and sovereign nation. This respect must
come primarily from within the Philippines and the Filipinos themselves,
from the nation’s own sense of self-respect: in negative terms, the Filipino
nation cannot attain self-respect unless it shows its respect for its own
_______________
77 Vine, David, Base Nation: How U.S. Military Bases Abroad Harm America
and the World, pp. 300-301 (2015).
78 Brzesinski, supra note 59 at pp. 151-193.
79 The arbitration case was filed before the Permanent Court of Arbitration
on January 22, 2013. See Republic of the Philippines v. The People’s Republic of
China, Permanent Court of Arbitration, available at http://www.pca-
cpa.org/showpage65f2.html?pag_id= 1529.
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556 SUPREME COURT REPORTS ANNOTATED
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Constitution — the only instrument that binds the whole nation.
IV. The President’s Role
in Governance and its Limits
This discussion is made necessary by the ponencia’s patent misconceptions
regarding the role the President plays in governance as chief executive and
implementor of policies and the laws.
IV.A. The Ponencia and My Objections
In upholding the constitutionality of the EDCA, the ponencia holds that the
President’s power and duty to ensure the faithful execution of our laws include the
defense of our country as the commander-in-chief of the country’s armed forces.80 It
contends that these powers, combined with the President’s capacity as the
country’s sole organ in foreign affairs, empower the President to enter into
international agreements with other countries and give him the discretion to
determine whether an international agreement should be in the form of a treaty
or executive agreement.
The patent misconception begins when the ponencia asserts that the President
cannot function with crippled hands: “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 he must ‘take necessary and proper steps to carry into execution
the law.’”81 It further adds that it is the President’s prerogative to do whatever is
legal and necessary for the Philippines’ defense interests.82
While acknowledging the Constitution’s command that the entry of foreign
military bases, troops, and facilities must be
_______________
80 Ponencia, pp. 337-341.
81 Id., at p. 340.
82 Id., at p. 341.
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Saguisag vs. Ochoa, Jr.
in a treaty, the ponencia asserts that the EDCA should be examined in relation
with this requirement alone, as the President’s wide authority in external affairs
should be subject only to the limited amount of checks and restrictions under
the Constitution.83
 It is within this framework that the ponencia concludes that the requirement
under Article XVIII, Section 25 of the Constitution is limited to the initial entry of
foreign military bases, troops, and facilities. Thus, once a treaty has allowed the
entry of foreign military bases, troops, and facilities into the Philippines,
the ponencia posits that the President may enter into subsequent executive
agreements that involve “detail adjustments” of existing treaties. 84
I cannot fully agree with the ponencia’s approach and with its
conclusions.
First and foremost, the ponencia overlooks that as Chief Executive, the
President’s role is not simply to execute the laws. This important function is
preceded by the President’s foremost duty to preserve and defend the
Constitution, the highest law of the land. The President’s oath, quoted by
the ponencia itself, in fact, states:
I do solemnly swear (or affirm) that I will faithfully and
conscientiously fulfill my duties as President (or Vice President or
Acting President) of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and consecrate
myself to the service of the Nation. So help me God.85 [Emphasis supplied]
The supremacy of the Constitution means that in the performance of his duties,
the President should always be guided and kept in check by the safeguards that
were crafted by the
_______________
83 Id., at pp. 337-375.
84 Id., at pp. 340-355, 375-446.
85 Constitution, Article VII, Section 5.
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558 SUPREME COURT REPORTS ANNOTATED
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framers of the Constitution and ratified by the people. The Constitution
prescribes the limitations to the otherwise awesome powers of the Executive who
wields the power of the sword and shares in the power of the purse.
I also do not agree that constitutional limitations, such as the need for Senate
concurrence in treaties, can be disregarded if they unduly “tie the hands” of the
President.86 These limitations are democratic safeguards that place the
responsibility over national policy beyond the hands of a single official. Their
existence is the hallmark of a strong and healthy democracy. In treaty-making,
this is how the people participate — through their duly-elected Senate — or
directly when the Congress so requires. When the Constitution so dictates, the
President must act through the medium of a treaty and is left with no discretion on
the matter. This is the situation under Article XVIII, Section 25 of the Constitution,
whose application is currently in dispute.
Let it be noted that noble objectives do not authorize the President to bypass
constitutional safeguards and limits to his powers. To emphasize this point, we
only need to refer to Article VI, Section 23(2) of the Constitution:
(2) In times of war or other national emergency, the Congress
may by law authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such
_______________
86 Although the ponencia recognized constitutional provisions that restrict or
limit the President’s prerogative in concluding international agreements
(see ponencia, pp. 357-371), it contradictorily asserts that “[n]o court can tell the
President to desist from choosing an executive agreement over a treaty to embody
an international agreement, unless the case falls squarely within Article VIII, Sec.
25” and that “[t]he President had the choice to enter into the EDCA by way of an
executive agreement or a treaty.” See ponencia, p. 371.
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power shall cease upon the next adjournment thereof. [Emphasis supplied]
Thus, the President cannot, by himself, usurp the prerogatives of a coequal
branch to carry out what he believes is necessary for the country’s defense
interests. His position as the Commander-in-Chief of the Armed Forces of the
Philippines (AFP) does not give him the sole discretion to increase our military’s
defensive capabilities; his role as commander-in-chief only gives him control of the
military’s chain of command. It grants him the power to call out the armed forces
to prevent/suppress lawless violence, invasion, insurrection, or rebellion. 87
The modernization of the military, in particular, is a joint responsibility of the
political branches of the State because the Congress is responsible for crafting
relevant laws88 and for allocating funds for the AFP through the General
Appropriations Act.89 The increase or decrease of funds and the extent of defense
initiatives to be undertaken are national policy matters that the President cannot
undertake alone.
IV.B. The President’s Foreign Relations
Power should be Interpreted in the Con-
text of the Separation of Powers Doctrine
We cannot also interpret a provision in the Constitution in
isolation and separately from the rest of the Constitution. Similarly, we cannot
determine whether the Executive’s acts had been committed with grave abuse of
discretion without considering his authority in the context of the powers of the
other branches of government.
_______________
87 Constitution, Article VII, Section 18.
88 The Constitution vests legislative power upon the Congress of the
Philippines. Thus, the Congress has the power to determine the subject matters it
can legislate upon. See Constitution, Article VI, Section 1.
89 Constitution, Article VI, Section 25.
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560 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
While the President’s role as the country’s lead official in the conduct of foreign
affairs is beyond question, his authority is not without limit. When examined
within the larger context of how our tripartite system of government works (where
each branch of government is supreme within its sphere but coordinate with the
others), we can see that the conduct of foreign affairs, particularly when it comes
to international agreements, is a shared function among all three branches of
government.
The President is undeniably the chief architect of foreign policy and is the
country’s representative in international affairs.90 He is vested with the authority
to preside over the nation’s foreign relations which involve, among others, dealing
with foreign states and governments, extending or withholding recognition,
maintaining diplomatic relations, and entering into treaties.91 In the realm of
treaty-making, the President has the sole authority to negotiate with other
States.92
IV.B(1) Separation of Powers
and the Treaty-Making Process
This wide grant of authority, however, does not give him the license to conduct
foreign affairs to the point of disregarding or bypassing the separation of powers
that underlies our established constitutional system.
Thus, while the President has the sole authority to negotiate and enter into
treaties, Article VII, Section 21 of the 1987 Constitution at the same time provides
the limitation that two-thirds of the members of the Senate should give their
concurrence for the treaty to be valid and effective.
_______________
90 Pimentel, Jr. v. Office of the Executive Secretary, 501 Phil. 303, 317-318;
462 SCRA 622, 632 (2005).
91 Id.
92 Id.
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Notably, this limitation is a not a new rule; the legislative branch of
government has been participating in the treaty-making process by giving (or
withholding) its consent to treaties since the 1935 Constitution. Section 10(7),
Article VII of the 1935 Constitution provides:
Sec. 10. (7) The President shall have the power, with the concurrence
of two-thirds of all the Members of the Senate, to make treaties x x x.
This tradition of legislative participation continued despite our presidential-
parliamentary form of government under the 1973 Constitution, that is markedly
different from the tripartite form of government that traditionally prevailed in the
country. Section 14(1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no
treaty shall be valid and effective unless concurred in by a majority of all
the Members of the Batasang Pambansa.
That we have consistently included the participation of the legislative branch
in the treaty-making process is not without an important reason: it provides a
check on the Executive in the field of foreign relations. By requiring the
concurrence of the Legislature in the treaties entered into by the President, the
Constitution ensures a healthy system of checks and balances necessary in the
nation’s pursuit of political maturity and growth.
Under this system, the functions of government are divided among three
branches of government, each one supreme within its own sphere: the executive
administers and enforces laws; the legislature formulates and enacts laws; and the
judiciary settles cases arising out of the enforcement of these
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562 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
laws.93 The requirement of Senate concurrence to the executive’s treaty-
making powers is a check on the prerogative of the Executive, in the same manner
that the Executive’s veto on laws passed by Congress94 is a check on the latter’s
legislative powers.
Even the executive agreements that the President enters into without
Senate concurrence has legislative participation — they are implementations of
existing laws Congress has passed or of treaties that the Senate had assented
to.95 The President’s authority to negotiate and ratify these executive agreements
springs from his power to ensure that these laws and treaties are executed.96
The judicial branch of government’s participation in international agreements
is largely passive, and is only triggered when cases reach the courts. The courts,
in the exercise of their judicial power, have the duty to ensure that the Executive
and Legislature stay within their spheres of competence;97 they ensure as well that
constitutional standards and limitations set by the Constitution for the Executive authority can derive support from “congressional inertia, indifference or
and the Congress to follow are not violated. quiescence.”101
Article VIII, Section 5 of the Constitution is even more explicit, as it gives the _______________
Supreme Court the jurisdiction “to review by appeal or certiorari all cases in which
the constitutionality or validity of any treaty, international or executive 98 343 U.S. 579 (1952).
agreement, law x x x is in question.” 99 Id., at p. 635.
Thus, entry into international agreements is a shared function among the 100 Id., at p. 637.
three branches of government. In this light and in the context that the President’s 101 Id.
actions should be viewed under our tripartite system of government, I cannot
agree
564
_______________
564 SUPREME COURT REPORTS ANNOTATED

93 Angara v. Electoral Commission, 63 Phil. 139 (1936). Saguisag vs. Ochoa, Jr.
94 Constitution, Article VI, Section 27(2).
95 Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333, 338-340; Third, “when the President takes measures incompatible with the
3 SCRA 351, 357 (1961). expressed or implied will of Congress, his power is at its lowest ebb,”102 and
96 Constitution, Article VII, Sections 5 and 17. the Court can sustain his actions “only by disabling the Congress from acting upon
97 Angara v. Electoral Commission, supra at pp. 157-159. the subject.”103
This framework has been recently adopted by the U.S. Supreme Court
in Medellin v. Texas,104 a case involving the President’s foreign affairs powers and
563 one that can be directly instructive in deciding the present case.
In examining the validity of an executive act, the Court takes into
VOL. 779, JANUARY 12, 2016 563
consideration the varying degrees of authority that the President possesses. Acts
Saguisag vs. Ochoa, Jr. of the President with the authorization of Congress should have the “widest
latitude of judicial interpretation”105 and should be “supported by the strongest of
with the ponencia’s assertion that the case should be examined solely presumptions.”106 For the judiciary to overrule the executive action, it must decide
and strictly through the constitutional limitation found in Article XVIII, that the government itself lacks the power. In contrast, executive acts that are
Section 25 of the Constitution. without congressional imprimatur would have to be very carefully
examined.
IV.B(2) Standards in Examining the President’s Treaty-Making
Powers IV.B(3) The Senate Objection to EDCA
as an Executive Agreement
Because the Executive’s foreign relations power operates within the larger
constitutional framework of separation of powers, I find the examination of the In the present cases, the President’s act of treating the EDCA as an
President’s actions through this larger framework to be the better approach in the executive agreement has been disputed by the Senate, although the Senate is
present cases. This analytical framework, incidentally, is not the result of my not an active party in the present cases.
original and independent thought; it was devised by U.S. Supreme Court Associate _______________
Justice Robert Jackson in his Concurring Opinion in Youngstown Sheet & Tube
Co. v. Sawyer.98 102 Id.
Justice Jackson’s framework for evaluating executive action categorizes the 103 Id., at pp. 637-638.
President’s actions into three: first, when the President acts with authority from 104 552 U.S. 491 (2008).
the Congress, his authority is at its maximum, as it includes all the powers he 105 Id.; Youngstown Sheet & Tube Co. v. Sawyer, supra note 98 at p. 637.
possesses in his own right and everything that Congress can delegate.99 106 Id.
Second, “when the President acts in the absence of either a congressional
grant or denial of authority, he can only rely on his own independent powers,
but there is a [twilight zone where] he and Congress may have concurrent 565
authority, or where its distribution is uncertain.”100 In this situation, presidential
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On November 10, 2015, the Senate sent the Supreme Court a copy of Senate
Resolution No. 1414107 expressing its sentiment that the EDCA should have been
entered into in the form of a treaty. Furthermore, and as will be explained in the
succeeding portions of this Dissenting Opinion, the EDCA’s provisions are not all
within the terms of the two treaties properly ratified by the Senate — the 1951
MDT and 1998 VFA; hence, the President could not have drawn his authority from
these agreements.
Thus, contrary to the ponencia’s assertion that the President’s act of treating
the EDCA as an executive agreement should be subject to the “least amount of
checks and restrictions under the Constitution,”108 this presidential action should
actually be very carefully examined, in light of the Senate’s own expressed
sentiments on the matter.
The mandatory character of the executive-legislative power sharing should be
particularly true with respect to the EDCA, as its adoption signifies Philippine
participation in America’s pivot strategy by making our country one of the
“pivot” or projection points that would enforce America’s military
strategy. In taking this kind of step, the Senate must simply be there to give its
consent, as the Constitution envisions in situations involving the entry of foreign
military bases, troops, and facilities into the country.
In these lights, I propose that we examine the President’s act of treating the
EDCA not simply by the standard of whether it complies with the limitation under
Article XVIII,
_______________
107 Senate Resolution No. 1414 was entitled as the “Resolution expressing the
strong sense of the Senate that any treaty ratified by the President of the
Philippines should be concurred in by the Senate, otherwise the treaty becomes
invalid and ineffective.” It was signed by thirteen Senators: Senators Defensor-
Santiago, Angara, Cayetano, P., Ejercito, Estrada, Guingona III, Lapid, Marcos,
Jr., Osmeña III, Pimentel III, Recto, Revilla, Jr., and Villar. Available
at https://www.senate.gov.ph/listdata/2175018478!.pdf.
108 Ponencia, p. 375.
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Saguisag vs. Ochoa, Jr.
Section 25 of the Constitution, but in the context of how our government
functions, and of other relevant provisions in the Constitution.
IV.C. Constitutional Standards in Allowing
the Entry of Foreign Military Bases, Troops,
and Facilities in the Philippines
IV.C(1) Article VII, Section 21 of the Con-
stitution and Treaty-Making
In general, the President’s foreign affairs power must be exercised in
compliance with Article VII, Section 21 of the Constitution, which requires the
submission of treaties the President ratified, to the Senate for its concurrence. The
Senate may either concur in, or withhold consent to, the submitted treaties.
Significantly, not all the international agreements that the President enters
into are required to be sent to the Senate for concurrence. Jurisprudence
recognizes that the President may enter into executive agreements with other
countries,109 and these agreements — under the proper conditions — do not
require Senate concurrence to be valid and enforceable in the Philippines.110
_______________
109 See Land Bank of the Philippines v. Atlanta Industries, Inc., G.R. No.
193796, July 2, 2014, 729 SCRA 12, 30-31, citing Bayan Muna v. Romulo, 656 Phil.
246, 269-274; 641 SCRA 244, 258 (2011); Neri v. Senate Committee on
Accountability of Public Officers and Investigations, 586 Phil. 135, 168; 549 SCRA
77, 105 (2008), citing Usaffe Veterans Association, Inc. v. Treasurer of the
Philippines, 105 Phil. 1030, 1038 (1959); Commissioner of Customs v. Eastern Sea
Trading, supra note 95.
110 Id.
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IV.C(2) Treaties and Executive Agreements under Article VII, Section
21
Where lies the difference, it may well be asked, since both a treaty and
an executive agreement fall under the general title of international
agreement?
An executive agreement emanates from the President’s duty to execute the
laws faithfully.111 They trace their validity from existing laws or from treaties that
have been authorized by the legislative branch of government.112 In short, they
implement laws and treaties.
In contrast, treaties are international agreements that do not originate solely
from the President’s duty as the executor of the country’s laws, but from the shared
function that the Constitution mandates between the President and the
Senate.113 They therefore need concurrence from the Senate after presidential
ratification, in order to fulfill the constitutional shared function requirement. 114
Jurisprudential definitions of treaties and executive agreements are
conceptually drawn from these distinctions although in Bayan Muna v.
Romulo,115 we simply differentiated treaties from executive agreements in this
wise:
Article 2 of the Vienna Convention on the Law of Treaties: An
international agreement 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. International agreements may be in the
_______________
111 Constitution, Article VII, Sections 5 and 17.
112 Commissioner of Customs v. Eastern Sea Trading, supra note 95.
113 Constitution, Article VII, Section 21. See also Bayan Muna v.
Romulo, supranote 109 at pp. 269-270; p. 263.
114 Bayan Muna v. Romulo, id.
115 Id.
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form of (1) treaties that require legislative concurrence after
executive ratification; or (2) executive agreements that are similar
to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range
of subject matters than treaties.116[Emphases supplied]
Bayan Muna likewise did not distinguish between treaties and executive
agreements in terms of their binding effects on the contracting States
concerned.117 But neither one can contravene the Constitution.
This ambiguity perhaps might have been the root of the general statement that
the Executive generally has the discretion to determine whether an international
obligation should be in the form of a treaty or an executive agreement. This general
statement, however, is far from complete and should be qualified because
the Executive’s exercise of discretion is affected and should be dictated by the
demands of the enforceability of the obligations the international agreement
creates in the domestic sphere.
Between a treaty and an executive agreement, a treaty exists on a higher plane
as it carries the authority of the President and the Senate.118 Treaties have the
status, effect, and impact of statutory law in the Philippines; they can amend or
prevail over prior statutory enactments.119
Executive agreements — which exist at the level of implementing rules and
regulations or administrative orders in the
_______________
116 Id., at p. 269; pp. 258-259.
117 Id.
118 Id., at p. 270; p. 259, citing Henkin, Foreign Affairs and the United States
Constitution, p. 224 (2nd ed., 1996), and Borchard, Edwin, Treaties and Executive
Agreements – Reply, Yale Law Journal, June 1945.
119 Id.
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domestic sphere — carry no such effect.120 They cannot contravene statutory
enactments and treaties and would be invalid if they do so.121
Again, this difference in impact is traceable to the source of their authority;
since a treaty has the approval of both the President and the Senate, it has the
same impact as a statute. In contrast, since an executive agreement springs from
the President’s power to execute laws, it cannot amend or violate existing treaties,
and must be in accord with and be made pursuant to existing laws and treaties.122
Accordingly, the terms and objectives of the presidential entry into an
international agreement dictates the form the agreement must take. When an
international agreement is made merely to implement an existing law or
treaty, then it can properly take the form of an executive agreement.123
In contrast, when an international agreement involves the introduction of
a new subject matter or the amendment of existing agreements or laws and
has not passed the required executive and legislative processes, then it should
properly be in the form of a treaty.124
To reiterate, the consequence of the violation of this norm impacts on the
enforceability of the international agreement in the domestic sphere; should an
executive agreement amend or contravene statutory enactments and treaties, then
it is void and cannot be enforced in the Philippines for lack of the proper authority
on the part of the issuer.
_______________
120 Gonzales v. Hechanova, 118 Phil. 1065, 1079; 9 SCRA 230, 242 (1963).
121 Adolfo v. CFI of Zambales, 145 Phil. 264, 266-268; 34 SCRA 166, 170
(1970).
122 Bayan Muna v. Romulo, supra note 109 at pp. 1079-1080; p. 279.
123 Id.
124 Id.
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In judicial terms, the distinctions and their consequences mean that an
executive agreement that creates new obligations or amends existing
ones, has been issued with grave abuse of discretion amounting to a lack
of or in excess of jurisdiction, and can he judicially nullified under the
courts’ power of judicial review.
IV.C(3) Joint Reading of Article VII,
Section 21 and Article XVIII, Section 25
 The dynamics that Article VII, Section 21 embody, should be read into Article
XVIII, Section 25 of the 1987 Constitution, which specifically covers and applies to
the entry of foreign military bases, troops, or facilities into the country.
It is on the basis of this joint reading that the ponencia’sconclusion — that
Article XVIII, Section 25 applies only to the initial entry of foreign military bases,
troops, and facilities in the country — is essentially incorrect.
Article XVIII, Section 25 does not provide for any such limitation in its
applicability. Neither is there anything in the language of the provision that
remotely implies this consequence. What it simply states is that foreign military
bases, troops, and facilities may only be present in Philippine soil in accordance
with a treaty concurred in by the Senate.
When the terms of Article XVIII, Section 25 treaty does not provide for
situations or arrangements subsequent to the initial entry of foreign military
bases, troops, or facilities in the country and the subsequent arrangements are still
attributed to the same treaty made pursuant to Section 25, the combined reading
of Article VII, Section 21 and Article XVIII, Section 25 must now come into play.
This combined reading simply means that after the initial entry of foreign
military bases, troops, or facilities in the Philippines under a duly ratified treaty,
subsequent arrangements relating to foreign military bases, troops or facilities
that are claimed to be based on the same treaty, should be examined
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based on the treaty-executive agreement distinctions recognized by
jurisprudence under Article VII, Section 21 of the Constitution.
In other words, any subsequent international agreement referring to military
bases, troops or facilities should be examined based on whether it creates a
new obligation or implements an existing one.The determination of this
question rests with the Executive but the treaty-executive agreement distinctions
should limit the Executive’s discretion when the new international agreement
relates to a new obligation (or a change in an existing obligation) as the presence
of foreign military bases, troops, or facilities in the Philippines should then be
effected through another treaty.
To put it more bluntly, Article XVIII, Section 25 effectively removes the
Executive’s discretion in deciding the form of an international agreement because
of this provision’s explicit directive to use a treaty as the medium for new
obligations created.
In Bayan v. Zamora,125 our conclusion supported this position. We explained
that Article XVIII, Section 25 makes no distinction as to whether the presence of
foreign military bases, troops, or facilities may be transient or permanent. 126 By
concluding that the permanence of foreign military bases, troops, or facilities is
immaterial to the application of Article XVIII, Section 25, we effectively
acknowledged that subsequent agreements that amend or introduce new
obligations to existing treaties that previously allowed the entry of foreign military
bases, troops or facilities, should be the subject of another treaty as they may enter
the country on varying grounds, lengths or periods of time — all of which can
change the nature of the obligations under existing treaties.
_______________
125 BAYAN (Bagong Alyansang Makabayan) v. Zamora, supra note 69.
126 Id., at p. 653; p. 484.
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IV.C(4) The Dissent’s Analytical Approach
Given these parameters, I propose that we examine the constitutionality of the
Executive’s act of entering into the obligations found in the EDCA in the form of
an executive agreement with these two questions:
(1) Does the EDCA involve the introduction into the Philippines of
foreign military bases, troops, or facilities that call for its examination
under Article XVIII, Section 25?
(2) Does the EDCA impose new obligations, or amend or go beyond
existing ones, regarding the presence of foreign military bases, troops, or
facilities in the Philippines?
If the EDCA introduces foreign military bases, troops, or facilities in the
Philippines within the contemplation of Article XVIII, Section 25 of the 1987
Constitution, and if these obligations are different from those found in our existing
treaty obligations with the U.S., then the EDCA cannot be enforced in the
Philippines without the Senate’s concurrence. The ponencia is then incorrect
and the Dissent must prevail.
Conversely, if the EDCA merely implements present treaty obligations —
particularly those under the 1951 MDT and the 1998 VFA — then the President
was well within his powers in the execution of our present treaty
obligations. The ponencia is correct and the Dissent therefore fails.
V. The Application of Article XVIII,
Section 25 to the EDCA
V.A. The Article XVIII, Section 25 Dispute
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When the subject of an international agreement falls under Article XVIII,
Section 25 of the Constitution, the President — by constitutional command —
must enter into a treaty subject to the concurrence of the Senate and, when
Congress so desires, of the people through a national referendum.
 This rule opens the door for Court intervention pursuant to its duty to uphold
the Constitution and its further duty (under its power of judicial review) to pass
upon any grave abuse of discretion committed by any official or agency of
government. It is under this constitutionally-mandated terms that this Court
invokes its power to review the constitutionality of the President’s actions in
handling the EDCA.
Within this framework, the issue these cases present is clear. The bottom line
question is whether the President gravely abused his discretion in
executing the EDCA as an executive agreement; the alleged existence of grave
abuse of discretion constitutes the actual case or controversy that allows the
exercise of judicial power. Whether grave abuse exists, in turn, depends on the
determination of whether the terms of the EDCA imposed new or amended
existing obligations involving foreign military bases, troops, and facilities
in the Philippines.
If the EDCA does, then it should have been in the form of a treaty submitted
to the Senate for its concurrence. In resolving this question, I am guided first, by
the text of the, Constitution itself and the meaning of its operative words in both
their original and contemporaneous senses; second, by the spirit that motivated
the framing of Article XVIII, Section 25; and third, by jurisprudence interpreting
this provision.
The ponencia lays the premise that the President may enter into an executive
agreement on foreign military bases, troops, or facilities if:
(a) it is not the instrument that allows the presence of foreign military bases,
troops, or facilities; or
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(b) it merely aims to implement an existing law or treaty.127
The ponencia follows this premise with the position that Article XVIII, Section
25 refers only to the initial entry of bases, troops, or facilities, and not to the
activities done after entry.128
In construing Article XVIII, Section 25, the ponencia invokes the rule of verba
legis, a cardinal rule of construction stating that when the law is clear and free
from any doubt or ambiguity, then there is no room for construction or
interpretation, only application.129 The law must be given its literal meaning and
applied without attempted interpretation.130 The ponencia asserts that the plain
meaning of “allowed in” refers solely to the initial entry. 131 Thus, after entry, any
subsequent acts involving foreign military troops, bases, or facilities no longer fall
under the coverage of Article XVIII, Section 25.132
I believe that the ponencia’s approach and interpretation are incorrect
because they are overly simplistic. The proper understanding of Article XVIII,
Section 25 must take into account the many considerations that bear upon its plain
terms, among them, the treaty-executive agreement distinctions under Article VII,
Section 21 that I discussed above; the history of Article XVIII, Section 25; the
motivations that drove the framers to adopt the provision; and the current and
contemporaneous developments and usages that give full and effective meaning to
the provision.
Separately from textual interpretation considerations and as part of the
history of Article XVIII, Section 25, the basic concept of sovereignty that underlies
it should not be forgot-
_______________
127 Ponencia, p. 341.
128 Id., at p. 347.
129 Bolos v. Bolos, G.R. No. 186400, 20 October 2010, 634 SCRA 429, 437.
130 Ponencia, pp. 356-357.
131 Id., at pp. 354-355.
132 Id.
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ten.133 Sovereignty means the full right and power of the nation to govern
itself, its people, and its territory without any interference from outside sources or
entities.134 Within its territory, a nation reigns supreme. If it will allow
interference at all, such interference should be under the terms the nation allows
and has accepted;135beyond those terms, the primacy of sovereignty is the rule.136
_______________
133 IV Record, Constitutional Commission, pp. 84, 659 and 661 (September
16, 1986), which reads:
MR. AZCUNA: After the agreement expires in 1991, the question, therefore,
is: Should we extend a new treaty for these bases to stay put in 1991 in our
territory? The position of the committee is that it should not, because the presence
of such bases is a derogation of Philippine sovereignty.
It is said that we should leave these matters to be decided by the executive,
since the President conducts foreign relations and this is a question of foreign
policy. I disagree, Madam President. This is not simply a question of foreign policy;
this is a question of national sovereignty. x x x
FR. BERNAS: My question is: Is it the position of the committee that the
presence of foreign military bases in the country under any circumstances is a
derogation of national sovereignty?
MR. AZCUNA: It is difficult to imagine a situation based on existing facts
where it would not. x x x
134 Id.
135 See Tañada v. Angara, 338 Phil. 546, 593; 272 SCRA 18, 68 (1997),
citing Reagan v. Commissioner of Internal Revenue, 141 Phil. 621, 625; 30 SCRA
968, 973 (1969), where the Court discussed the concept of auto-limitation, viz.: “It
is to be admitted that any State may by its consent, express or implied, submit to
a restriction of its sovereignty rights. That is the concept of sovereignty as auto-
limitation which, in the succinct language of Jellinek, ‘is the property of a state-
force due to which it has the exclusive capacity of legal-self determination and self-
restriction.’ A State then, if it chooses to, may refrain from the exercise of what
otherwise is illimitable competence.”
136 Id.
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Thus, if interference were to be allowed at all, or if exceptions to full
sovereignty within a territory would be allowed, or if there would be any ambiguity
in the extent of an exception granted, the interference, exception or ambiguity
must be resolved in favor of the fullest exercise of sovereignty under the obtaining
circumstances. Conversely, if any ambiguity exists at all in the terms of the
exception or in the terms of the resulting treaty, then such terms should be
interpreted restrictively in favor of the widest application of the restrictions
embodied in the Constitution and the laws.
The ponencia cannot be incorrect in stating the rule that when terms are clear
and categorical, no need for any forced constitutional construction exists;137 we
need not divine any further meaning but must only apply terms in the sense that
they are ordinarily understood.
A flaw, however, exists in the ponencia’s application of verba legis as Article
XVIII, Section 25 is neither plain nor that simple.
As pointed out above, it must be read together with Article VII, Section 21 for
the general rules on the treaty-making process. It also expressly refers to a
historical incident — the then coming expiration of the 1947 MBA. From these
takeoff points, the Article XVIII, Section 25 proceeds to a list of the matters it
specifically addresses — foreign military bases, troops, or facilities.
All these bring up the question that has so far been left undiscussed — what
are the circumstances that led to the expiration of the 1947 MBA and what
are the foreign military bases, troops, and facilities that Article XVIII,
Section 25 refers to?
V.B. The History and Intent of
Article XVIII, Section 25
_______________
137 Ponencia, pp. 356-357.
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The history of Article XVIII, Section 25 of the Constitution is practically
summed up in the introductory phrase of the provision — “After the expiration in
1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases x x x.”
Purely and simply, the framers of the Constitution in 1986 then looked forward
to the expiration of the U.S. bases coming in 1991 and wanted the terms of any
future foreign military presence governed by the Constitution itself. Behind this
intent is the deeper policy expressed under Article II, Section 7 of the Constitution
—
The State shall pursue an independent foreign policy. In its
relations with other states the paramount consideration shall be national
sovereignty, territorial integrity, national interest, and the right to
self-determination.
During the constitutional deliberation on Article XVIII, Section 25, two views
were espoused on the presence of military bases in the Philippines. One view was
that espoused by the anti-bases group; the other group supported the view that
this should be left to the policy makers.
Commissioner Adolfo Azcuna expressed the sentiment of the first group when
he stated in his privilege speech on 16 September 1986 that:
After the agreement expires in 1991, the question therefore, is: Should we
extend a new treaty for these bases to stay put in 1991 in our territory? The
position of the committee is that it should not, because the presence of such
bases is a derogation of Philippine sovereignty.
It is said that we should leave these matters to be decided by the executive,
since the President conducts foreign relations and this is a question of
foreign policy. I disagree, Madam President. This is not simple a question
of foreign policy; this is a question of national sovereignty.
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And the Constitution is anything at all, it is a definition of the
parameters of the sovereignty of the people.138
On the other hand, the second group posited that the decision to allow foreign
bases into the country should be left to the policy makers. Commissioner Jose
Bengzon expressed the position of this group that:
x x x this is neither the time nor the forum to insist on our views for we
know not what lies in the future. It would be foolhardy to second-guess the
events that will shape the world, our region and our country by 1991. It
would be sheer irresponsibility and a disservice to the highest calibre to our
own country if we were to tie down the hands of our future governments
and future generations.139
 Despite his view that the presence of foreign military bases in the Philippines
would lead to a derogation of national security, Commissioner Azcuna conceded
that this would not be the case if the agreement would allow the foreign military
bases, troops, and facilities to be embodied in a treaty.140
_______________
138 III Record, Constitutional Commission 86 (16 September 1986), p. 659.
139 IV Record, Constitutional Commission 82 (13 September 1986), pp. 617-
618.
140 IV Record, Constitutional Commission 84 (16 September 1986), pp. 661-
662, which reads:
FR. BERNAS. My question is: is it the position of the committee that the
presence of foreign military bases in the country under any circumstances is a
derogation of national sovereignty?
MR. AZCUNA: It is difficult to imagine a situation based on existing facts
where it would not. However, in the abstract, it is possible that it would not be that
much of a derogation. I have in mind, Madam President, the argument that has
been presented. Is that the reason why there are U.S. bases in England, in Spain
and in Turkey? And it is not being claimed that their sovereignty is being
derogated. Our situation is different from theirs because we did not lease or rent
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After a series of debates, Commissioner Ricardo Romulo proposed an
alternative formulation that is now the current Article XVIII, Section 25.141 He
explained that this is an explicit ban on all foreign military bases other than those
of the U.S.142 Based on the discussions, the spirit of the basing provi-
_______________
these bases to the U.S. The US retained them from us as a colonial power.
xxxx
FR. BERNAS: Does the first sentence tolerate a situation radically different
from what obtains now? In other words, if we understand sovereignty as auto
limitation, as a people’s power to give up certain goods in order to obtain something
which may be more valuable, would it be possible under this first sentence for the
nation to negotiate some kind of a treaty agreement that would not derogate
against sovereignty?
MR. AZCUNA: Yes. For example, Madam President, if it is negotiated on a
basis of true sovereign equality, such as a mutual ASEAN defense agreement
wherein an ASEAN force is created and this ASEAN force is a foreign military
force and may have a basis in the member ASEAN countries, this kind of a
situation, I think would not derogate from sovereignty.
141 IV Record, Constitutional Commission 86 (18 September 1986), p. 787,
which reads:
MR. ROMULO: Madam President, may I propose my amendment to the
Bernas amendment: “AFTER THE EXPIRATION OF THE RP-US AGREEMENT
IN 1991, FOREIGN MILITARY BASES, TROOPS OR FACILITIES SHALL NOT
BE ALLOWED IN THE PHILIPPINE TERRITORY EXCEPT UNDER THE
TERMS OF A TREATY DULY CONCURRED IN BY THE SENATE, AND WHEN
CONGRESS SO REQUIRES RATIFIED BY A MAJORITY OF THE VOTES CAST
BY THE PEOPLE IN A REFERENDUM HELD FOR THAT PURPOSE AND
RECOGNIZED AS A TREATY BY THE OTHER CONTRACTING STATE.”
142 IV Record, Constitutional Commission 86 (18 September 1986), p. 780,
which reads:
FR. BERNAS: On the other hand, Madam President, if we place it in the
Transitory Provisions and mention only the American State, the conclusion might
be drawn that this applies only to foreign
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sions of the Constitution is primarily a balance of the preservation of the
national sovereignty and openness to the establishment of foreign bases,
troops, or facilities in the country.
Article XVIII, Section 25 imposed three requirements that must be complied
with for an agreement to be considered valid insofar as the Philippines is
concerned. These three requirements are: (1) the agreement must be embodied in
a treaty; (2) the treaty must be duly concurred in by 2/3 votes of all the members
of the Senate;143 and (3) the agreement must be recognized as a treaty by the other
State.
On the second requirement, the two-thirds concurrence of all the members of
the Senate, the people’s representative,144
_______________
military bases of the United States. The conclusion might be drawn that the
principle does not apply to other states.
MR. ROMULO: That is certainly not our meaning. We do not wish any other
foreign military base here and I think the phrase which says: “NO FOREIGN
MILITARY BASES, TROOPS OR FACILITIES...” makes that very clear even if it
is in the Transitory Provisions.
143 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 69 at p.
652; pp. 483-487, stating that:
Undoubtedly, 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 of Section
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, as will be further discussed hereunder.
xxxx
 As noted, the “concurrence requirement” under Section 25, Article XVIII must
be construed in relation to the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate contemplated under Section 25,
Article XVIII means that at least two-thirds of all the members of the Senate
favorably vote to concur with the treaty, the VFA in the instant case.
144 Constitution, Article VII, Section 21. See also Bernas, Joaquin, The 1987
Constitution of the Republic of the Philippines: A Commentary, pp. 487-488 (1995).
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sions of the Constitution is primarily a balance of the preservation of the
national sovereignty and openness to the establishment of foreign bases,
troops, or facilities in the country.
Article XVIII, Section 25 imposed three requirements that must be complied
with for an agreement to be considered valid insofar as the Philippines is
concerned. These three requirements are: (1) the agreement must be embodied in
a treaty; (2) the treaty must be duly concurred in by 2/3 votes of all the members
of the Senate;143 and (3) the agreement must be recognized as a treaty by the other
State.
On the second requirement, the two-thirds concurrence of all the members of
the Senate, the people’s representative,144
_______________
military bases of the United States. The conclusion might be drawn that the
principle does not apply to other states.
MR. ROMULO: That is certainly not our meaning. We do not wish any other
foreign military base here and I think the phrase which says: “NO FOREIGN
MILITARY BASES, TROOPS OR FACILITIES...” makes that very clear even if it
is in the Transitory Provisions.
143 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 69 at p.
652; pp. 483-487, stating that:
Undoubtedly, 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 of Section
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, as will be further discussed hereunder.
xxxx
As noted, the “concurrence requirement” under Section 25, Article XVIII must
be construed in relation to the provisions of Section 21, Article VII. In a more
particular language, the concurrence of the Senate contemplated under Section 25,
Article XVIII means that at least two-thirds of all the members of the Senate
favorably vote to concur with the treaty, the VFA in the instant case.
144 Constitution, Article VII, Section 21. See also Bernas, Joaquin, The 1987
Constitution of the Republic of the Philippines: A Commentary, pp. 487-488 (1995).
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may be viewed as the people’s “voluntary submission” of their sovereignty so
they can reap the greater benefits of the agreement that the President, as
policymaker, entered into.
When the Congress so requires, the agreement should be ratified by a majority
of the votes cast by the people in a national referendum held for that
purpose.145 This additional requirement evinces the framers’ intent to emphasize
the people’s direct participation in treaty-making.
In Bayan v. Zamora,146 the Court relaxed the third requirement when it ruled
that it is sufficient that “the other contracting party accepts or acknowledges the
agreement as a treaty.” In that case, since the U.S. had already declared its full
commitment to the 1998 VFA,147 we declared that it was unnecessary for the U.S.
to further submit the agreement to the U.S. Senate.148
This history highlights the importance of the issue now before us, and stresses
as well how seriously the Constitution regards the Senate concurrence
requirement. Thus, the issue can neither be simply glossed over nor disregarded
on the basis of stretched legal technicalities. In case of doubt, as above discussed,
such doubt should be resolved strictly in favor of what the Constitution requires in
its widest sense.
V.C. Historical Roots of the U.S. Bases in the Philippines
As a U.S. colony after the Treaty of Paris of 1898, the whole Philippines could
be equated to one big American base: the U.S. had sovereignty and had a free hand
on how to deal with defense matters and its military forces in the Philippines.
_______________
145 Constitution, Article XVIII, Section 25.
146 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 69.
147 Id., at p. 659; p. 488.
148 Id., at pp. 656-659; p. 488.
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The Tydings-McDuffie Act of 1934 provided for the Philippines’ self-
government and specified a procedural framework for the drafting of a constitution
for the government of the Commonwealth of the Philippines149 within two years
from the Act’s enactment.150The Act, more importantly, mandated the recognition
by the U.S. of the independence of the Philippine Islands as a separate and self-
governing nation after a ten-year transition period.151
 Prior to independence, the Act allowed the U.S to maintain military forces in
the Philippines and to call all military forces of the Philippine government into
U.S. military service.152 The Act empowered the U.S. President, within two
years following independence, to negotiate for the establishment of U.S.
naval reservations and fueling stations in the Philippine Islands.153
The negotiations for American bases that took place after independence
resulted in the 1947 MBA.
V.C(1) The 1947 Military Bases Agreement
The 1947 MBA between the Philippines and the U.S. was signed on March 16,
1947. The agreement officially allowed
_______________
149 The Tydings-McDuffie Act, also known as the Philippine Independence
Act, was entitled “An Act to Provide for the Complete Independence of the
Philippine Islands, to provide for the Adoption of a Constitution and a Form of
Government for the Philippine Islands, and for other purposes.” It was signed into
law by President Franklin D. Roosevelt on March 24, 1934 and was approved by
the Philippine Senate on May 1, 1934. See Encyclopedia Britannica, Tydings-
McDuffie Act, available at http:/www.britanica.com/topic/Tydings-McDuffie-
Act and http://www.philippine-history.org/tydings-mcduffie-law.htm.
150 Tydings-McDuffie Act, Section 3.
151 Id., Section 10.
152 Id., Section 2(12). See also Ordinance appended to 1935 Constitution,
Section 1(12).
153 Id., Section 10(b).
 The bases were for the mutual protection and cooperation of the two countries
583
 The U.S. had the right, power and authority necessary for the establishment,
VOL. 779, JANUARY 12, 2016 583
Saguisag vs. Ochoa, Jr.
the U.S. to establish, maintain, and operate air and naval bases in the
country.154 It provided for about 23 listed bases and facilities for use by Americans
for a period of 99 years.155 The most important of these bases were the 180,000-
acre Clark Air Base in Pampanga, then the biggest American airbase outside of
the continental U.S.A., and the Subic Naval Base in Zambales.
The bases covered by the 1947 MBA were fixed bases where
American structures and facilities had been built and arms, weapons, and
equipment were deployed and stored, and where troops and civilian
personnel were stationed, together with their families.
Other provisions of the 29-article 1947 MBA were the following:
 The bases were properties over which the U.S. originally exercised sovereignty
 The Philippine government was prohibited from granting any bases to other
but this was subsequently transferred to the Philippines pursuant to
the Romulo-Murphy Agreement of 1979. After the transfer, the U.S. and its
armed forces and personnel were granted rent-free access up to the expiration
of the Agreement.156
_______________
154 The 1947 MBA Whereas Clause, par. 7, states:
THEREFORE, the Governments of the Republic of the Philippines and of the
United States of America agree upon the following terms for the delimitation,
establishment, maintenance, and operation of military bases in the Philippines.
155 1947 MBA, Article XXIX; see Annexes A and B of the 1947 MBA.
156 The 1947 MBA Whereas clause states:
Whereas, the Governments of the Republic of the Philippines and of the United
States of America are desirous of cooperating in the common defense of their two
countries through arrangements consonant with the procedures and objectives of
the United Nations, and particularly through a grant to the United States of
America by the Republic of the Philippines in the exercise of its title and
sovereignty, of the use, free of rent, in furtherance of the mutual interest of both
countries, of certain lands of the public domain. x x x (Emphases supplied)
584
584 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
and for this purpose were for their use as U.S. and Philippine military
installations.157
operation, and defense of the bases and their control,158 specifically:
o To operate, maintain, utilize, occupy, garrison, and control the bases;
o To improve and deepen the harbors, channels and entrances and anchorage,
and to construct and maintain necessary roads and bridges accessing the
bases;
o To control the operation and safety of the bases and all the structures and
facilities in them;
o To acquire right-of-way by agreement and to construct telecommunication
and other facilities;
o To construct, install, maintain and employ on any base any type of facilities,
weapons, substance, device, or vessel as may be necessary;
o To bring into the Philippines members of the U.S. military forces and U.S.
nationals employed under contract by the U.S. with the families, as well as
technical personnel of other nationalities not otherwise excluded from the
Philippines.
nations without U.S. consent.159
 military arms, ammunitions, supplies, equipment, vessels, services, and training
for the latter’s defense forces.
 The U.S. was permitted to recruit Filipino citizens, on voluntary basis, for The 1953 Exchange of Notes Constituting an Agreement Extending the
service in the American military.160 Agreement Between the Government of the Republic of the Philippines and the
Government of the United States of America on Military Assistance to the
Philippines (1953 Agreement) clarified that the 1947 Agreement would remain in
force until terminated by any of the parties.
_______________

157 1947 MBA, Whereas Clause, Articles II and III. 586

158 Id., Articles II, III, IV, VI, and VII.
586 SUPREME COURT REPORTS ANNOTATED
159 Id., Article XXV(1).
160 Id., Article XXVII. Saguisag vs. Ochoa, Jr.

On September 16, 1966, the Ramos-Rusk Agreement reduced its term to 25

585 years starting from that year.
VOL. 779, JANUARY 12, 2016 585 A review of the 1947 MBA in 1979 led to the formal transfer of control of Clark
and Subic bases to the Philippines.163 Thus, these bases became Philippine
Saguisag vs. Ochoa, Jr. military installations containing U.S. military facilities. The review also
provided that each base would be under a Filipino base commander;
the Philippine flag was to fly singly in the bases; the Philippine
 The U.S. base commanders had the right to tax, distribute utilities, hand out government was to provide security along the bases’ perimeters; and the
licenses, search without warrants, and deport undesirables.161 review of the agreements would take place every five years starting in 1979. 164
On September 16, 1991, the Philippine Senate rejected the proposed RP-US
Treaty of Friendship, Cooperation and Security that would have extended the life
Complementing the signing of the 1947 MBA was the signing of the Military
of the bases for 10 more years.165The 1947 MBA was terminated on December 21,
Assistance Agreement of 1947 and the 1951 MDT.
1992 when the 25-year tenure lapsed. This prompted the U.S. to vacate its bases
Over the years, various provisions of the 1947 MBA were amended, gradually
effective at the end of December 1992.166
delimiting U.S. control over the bases.162
_______________
_______________
163 See Romulo-Murphy Exchange of Notes of 1979.
164 See Official Gazette, Report of President Marcos to the Batasang
161 Id., Articles XI, XII, XIII, XIV, and XV.
Pambansa, January 15, 1979.
162 The Ramos-Rusk Agreement of 1966 reduced the term of the 1947 Bases
165 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 69 at p.
Treaty to a total of 44 years or until 1991.
632; p. 464, which states:
The Bohlen-Serrano Memorandum of Agreement provided for the return to the
In view of the impending expiration of the RP-U.S. Military Bases Agreement
Philippines of 17 U.S. military bases.
in 1991, the Philippines and the U.S. negotiated for a possible extension of the
The Romulo-Murphy exchange of Notes of 1979 recognized Philippine
military bases agreement. On September 16, 1991, the Philippine Senate rejected
sovereignty over the Clark and Subic Bases, reduced the area that could be used
the proposed RP-U.S. Treaty of Friendship, Cooperation and Security which, in
by the U.S. military, and provided for the mandatory review of the 1947 Bases
effect, would have extended the presence of U.S. military bases in the Philippines.
Treaty every five years.
166 Philippine Communications Satellite Corporation v. Globe Telecom,
The Romualdez-Armacost Agreement of 1983 revised the 1947 Bases Treaty,
Inc., 473 Phil. 116, 122; 429 SCRA 153, 156 (2004), which states:
particularly pertaining to the operational use of military/bases by the U.S.
On 31 December 1991, the Philippine Government sent a Note
government within the context of Philippine sovereignty, including the need for
Verbale to the U.S. Government through the U.S. Embassy, notifying it of
prior consultation with the Philippine government on the former’s use of the bases
the Philippines’ termination of the RP-US Military Bases Agreement.
for military combat operations or the establishment of long-range missiles.
The Note Verbale stated that since the RP-US Military Bases Agreement,
The 1947 Military Assistance Agreement (1947 MAA) entered into by the
as amended, shall ter-
President with the U.S. pursuant to the authority granted under Republic Act No.
9. The Agreement established the conditions under which the U.S. military
assistance would be granted to the Philippines, particularly the provision of
 587
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Saguisag vs. Ochoa, Jr.
The departure of the U.S. warship Bellau Wood marked the closure of
American military bases in the country.167
With the expiration of the 1947 MBA, the detailed arrangements for the
presence of U.S. military forces and facilities in the Philippines, particularly those
listed above, similarly ended, leaving only the general arrangements under the
1951 Mutual MDT.
V.C(2) The 1951 Mutual Defense Treaty
The 1951 MDT was signed on August 30, 1951, while the U.S. was establishing
a number of bilateral defense alliances with key Asian States as it positioned itself
to contain communist expansion in Asia in the period following World War II and
the Korean War. Despite periods of drift, its relationship with its Asian allies
provided the U.S. support and assistance throughout the Cold War and during the
Vietnam War.168
The 1951 MDT provided the general terms of the defense alliance between the
U.S. and the Philippines; the more detailed terms were reflected in the earlier 1947
MBA that expired and was not renewed in 1991.
_______________
minate on 31 December 1992, the withdrawal of all U.S. military forces
from Subic Naval Base should be completed by said date.
167 Anderson, Gerald, Subic Bay From Magellan to Pinatubo: The History of
the US Naval Station, Subic Bay, p. 181 (2006), available
at https://books.google.com.ph/books?id=OfPs0NH5EuAC&printsec=frontcover&d
q=subic+bay+from+magellan+to+pinatubo&hl=en&sa=X&ved=0ahUKEwjvitrLr
NjJAhUBJ5QKHcBICAUQ6AEIJDAA#v=onepage&q=subic%20bay%20from%20
magellan%20to%20pinatubo&f=false.
168 Vaughn, Bruce, “U.S. Strategic and Defense Relationships in the Asia-
Pacific Region” U.S. Congressional Research Service Report for Congress (January
22, 2007). Available at https://www.fas.org/sgp/crs/row/RL33821.pdf.
588
588 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
The 1947 MBA and the 1951 MDT were the counterparts of U.S. agreements
with the North Atlantic Treaty Organization (NATO)countries. One of those
agreements was the NATO Status of Forces Agreement (NATO-SOFA), a
multilateral agreement that applies to all the NATO member countries. 169
After the World War II, the U.S. maintained various European
bases.170 Despite the presence of these bases, the U.S. entered into the NATO-
SOFA on June 19, 1951, to define the terms for the deployment and status of its
military forces in these countries.171Most of the other NATO states, however,
_______________
169 Mason, R. Chuck, “Status of Forces Agreement (SOFA): What is it, how is
it utilized?” U.S. Congressional Research Service Report for Congress (March 15,
2012). Available at https://wvvw.fas.org/sgp/crs/natsec/RL34531.pdf.
170 For an illustrated depiction of the increase of U.S. military bases around
the world before (1939) and after (1945) World War III, see Vine, David, supra note
77 at pp. 32-36.
171 See Mason, supra, stating that the U.S. and Germany entered into a
supplemental agreement to the NATO-SOFA (as provided in 14 U.S.T. 531;
T.I.A.S. 5351. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963) and
additional exchange of notes related to specific issues (14 U.S.T. 689; T.I.A.S. 5352;
490 U.N.T.S. 30. Signed at Bonn, August 3, 1959. Entered into force July 1, 1963).
Also, the Manila Pact entered into on September 8, 1954 by the U.S., the
Philippines, Australia, France, New Zealand, Pakistan, and Thailand, whereby the
parties agreed, among others, to: settle any international disputes in which they
may be involved by peaceful means in such a manner that international peace and
security and justice are not endangered, and to refrain in their international
relations from the threat or use of force in any manner inconsistent with the
purposes of the United Nations; and separately and jointly, by means of continuous
and effective self-help and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack and to prevent and counter
subversive activities directed from without against their territorial integrity and
political stability. See Southeast Asia Collective Defense Treaty (September
589
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Saguisag vs. Ochoa, Jr.
required ratification and implementing legislation, with additional
agreements to implement the NATO-SOFA.172
The 1951 MDT provides for an alliance — that both nations would support one
another if either the Philippines or the U.S. would be attacked by an external
party.173 It states that each party shall either, separately or jointly, through
mutual aid, acquire, develop and maintain their capacity to resist armed
attack.174 It provides for a mode of consultations to determine the 1951 MDT’s
appropriate implementation measures and when either of the parties determines
that their territorial integrity, political independence, or national security is
threatened by armed attack in the Pacific.175 An attack on either party will be
acted upon in accordance with their constitutional processes and any armed attack
on either party will be brought to the attention of the United Nations for
immediate action.176
The accord defines the meaning of an armed attack as including armed attacks
by a hostile power on a metropolitan area of either party, on the island territories
under their jurisdiction in the Pacific, or on their armed forces, public vessels, or
aircrafts in the Pacific.177The U.S. government guar-
_______________
8, 1954), 209 U.N.T.S. 28-30, available
at https://treaties.un.org/doc/Publication/UNTS/Volume%20209/v209.pdf.
172 For example, the U.S. entered into supplementary agreement with the
Federal Republic of Germany (which acceded to the NATO-SOFA in 1963) with
respect to allied forces stationed permanently in Germany, see Fleck, Dieter, The
Handbook of the Law on Visiting Forces, p. 353 (2001).
173 The 1951 MDT states the Parties’ objective “[d]esiring to declare publicly
and formally their sense of unity and their common determination to defend
themselves against external armed attack, so that no potential aggressor could be
under the illusion that either of them stands alone in the Pacific Area.”
174 1951 MDT, Article II.
175 Id., Article III.
176 Id., Article IV.
177 Id., Article V.
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590 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
anteed to defend the security of the Philippines against external aggression
but not necessarily against internal subversion. The treaty expressly stipulates
that its terms are indefinite and would last until one or both parties terminate the
agreement by a one-year advance notice.178 The treaty subsequently became the
basis for an annual joint exercise, known as Balikatan, between the Philippines
and the U.S.179
On the whole, the 1951 MDT embodied an alliance and defense agreement,
focused as it is on joint action and defenses against armed external attacks. It made
no provision for bases, troops, or facilities which the 1947 MBA contained and
which lapsed when the MBA’s term expired.
V.C(3) The 1998 Visiting Forces Agreement
The 1998 VFA came after the expiration of the 1947 MBA in 1991 and opened
a limited window for the presence of American troops in the Philippines. It was
entered into during the era when the U.S. was envisioning “access” as a new
approach in maintaining its presence in Southeast Asia. Instead of permanent
bases, the approach sought bilateral arrangements — like those with Singapore —
for training, exercises, and interoperability to allow for uninterrupted
forward deployment in the Asian region; their continued presence in the region
assures faster response to developments in flash points in the eastern
hemisphere.180
_______________
178 Id., Article VIII.
179 Lim v. Executive Secretary, 430 Phil. 555, 562; 380 SCRA 739, 742-743
(2002), which states: These so-called “Balikatan” exercises are the largest
combined training operations involving Filipino and American troops. In theory,
they are a simulation of joint military maneuvers pursuant to the Mutual Defense
Treaty, a bilateral defense agreement entered into by the Philippines and the
United States in 1951.
180 See Moderno, H. Marcos, “A Decade of US Troops in Mindanao: Revisiting
the Visiting Forces Agreement (2),” MindaNews,
591
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Saguisag vs. Ochoa, Jr.
In line with the American approach, the 1998 VFA allows the rotational
presence of U.S. military forces and their operations anywhere in the Philippines
for a temporary but undefined length of time to train and inter-operate with the
Philippine armed forces and to use their facilities. The Philippines retains
jurisdiction over criminal cases, including capital offenses, involving U.S. troops.181
In BAYAN v. Zamora,182 the Court held that although the agreement did not
entail the permanent basing of a foreign military force, it required a treaty because
Article XVIII, Section 25 of the Constitution covers not only the presence of bases
but also the presence of “troops.”183 As a treaty, the 1998 VFA required the
concurrence of the Senate pursuant to Article VII, Section 21 of the Constitution.
_______________
April 24, 2012, available at http://www.mindanews.com/special-
reports/2012/04/24/a-decade-of-us-troops-in-mindanao-revisiting-the-visiting-
forces-agreement-2/.
181 1998 VFA, Article V.
182 Bayan (Bagong Alyansang Makabayan) v. Zamora, supra note 69.
183 Id., at p. 652; p. 483, which states:
On the whole, 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.
Undoubtedly, 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 of Section
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, as will be further discussed hereunder.
 592
592 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
The Court also held that the Philippines is bound to accept an official
declaration by the U.S. to satisfy the requirement that the other contracting party
must recognize the agreement as a treaty.184It noted that the Vienna Convention
on the Law of Treaties leaves each state free to choose its form of giving consent to
a treaty.185
V.D. The EDCA
As heretofore outlined, the U.S. adopted the “Pivot to Asia” strategy beginning
2009 under the administration of President Barack Obama. In the
article Explaining the U.S. Pivot to Asia, Kurt Campbell and Brian Andrews
enumerated six key efforts under the U.S.’s “Pivot to Asia” policy, namely:
alliances; improving relationships with emerging powers; economic statecraft;
engaging with multi-lateral institutions; support for universal values; and
increasing military presence.186
On military presence, the operative word is “presence”: the forward
deployment of U.S. military forces in Asia.187 The EDCA perfectly fits the
American strategy as it allows the prepositioning of equipment and
supplies in agreed locations to enhance the U.S.’s “development of a geo-
_______________
184 Id., at p. 657; p. 488, which states:
This Court is of the firm view that 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, the United States of America in this
case, to submit the VFA to the United States Senate for concurrence pursuant to
its Constitution, is to accord strict meaning to the phrase.
185 Bernas, Joaquin, supra note 144 at pp. 1400-1401.
186 See Campbell, Kurt & Andrews, Brian, Explaining the US ‘Pivot’ to Asia,
pp. 3-8, August 2013, Chatham House, available
at https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Amer
icas/0813pp_pivottoasia.pdf.
187 Id., at p. 8.
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graphically dispersed, politically sustainable force posture in the
region.”188
The EDCA was signed on April 28, 2014, in Manila, by Philippine Defense
Secretary Voltaire Gazmin, and U.S. Ambassador to the Philippines Philip
Goldberg, in time for the official state visit by U.S. President Barack Obama. The
10-year accord is the second military agreement between the U.S. and the
Philippines (the first being the 1998 VFA) since American troops withdrew from
its Philippines naval base in 1992.
The agreement allows the U.S. to station troops and operations on Philippine
territory without establishing a permanent base189 and with the stipulation that
the U.S. is not allowed to store or position any nuclear weapons on Philippine
territory.190
The EDCA was entered into for the following purposes:
1. This Agreement deepens defense cooperation between the Parties and
maintains and develops their individual and collective capacities, in
furtherance of Article II of the MDT, which states that “the Parties
separately and jointly by self-help and mutual aid will maintain and
develop their individual and collective capacity to resist armed attack,” and
within the context of the VFA. This includes:
(a) Supporting the Parties’ shared goal of improving interoperability of
the Parties’ forces and for the Armed Forces of the Philippines (“AFP”),
addressing short-term capabilities gaps; promoting long-term
modernization, and helping maintain and develop additional maritime
security, maritime domain awareness, and humanitarian assistance and
disaster relief capabilities; and
_______________
188 Id.
189 EDCA, Preamble, par. 5.
190 Id., Article IV, par. 6.
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594 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
(b) Authorizing access to Agreed Location in the territory of the Philippines
by United States forces on a rotational basis as mutually determined by the
Parties.
2. In furtherance of the MDT, the Parties mutually agree that this Agreement
provides the principal provisions and necessary authorizations with respect to
Agreed Locations.
3. The Parties agree that the United States may undertake the following
types of activities in the territory of the Philippines in relation to its access to and
use of Agreed Locations: security cooperation exercises; joint and combined
training activities; humanitarian assistance and disaster relief activities; and such
other activities as may be agreed upon by the Parties.191
To summarize, the EDCA has two main purposes:
 First, it is intended as a framework for activities for defense cooperation in
accordance with the 1951 MDT and the 1998 VFA.
Second, it grants to the U.S. military the right to use certain identified
portions of the Philippine territory referred to in the EDCA as Agreed
Locations. This right is fleshed out in the EDCA when the agreement identifies the
privileges granted to the US in bringing in troops and facilities, in constructing
structures, and in conducting activities.192
The EDCA is effective for 10 years, unless both the U.S. and the Philippines
formally agree to alter it.193 The U.S. is bound to hand over any and all facilities
in the “Agreed Locations” to the Philippine government upon the termination of
the Agreement.
In terms of contents, EDCA may be divided into two:
_______________
191 Id., Article I.
192 Id., Article III.
193 Id., Article XII(4).
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Saguisag vs. Ochoa, Jr.
First, it reiterates the purposes of the 1951 MDT and the 1998 VFA in that it
affirms the continued conduct of joint activities between the U.S. and the
Philippines in pursuit of defense cooperation.
Second, it contains an entirely new agreement pertaining to Agreed
Locations, the right of the U.S. military to stay in these areas and conduct
activities which may not be imbued with mutuality of interests since they do not
involve defense cooperation.
The latter provides support for two interrelated arguments that I will forward
in this Opinion. First, the EDCA refers to the presence of foreign military bases,
troops, and facilities in this jurisdiction. Second, the EDCA is not a mere
implementation of, but goes beyond, the 1951 MDT and the 1998 VFA. It is an
agreement that introduces new terms and obligations not found in the 1951 MDT
and the 1998 VFA, and thus requires the concurrence of the Senate.
V.D(1) Does the EDCA involve the entry
of military bases to the Philippines as en-
visioned under Article XVIII, Section 25?
V.D(1)(i) The Concept of a Foreign Military Base
A reading of the EDCA will reveal that it pertains to the presence in this
country of a foreign military base or the modern equivalent of one. While Article
XVIII, Section 25 mentions no definition of what a foreign military base, troops, or
facility is, these terms, at the time the 1987 Constitution was drafted, carried a
special meaning. In fact, this meaning was the compelling force that convinced the
framers to include Article XVIII, Section 25 in the 1987 Constitution.
More specifically, when the framers of the 1987 Constitution referred to foreign
military bases, they had in mind the
596
596 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
then existing 1947 MBA.194 This is apparent from the text of the provision itself
which makes direct reference to the treaty, as well as from the exchanges of the
framers of the 1987 Constitution prior to their vote on the proposed provision.195
In construing the meaning of statutes and of the Constitution, one aim is to
discover the meaning that the framers attached to the particular word or phrase
employed.196 The pertinent statute or provision of the Constitution must then be
“construed as it was intended to be understood when it was passed.”197
Thus, a proper interpretation of the meaning of foreign military bases must
take into account how it was understood by the framers in accordance with how
the 1947 MBA established U.S. military bases in the Philippines. It is in this
technical and precise meaning that the term military base was used. It is this kind
of military bases that Article XVIII, Section 25 intends to cover, subject to specific
qualifications.
Hence, the concept of military bases as illustrated in the 1947 MBA should be
taken into account in ascertaining whether the EDCA contemplates the
establishment of foreign military bases. This reality renders a comparison of the
1947 MBA and the EDCA appropriate.
_______________
194 V Record, Constitutional Commission, p. 105. (October 11, 1986), which
reads:
Mr. Benntagen: Point of information. I have with me a book of Patricia M.
Paez, The Bases Factor, the authority on US relations. And reference to the
agreement reads this way: Agreement between the Republic of the Philippines and
the United States of America concerning military bases.
Mr. Azcuna: That is the official title. Why do we not use that? After the
expiration of the agreement x x x.
195 Id.
196 Alcantara, Samson, Statutes, p. 58 (1997 ed.); see also Agpalo,
Ruben, Statutory Construction, 6th ed., p. 282.
197 Ernesto v. Court of Appeals, 216 Phil. 319, 327-328; 131 SCRA 347, 356
(1984).
597
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 To clarify this position, it is not that the framers of the 1987 Constitution had
in mind the specific existing foreign military bases under the 1947 MBA when they
drafted Article XVIII Section 25. Such a position unjustifiably assumes that the
framers lacked foresight and merely allowed themselves to be solely limited by the
existing facts.
Rather, my position is that it is the concept of a foreign military
base under the 1947 MBA, and not the specific military bases listed in its
Annexes, that should be determinative of what the Constitution intends to
cover. The foreign military base concept should necessarily be adjusted,
too, to take into account the developments under the new U.S. “Pivot to
Asia” strategy.
V.D(1)(ii) EDCA and the 1947 MBA Compared
A first material point to note is that the obligations under the EDCA are
similar to the obligations found in the 1947 MBA. To support this view, I
present below a side by side comparison of the relevant provisions of the EDCA
and the 1947 MBA.
While the 1947 MBA grants broader powers to the U.S., due perhaps to the
geopolitical context under which the agreement was forged (the 1947 MBA had an
international, in contrast with EDCA’s Asian, focus), the EDCA and the 1947 MBA
essentially pursue the same purpose — the identification of portions of
Philippine territory over which the U.S. is granted certain rights for its
military activities.
These rights may be categorized into four:
(1) the right to construct structures and other facilities for the proper
functioning of the bases;
(2) the right to perform activities for the defense or security of the bases or
Agreed Locations;
(3) the right to preposition defense equipment, supplies and materiel; and
(4) other related rights such as the use of public utilities and public services.
Only those who refuse to see cannot discern these undeniable parallelisms.
602
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598 Saguisag vs. Ochoa, Jr.

598 SUPREME COURT REPORTS ANNOTATED
Further, even independently of the concept of military bases under the 1947
Saguisag vs. Ochoa, Jr. MBA, the provisions of the EDCA itself provide a compelling argument that it
seeks to allow in this country what Article XVIII, Section 25 intends to regulate.
There exists no rigid definition of a military base. However, it is a term used
in the field of military operations and thus has a generally accepted
connotation. The U.S. Department of Defense (DoD) Dictionary of Military and
599 Associated Terms defines a base as “an area or locality containing installations
VOL. 779, JANUARY 12, 2016 599 which provide logistic or other support”; home carrier.198
Under our laws, we find the definition of a military base in Presidential Decree
Saguisag vs. Ochoa, Jr. No. 1227 which states that a military base is “any military, air, naval, coast guard
reservation, base, fort, camp, arsenal, yard, station, or installation in the
Philippines.”199 A military base connotes the presence, in a relatively permanent
degree, of troops and facilities in a particular area.200
In 2004, the U.S. DoD released Strengthening U.S. Global Defense Posture, a
600 report to U.S. Congress about the renewed U.S. global position.201 The U.S. DoD
600 SUPREME COURT REPORTS ANNOTATED redefined and reclassified their military bases in three categories:
_______________
Saguisag vs. Ochoa, Jr.
198 US Department of Defense, Joint Publication 1-02, Department of Defense
Dictionary of Military and Associated Terms, p. 21 (2015), available at
<http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf>.
199 Presidential Decree No. 1227, Section 2.
601
200 IV Record, Constitutional Commission, p. 86 (September 18, 1986):
VOL. 779, JANUARY 12, 2016 601 Fr. Bernas: By the term ‘bases,’ were we thinking of permanent bases?
Saguisag vs. Ochoa, Jr. Mr. Maambong: Yes.
 201 US DoD, Strengthening U.S. Global Defense Posture: Report to Congress, Saguisag vs. Ochoa, Jr.
U.S. Department of Defense, pp. 10-11 (2004). Available
at http://www.dnizhawaii.org/wp-content/uploads/2008/12/global_posture.pdf. The third classification of military bases is a Cooperative Security Location,
described as follows:
603 Cooperative Security Location (CSL)
VOL. 779, JANUARY 12, 2016 603
Saguisag vs. Ochoa, Jr. Cooperative security locations will be facilities with little or no permanent
U.S. presence. Instead they will be maintained with periodic service,
contractor, or host-nation support. CSLs will provide contingency access
Main Operating Base (MOB) and be a focal point for security cooperation activities. A current example
of a CSL is in Dakar, Senegal, where the U.S. Air Force has negotiated
Main operating bases, with permanently stationed combat forces and contingency landing, logistics, and fuel contracting arrangements, and
robust infrastructure, will be characterized by command and control which served as a staging area for the 2003 peace support operation in
structures, family support facilities, and strengthened force protection Liberia.204
measures. Examples include Ramstein Air Base (Germany), Kadena Air
Base (Okinawa, Japan), and Camp Humphreys (Korea). The GDPR emphasized that the U.S.’s plan is to establish a network of
FOSs and CSLs in Asia-Pacific to support the global war on terrorism and
Forward Operating Site (FOS) to provide multiple avenues of access for contingency operations. These
facilities serve to expand training opportunities for the U.S. and the host-country.
Forward operating site will be an expandable “warm facilities” maintained FOSs and CSLs allow U.S. forces to use these areas in times of crisis
with a limited US military support presence and while avoiding the impression of establishing a permanent presence.205 Notably,
possibly prepositioned equipment. FOSs will support rotational rather these access agreements are less expensive to operate and maintain than
than permanently stationed forces and be a focus for bilateral and regional MOBs.206 Moreover, FOSs and CSLs allow overseas military presence with a
training. Examples include the Sembawang port facility in Singapore and lighter footprint.207
Soto Cano Air Base in Honduras. To go back to the EDCA, it notably allows the U.S. to use the Agreed Locations
for the following activities: “training,
The following are the key characteristics of an FOS: _______________
First, an FOS is an expandable/scalable facility. Andrew Krepinevich and
Robert Work noted that an FOS can support both small and large forces, and can 204 US DoD, supra note 201.
be readily expanded to serve as expeditionary or campaign bases should a crisis 205 Charbonneau, Bruno and Cox, Wayne, Locating Global Order: American
erupt nearby.202 Power and Canadian Security after 9/11, p. 65 (2010).
Second, the facility is maintained or “kept warm” by limited U.S. military 206 Pettyjohn, Stacie, “Minimalist International Interventions: For the Future
support personnel or U.S. military contractors. It hosts rotational rather than US Overseas Presence, Access Agreement Are Key” Summer 2013, RAND
permanently stationed forces. An FOS may also house prepositioned equipment. Corporation, available at http://www.rand.org/pubs/periodicals/rand-
Finally, an FOS facility does not need to be owned by the U.S. (i.e., the review/issues/2013/summer/for-the-future-us-overseaspresence.html.
Sembawang Port Facility and the Paya Lebar Airfield in Singapore). FOSs are 207 Id., at p. 2.
generally bases that support forward-deployed rather than forward-
based forces.203
_______________ 605
VOL. 779, JANUARY 12, 2016 605
202 Krepinevich, Andrew and Work, Robert, A New Global Defense Posture for Saguisag vs. Ochoa, Jr.
the Second Transoceanic Era, p. 19 (2007).
203 Id., at p. 18. transit, support and related activities, refueling of aircraft; bunkering of vessels;
temporary maintenance of vehicles, vessels, and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
604 supplies, and materiel; deploying forces and materiel and such other activities as
604 SUPREME COURT REPORTS ANNOTATED the Parties may agree.”208
 In order to carry out these activities, the EDCA allows U.S. military
personnel to enter and remain in Philippine territory. It grants the U.S. the right to
construct structures and assemblies.209 It also allows the U.S. to preposition defense
equipment, supplies and materiel.210 The U.S. personnel may also use the Agreed
Locations to refuel aircraft and bunker vessels.211
Stockpiling of military materiel in the Philippines is explicitly permitted under
the following EDCA provisions:
1. Article III, par. 1: The activities allowed on the agreed locations
include: (i) the prepositioning of equipment, supplies, and materiel; (ii)
deploying forces and materiel; and (iii) such other activities as the Parties
may agree.
2. Article IV, par. 1: U.S. forces are allowed to preposition and
store defense equipment, supplies, material (“prepositioned
materiel”), including, but not limited to, humanitarian assistance and
disaster relief equipment, supplies, and materiel, at agreed locations.
3. Article IV, par. 3: The prepositioned materiel is for the
exclusive use of U.S. forces and full title shall belong to the U.S.
_______________
208 EDCA, Article III, Section 1.
209 Id., Article V, Sec. 2.
210 Id., Article IV, Sec. 1.
211 Id.
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606 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
4. Article IV, par. 4: The U.S. forces and U.S. contractors shall
have unimpeded access to the agreed locations for all matters relating
to the prepositioning and storage of defense equipment, supplies,
and materiel, including delivery, management, inspection, use,
maintenance, and removal of such equipment, supplies and
materiel.
Notably, neither the 1951 MDT nor the 1998 VFA authorized
stockpiling. The 1951 MDT focused on developing the Philippines and the U.S.’s
capacity to resist an armed attack while 1998 VFA focused on the entry and exit
of US troops in the country. No provision in either treaty specifically allows
stockpiling of military materiel.
In sum, the Agreed Locations mentioned in the EDCA are areas where the U.S.
can perform military activities in structures built by its personnel. The extent of
the U.S.’ right to use of the Agreed Locations is broad enough to include even
the stockpiling of weapons and the shelter and repair of vessels over which the U.S.
personnel has exclusive control. Clearly, this is a military base as this term is
ordinarily understood.
Further, as we held in Bayan, Article XVIII, Section 25 refers to three different
situations: the presence of foreign military bases, troops, or facilities.212 Even
assuming that the EDCA is not a basing agreement, it nevertheless involves
the deployment of troops and facilities in Philip-
_______________
212 BAYAN (Bagong Alyansang Makabayan) v. Zamora, supra note 69 at p.
653; p. 482.
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pine soil. As I have already stated, the EDCA allows U.S. forces to enter and
remain in the Philippines. It defines U.S. forces to include U.S. military and
civilian personnel and U.S. Armed Forces property, equipment, and
materiel.213 The EDCA itself provides that the U.S. can deploy forces and materiel
in the Agreed Locations.214
In like manner x x x such that, the provision contemplates three different
situations — a military treaty the subject of which could be either (a) foreign bases,
(b) foreign troops, or (c) foreign facilities — any of the three standing alone places
it under the coverage of Section 25, Article XVIII.
That the EDCA allows this arrangement for an initial period of 10 years, to
continue automatically unless terminated,215 is further proof that it pertains to the
presence in Philippine soil of foreign military bases, troops, and facilities on a more
or less permanent basis.
Note, at this point, that the Senators, during the ratification of the 1998 VFA,
observed that it only covers temporary visits of U.S. troops and personnel in the
country. These Senators gave their consent to the 1998 VFA on the
knowledge that the U.S. forces’ stay in the country may last only up to three
weeks to six months per batch.216
This temporary stay of U.S. forces in the Philippines under the 1998 VFA
means that it does not cover, or approve of, a more permanent stay of US forces and
their equipment in the Philippines. Significantly, this is the key characteristic of
the Agreed Locations in the EDCA. For, if the EDCA had not envisioned the stay
of U.S. forces and equipment in the Agreed Locations in the Philippines for a period
longer than envisioned in the 1998 VFA, it would not have added obligations
regarding the storage of their equipment and materiel. The more permanent
nature of the EDCA, in contrast to the 1998 VFA,
_______________
213 EDCA, Article II, Section 2.
214 Id., Article III, Sec. 1.
215 Id., Article XII, Sec. 4.
216 The senators argued the precise length of time but agreed that it would
not exceed six months. See Senate deliberations on P.S. Res. No. 443 – Visiting
Forces Agreement, May 17, 1999, Record and Archives Service, Vol. 133, pp. 23- rangements provided under the 1947 MBA for the presence of U.S. bases,
25. troops and facilities also ended, leaving only the 1951 MDT and its general
terms in place.
Under this situation, the detailed arrangements that expired with the 1947
608 MBA were not carried over to the 1951 MDT as this treaty only generally provided
608 SUPREME COURT REPORTS ANNOTATED for the defense and alliance relationship between the U.S. and the Philippines.
Thus, there were no specific policies on military bases, troops, and facilities that
Saguisag vs. Ochoa, Jr. could be implemented and operationalized by subsequent executive agreements on
the basis of the MDT.
indicates a change in the tenor of the agreement in the EDCA, one that does In particular, the terms of the 1947 MBA that had expired and had not
not merely implement the 1998 VFA. been renewed cannot be deemed carried over to the 1951 MDT. If any such
future agreements would be made after the effectivity of the 1987
V.D(2) Does the EDCA Merely Implement Constitution, then such agreements would be governed by Article XVIII,
the 1951 MDT? Section 25 of the new Constitution.
Significantly, when the 1987 Constitution and its Article XVIII, Section 25 took
This question responds to the ponencia’s argument that the EDCA can be effect, no absolute prohibition against the introduction of new U.S. bases, troops,
embodied in an executive agreement because it merely provides implementing and facilities was put in place. In fact the 1951 MDT then still existed as a general
details for the 1951 MDT.217 defense alliance of the Philippines and the U.S. against armed attack by third
parties. But the introduction of military bases or their equivalent, of troops, and of
V.D(2)(i) The Effects of the Expiration military facilities into the Philippines can now only take place by way of a treaty
of the 1947 MBA and of the Adoption of concurred in by the Senate.
the 1987 Constitution
V.D(2)(ii) The 1951 MDT examined in light
The sequence of events relating to American bases, troops, and facilities in the of the EDCA
Philippines that took place since Philippine independence, is critical in responding
to the question in caption. It should be remembered that as a condition under the That the EDCA is purely an implementation of the 1951 MDT and does not
Tydings-McDuffie Act for the grant of Philippine independence, the Philippines need to be in the form of a treaty, is not tenable for two reasons.
was bound to negotiate with the U.S. for bases in the Philippines, resulting in the First, the EDCA grants rights and privileges to the U.S. that go well beyond
1947 MBA. what is contemplated in the 1951 MDT and the 1998 VFA.
This agreement contained the detailed terms relating to the existence and
operation of American bases and the presence of American forces and facilities in
the Philippines. As its title denotes, the 1951 MDT is the treaty providing for 610
alliance and mutual defense against armed attack on either country; it only
610 SUPREME COURT REPORTS ANNOTATED
generally contained the defense and alliance relationship between the
Philippines and the U.S. Saguisag vs. Ochoa, Jr.
In 1987, the Philippines adopted a new Constitution. This Charter directly
looked forward to the expiration of the 1947 MBA and provided for the terms under Second, even the assumptions that the EDCA is indeed a mere
which foreign military bases, troops, and facilities would thereafter be allowed into implementation of both the earlier 1951 MDT and the 1998 VFA, this assumption
the Philippines. The 1947 MBA expired in 1991 and no replacement treaty took its by no means provides an argument in favor of treating the EDCA as an executive
place; thus, all the detailed ar- agreement. Notably, the 1998 VFA is also recognized as an implementation of
_______________ the 1951 MDT yet the Government deemed it necessary to have it embodied in a
separate treaty concurred in by the Senate.
217 Ponencia, pp. 375-402. On the first argument, an analysis of the 1951 MDT, the 1998 VFA, and the
EDCA reveals that the EDCA is a stand-alone agreement.
The 1951 MDT is a treaty intended for the collective defense of its signatory
609 countries (i.e., the U.S. and the Philippines) against external armed attack. This
is apparent from its declaration of policies which states, among others, that the
VOL. 779, JANUARY 12, 2016 609
U.S. and the Philippines have agreed to the MDT in pursuit of their desire to —
Saguisag vs. Ochoa, Jr.
 x x x declare publicly and formally their sense of unity and their
common determination to defend themselves against external armed
attack, so that no potential aggressor could be under the illusion that
either of them stands alone in the Pacific area.218
The rest of the text of the 1951 MDT consistently highlights this goal.
Its Article II states that the parties shall “separately and jointly by self-help and
mutual aid maintain and develop their individual and collective capacity to resist
armed attack.” Article III provides that the parties shall “consult together”
regarding the implementation of the MDT whenever in their opinion the
“territorial integrity, political independence or security of either of the parties is
threatened by external armed attack in the Pacific.” Article IV declares that an
armed attack in the Pacific area on either of the par-
_______________
218 1951 MDT, Preamble, par. 3.
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ties would be dangerous to each other’s peace and safety and thus they would
act to meet the common danger. Article V then proceeds to define an armed attack
as to include an armed attack on “the metropolitan territory of either parties or on
the island territories under its jurisdiction in the Pacific Ocean, its armed forces,
public vessels and aircrafts in the Pacific.”
This Court has had occasion to explain the nature of the 1951 MDT. In Lim v.
Executive Secretary,219 we said —
x x x The MDT has been described as the core of the defense
relationship between the Philippines and its traditional ally, the United
States. Its aim is to enhance the strategic and technological capabilities of
our armed forces through joint training with its American counterparts
x x x. [Emphasis supplied]
Thus, the essence of the 1951 MDT is the conduct of joint activities by the U.S.
and the Philippines in accordance with the dictates of collective defense against an
attack in the Pacific. This is a focus that the EDCA lacks.
V.D(2)(iii) The 1951 MDT Compared with Other
Defense Alliance Agreements
Our military obligations to the U.S. under the 1951 MDT are (1) to maintain
and develop our military capacity to resist armed attack, and (2) to recognize that
an armed attack against the U.S. in the Pacific is an attack on the Philippines and
to meet the common danger in accordance with our constitutional process. The
relevant provisions read:
Article II. In order more effectively to achieve the objective of this
Treaty, the Parties separately and jointly by self-help and mutual aid
will maintain and develop
_______________
219 Supra note 179 at pp. 571-572; p. 752.
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612 SUPREME COURT REPORTS ANNOTATED
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their individual and collective capacity to resist armed attack.
Article IV. Each Party recognizes that an armed attackin the
Pacific area on either of the Parties would be dangerous to its own peace
and safety and declares that it would act to meet the common dangers
in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall
be immediately reported to the Security Council of the United Nations.
Such measures shall be terminated when the Security Council has taken
the measures necessary to restore and maintain international peace and
security.
Article V. For purposes of ARTICLE IV, an armed attack on either
of the Parties is deemed to include an armed attack on the metropolitan
territory of either of the Parties, or on the island territories under its
jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft
in the Pacific.
(Fortunately, the limits of the 1951 MDT have not been tested in actual
operation since neither the Philippines nor the U.S. has as yet been the subject of
an armed attack in the Pacific region.)
In relating the 1951 MDT to the EDCA, I glean from the ponencia the intent
to seize the term “mutual aid” in developing the contracting parties’ collective
capacity to resist an armed attack, as basis for the US to establish a military base
or a military facility or station military troops in the Philippines.220 This reading,
however, would be a novel one in the context of American agreements with other
Asian countries with their own alliance and MDTs with the U.S.
_______________
220 Ponencia, pp. 378-383.
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 Note that Article II of the RP-U.S. 1951 MDT is similar to the following
provisions in other MDTs:
(1) The 1953 US-South Korean MDT
Article II
The Parties will consult together whenever, in the opinion of either of
them, the political independence or security of either of the Parties is
threatened by external armed attack. Separately and jointly, by self-help
and mutual aid, the Parties will maintain and develop appropriate
means to deter armed attack and will take suitable measures in
consultation and agreement to implement this Treaty and to further its
purposes.221
(2) The 1954 US-Taiwan (Republic of China) MDT
Article II
In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist armed
attack and communist subversive activities directed from without against
their territorial integrity and political stability.222
(3) the 1960 US-Japan Treaty of Mutual Co-operation and Security
_______________
221 Mutual Defense Treaty, U.S.-South Korea, October 1, 1953, 238 U.N.T.S.
202, 204, available
at https://treaties.un.org/doc/Publication/UNTS/Volume%20238/v238.pdf.
222 Mutual Defense Treaty, U.S.-Taiwan, December 10, 1954, 248 U.N.T.S.
214, available
at https://treaties.un.org/doc/Publication/UNTS/Volume%20248/v238.pdf.
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614 SUPREME COURT REPORTS ANNOTATED
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Article III
The Parties, individually and in cooperation with each other, by means
of continuous and effective self-help and mutual aid will maintain and
develop, subject to their constitutional provisions, their capacities to
resist armed attack.223
With little variance,224 these articles are essentially identical to Article II of
the RP-U.S. 1951 MDT.
But notably, despite the existence of the above mentioned provisions, all three
treaties also saw the need to include a separate provision explicitly granting the
U.S. the right to access and use of areas and facilities of the other contracting
party. Thus:
Article IV
(US-Korea)
The Republic of Korea grants, and the United States of America
accepts, the right to dispose United States land, air and sea forces
in and about the territory of the Republic of Korea as determined by
mutual agreement.225
_______________
223 Treaty of Mutual Cooperation and Security, U.S.-Japan, January 19,
1960, 373 U.N.T.S. 188, available
at https://treaties.un.org/doc/Publication/UNTS/Volume%20373/v373.pdf.
224 The US-Taiwan MDT states that self-help and mutual aid will be utilized
by the Parties to resist not only an armed attack but also “communist subversive
activities directed against Taiwan’s territorial integrity and political stability.”
Moreover, the US-Korean Treaty adds the phrase “whenever, in the opinion of
either of them, the political independence or security of either of the Parties is
threatened by external armed attack” and uses the phrase “means to deter [an]
armed attack”) instead of “maintain and develop x x x their capacities
to resist armed attack.”
225 Mutual Defense Treaty, U.S.-South Korea, supra note 221.
615
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Article VII
(US-Taiwan)
The Government of the Republic of China (Taiwan) grants, and the
Government of the United States of America accepts, the right to dispose
such United States land, air and sea forces in and about Taiwan
and the Pescadores as may be required for their defense, as determined
by mutual agreement.226
Article VI
(US-Japan)
For the purpose of contributing to the security of Japan and the
maintenance of international peace and security in the Far East, the
United States of America is granted the use by its land, air and
naval forces of facilities and areas in Japan.
The use of these facilities and areas as well as the status of United
States armed forces in Japan shall be governed by a separate agreement,
replacing the Administrative Agreement under Article III of the Security
Treaty between Japan and the United States of America, signed at Tokyo
on February 28, 1952, as amended, and by such other arrangements as may
be agreed upon.227

These three articles do not have any counterpart in the RP-US 1951 MDT.
Understandably perhaps, counterpart provisions are not in the 1951 MDT as our
commitment to grant the U.S. use and access to areas and facilities in the
Philippine territory was embodied in an earlier agreement, the 1947 MBA (which,
however, expired, thus ending the use and access grants to the U.S. and its armed
forces).
In my view, the implication of the above quoted provisions in the US-South
Korea, US-Taiwan, and US-Japan treaties
_______________
226 Mutual Defense Treaty, U.S.-Taiwan, supra note 222.
227 Treaty of Mutual Cooperation and Security, U.S.-Japan, supra note 223.
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(on “mutual aid”) is clear: the obligation to provide mutual aid under
Article II of the RP-US 1951 MDT (and its counterpart
provisions) does not include the obligation to allow the entry and the
stationing of U.S. troops or the establishment of military bases or
facilities.
In light particularly of the constitutional developments in 1987, the 1951 MDT
cannot be invoked as an umbrella agreement that would legally justify the grant
to the U.S. of entry, access, and use of Philippine-owned areas or facilities without
Senate concurrence. These activities, which the EDCA seeks to do allegedly
pursuant to the 1951 MDT, do not fall within the purview of our commitments
under the earlier treaty.
V.D(3) Does the EDCA Merely Implement the
1998 VFA?
Is the EDCA merely an agreement implementing the 1998 VFA which already
allows the limited entry of U.S. military troops and the construction of facilities?
The quick and short answer to the above question is — No, the EDCA does not
implement the 1998 VFA as the EDCA in fact provides a wider arrangement than
the 1998 VFA with respect to the entry of military bases, troops, and facilities
into the Philippines. A naughty view is that the 1998 VFA should form part of the
EDCA and not the other way around. Another reality, based on the treaty-
executive agreement distinctions discussed above, is that the EDCA introduces
new arrangements and obligations to those existing under the 1998 VFA;
hence, the EDCA should be in the form of a treaty.
V.D(3)(i) The 1998 Visiting Forces Agreement
The Philippines’ primary obligation under the 1998 VFA, is to facilitate the
entry and departure of U.S. personnel in rela-
617
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tion with “covered activities”;228 it merely defines the treatment of U.S.
personnel visiting the Philippines; hence, its name.229 It is in fact a counterpart of
the NATO-SOFA that the U.S. forged in Europe.
The Preamble of the VFA defines its objectives — to govern the terms of visits
of “elements of the United States Armed Forces” to the Philippines, while the body
of the agreement contains the agreed conditions. To quote from the relevant
provisions of the 1998 VFA:
VISITING FORCES AGREEMENT
Preamble
The Government of the Republic of the Philippines and the Government
of the United States of America,
Reaffirming their faith in the purposes and principles of the Charter of
the United Nations and their desire to strengthen international and
regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of
August 30, 1951;
Noting that from time to time elements of the United States
armed forces may visit the Republic of the Philippines;
_______________
228 1998 VFA, Article III(1).
229 BAYAN (Bagong Alyansang Makabayan) v. Zamora, supra note 69. On
the whole, 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.
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618 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Considering that cooperation between the Republic of the Philippines
and the United States promotes their common security interests;
Recognizing the desirability of defining the treatment of United States
personnel visiting the Republic of the Philippines;
 Have agreed as follows:
Article I: Definitions
As used in this Agreement, “United States personnel” means United
States military and civilian personnel temporarily in the Philippines in
connection with activities approved by the Philippine
Government. x x x
xxxx
Article III: Entry and Departure
1. The Government of the Philippines shall facilitate the
admission of United States personnel and their departure from the
Philippines in connection with activities covered by this Agreement.
xxx
As the ponencia correctly observed, the 1998 VFA itself does not specify what
“activities” would allow the entry of U.S. troops into the Philippines. The parties
left this open and recognized that the activities that shall require the entry of U.S.
troops are subject to future agreements and the approval by the Philippine
Government.
How this approval, however, will be secured is far from certain. What is certain
is that beyond the restrictive “visits” that the 1998 VFA mentions, nothing else is
said under the express terms of the Agreement.
Harking back to the 1947 MBA and its clear and certain terms, what comes
out boldly is that the 1998 VFA is not an agreement that covers “activities”
in the way that the 1947 MBA did; it is simply an agreement regulating the
status of and the treatment to be accorded to U.S.
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armed forces personnel and their aircraft and vehicles while visiting
the Philippines. The agreement itself does not authorize U.S. troops to
permanently stay in the Philippines nor authorize any activity related to the
establishment and the operation of bases, as these activities had been defined
under the 1947 MBA.
As discussed under the treaty-executive agreement distinctions above, if
indeed the activities would be in line with the original intent of the 1998 VFA, then
an executive agreement would suffice as an implementing agreement. On the other
hand, if the activity would be a modification of the 1998 VFA or would be beyond
its terms and would entail the establishment of a military base or facility or their
equivalent, and the introduction of troops, then, a treaty duly concurred in by the
Senate would be the appropriate medium of the U.S.-Philippines agreement.
This Court has had the opportunity to examine the 1998 VFA in BAYAN230 and
described the agreement in this wise —
On the whole, 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.
In Lim v. Executive Secretary,231 this Court further explained:
The VFA provides the “regulatory mechanism” by which “United
States military and civilian personnel [may visit] temporarily in
the Philippines in connection with activities approved by the Phil-
_______________
230 Id.
231 Supra note 179 at p. 572; p. 752.
620
620 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
ippine Government.” It contains provisions relative to entry and
departure of American personnel, driving and vehicle registration, criminal
jurisdiction, claims, importation and exportation, movement of vessels and
aircraft, as well as the duration of the agreement and its termination.
[Emphasis supplied]
The 1998 VFA allows the entry of U.S. military personnel to Philippine
territory and grants the U.S. specific rights; it is essentially an agreement
governing the rules for the visit of “US armed forces in the Philippines from time
to time”232 in pursuit of cooperation to promote “common security interests”; it is
essentially a treaty governing the sojourn of US forces in this country for joint
exercises.233
Significantly, the 1951 MDT and the 1998 VFA contain a similar feature —
joint activities in pursuit of common security interests. The EDCA, on the other
hand, goes beyond the terms of the 1951 MDT and the 1998 VFA.
As explained above, the EDCA has two purposes. First, it is an agreement for
the conduct of joint activities in accordance with the 1951 MDT and the 1998 VFA.
This, however, is not the centerpiece of the EDCA. Its centerpiece is the
introduction of agreed Locations which are portions of the Philippine
territory whose use is granted to the U.S.234 The EDCA then proceeds to list
the rights that the U.S. has over the Agreed Locations.235
_______________
232 1998 VFA, Preamble, par. 4.
233 Lim v. Executive Secretary, supra note 179 at p. 575; p. 755. In this
manner, visiting US forces may sojourn in Philippine territory for purposes other
than military. As conceived, the joint exercises may include training on new
techniques of patrol and surveillance to protect the nations marine resources, sea These rights, granted to the U.S. under the EDCA, do not contain an
search-and-rescue operations to assist vessels in distress, disaster relief element of mutuality in the sense that mutuality is reflected in the 1951 MDT
operations, civic action projects such as the building of school houses, medical and and the 1998 VFA. As these rights go beyond the earlier treaties and are, in fact,
humanitarian missions, and the like. independent sources of rights and obligations between the U.S. and the
234 EDCA, Article II(4). Philippines, they cannot be mere details of implementation of both the 1951 MDT
235 Id., Article III(1). and the 1998 VFA.
And, as pointed out earlier, the Agreed Locations under the EDCA are akin to
the military bases contemplated under the 1947 MBA. Thus, by its own terms, the
621 EDCA is not only a military base agreement outside the provisions of the 1951
VOL. 779, JANUARY 12, 2016 621 NlDT and the 1998 VFA, but a piecemeal introduction of military bases in the
Philippines.
Saguisag vs. Ochoa, Jr. Note that, at this point, there exists no agreement on the establishment of U.S.
military bases in the Philippines; the EDCA reintroduces a modernized
A reading of the EDCA’s provisions shows that the rights and privileges version of the fixed military base concept contemplated and
granted to the U.S. do not always carry a concomitant right on the part of the operationalized under the 1947 MBA.
Philippines nor do they involve joint exercises. While the EDCA mentions that the
Agreed Locations may be used for “security cooperation exercises”236 and “joint and V.D(4) The 1951 MDT and 1998 VFA in con-
combined training activities,”237 the provisions of the EDCA also provide for the junction with the EDCA
conduct of other activities beyond the 1951 MDT and the 1998 VFA.
Within the Agreed Locations, the U.S. may conduct trainings for its troops, An additional dimension that the EDCA introduces — the treatment of U.S.
transit, support and related activities.238 The EDCA also allows the U.S. to use the forces and U.S. contractors — reveals that it does not merely implement the
Agreed Locations to refuel aircraft, bunker vessels, temporarily maintain vehicles, 1951 MDT and the 1998 VFA, but adds to the obligations in these agreements.
vessels and aircraft.239Significantly, it does not provide for any qualification on the To support its conclusion that the EDCA implements the provisions in the 1951
purpose for the entry of these vessels, vehicles, and aircraft into Philippine MDT and the 1998 VFA, the ponencia points out that the EDCA references 1951
jurisdiction. MDT and the 1998 VFA in allowing the entry of U.S. personnel and U.S. forces in
The EDCA also permits the temporary accommodation of personnel,240 again the Philippines, and that the entry of U.S. contractors (who had not been
without any qualification as to the purpose of their visit. The U.S. forces may also mentioned in the 1998 VFA) do not contradict the obligations found in the 1998
engage in communications activities including the use of its own radio VFA.
spectrum,241 similarly without any limitation as to the purpose by which such The ponencia further notes that the U.S. contractors had been expressly
communications shall be carried out. excluded from the definition of U.S. personnel and U.S. forces, in line with their
Further, within the Agreed Locations, the U.S. can also preposition defense definitions in the 1998
equipment, supplies, and materiel over which the U.S. forces shall have exclusive
use and control.242 Clearly, the right to deploy weapons can be undertaken even if it
is not in the pursuit of joint activities for common security interests. 623
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VOL. 779, JANUARY 12, 2016 623
236 Id., Article I(3). Saguisag vs. Ochoa, Jr.
237 Id.
238 Id., Article III(1). VFA.243 They are not entitled to the same privileges that U.S. Personnel and
239 Id. U.S. forces enjoy under the 1998 VFA, but would have to comply with Philippine
240 Id. law to enter the Philippines.
241 Id., Article VII(2) The ponencia proceeds to argue that the lack of dissimilarities between the
242 Id., Article IV(1), (3). 1998 VFA and the EDCA point to the conclusion that the EDCA implements the
1998 VFA. By limiting the entry of persons under the EDCA to the categories
under the 1998 VFA, the EDCA merely implements what had already been agreed
622 upon under the 1998 VFA. The U.S. forces’s authorization to perform activities
under the EDCA does not change the nature of the EDCA as the 1998 VFA’s
622 SUPREME COURT REPORTS ANNOTATED
implementing agreement, as the term “joint exercises” under the 1998 VFA
Saguisag vs. Ochoa, Jr.
denotes a wide range of activities that include the additional activities under the
EDCA.
That the 1998 VFA and the EDCA are not dissimilar in terms of their
treatment of U.S. forces and U.S. personnel, does not automatically mean that the
EDCA simply implements the 1998 VFA, given the additional obligations that the
EDCA introduces for the Philippine government.
As earlier discussed, the EDCA introduces military bases in the Philippines
within the concept of the 1987 Constitution, and it is in light of these additional
obligations that the EDCA’s affirmation of the 1998 VFA should be
viewed: the EDCA adds new dimensions to the treatment of U.S. Personnel
and U.S. forces provided in the 1998 VFA, and these dimensions cannot be
ignored in determining whether the EDCA merely implements the 1998
VFA.
Thus, while the EDCA affirms the treatment of U.S. personnel and U.S. forces
in the Philippines, it at the same time introduces the Philippines’ obligation
to recognize the authority of U.S. Forces in the “Agreed Locations.” Under
the EDCA, U.S. forces can now preposition and store defense equipment,
supplies, and materiel at Agreed Locations. They
_______________
243 Ponencia, pp. 385-388.
624
624 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
shall have unimpeded access to Agreed Locations for all matters relating to
the prepositioning and storage of defense equipment, supplies, and materiel.
Lastly, the EDCA authorizes the U.S. forces to exercise all rights and
authorities within the Agreed Locationsthat are necessary for their
operational control or defense. In contrast, the 1998 VFA only refers to the tax and
duty-free entry of U.S. Government equipment in connection with the activities
during their visit.
In the same manner, and despite being in a different class as U.S. personnel
and U.S. forces, U.S. contractors are also allowed “unimpeded access” to the
Agreed Locations when it comes to all matters relating to the prepositioning
and storage of defense equipment, supplies and materiel.
Thus, these groups of people (U.S. personnel, U.S. forces and U.S. contractors)
have been referred to in the EDCA not merely to implement the 1998 VFA, but to
further their roles in the Agreed Locations that the EDCA authorizes.
From these perspectives, the EDCA cannot be considered to be a simple
implementation of the 1998 VFA. Rather, it is a continuation of the 1998 VFA
under new dimensions. These dimensions should not and cannot be hidden behind
reaffirmations of existing 1998 VFA obligations. These added dimensions reinforce
the idea of military bases, as it allows them access to the Agreed Locations that,
as I had earlier mentioned, is the cornerstone of the EDCA. From the legal end, the
obligations under the EDCA, not its policy declarations and
characterization, should be decisive in determining whether Section 25, Article
XVIII applies.
Lastly, even assuming that the EDCA is an implementation of the 1951 MDT
and the 1998 VFA, the practice of the Government reveals that even when an
agreement is considered as an implementation of a prior treaty, the concurrence
of the Senate must still be sought.
Early in the Senate deliberations on the 1998 VFA, the senator-sponsors
characterized it merely as a subsidiary or
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Saguisag vs. Ochoa, Jr.
implementing agreement to the 1951 MDT.244 Nevertheless, Senator Tatad,
one of the 1998 VFA’s co-sponsors, recognized that Article XVIII, Section 25 of the
Constitution prohibits the 1998 VFA from being executed as a mere executive
agreement,245 for which reason it was sent to the Senate for concurrence.
The senators agreed during the deliberations that an agreement implementing
the 1951 MDT requires Senate concurrence.246 This is because the agreement,
despite implementing or affirming the 1951 MDT, allows the entry of U.S. troops
in the Philippines, a matter covered by Article XVIII, Section 25 of the
Constitution.
Indeed, the 1998 VFA has been consistently treated as an implementation of
the 1951 MDT. Nevertheless, the Government correctly chose to enter into the
international agreement in the form of a treaty duly concurred in by the Senate,
because it involves the entry of foreign military troops independent of, and in
addition to, the general agreements in the 1951 MDT.
In the same manner, the EDCA, which purportedly implements and
complements both the 1951 MDT and the 1998 VFA, should have likewise been
submitted to the Senate for its concurrence because of the new obligations it
introduces.
_______________
244 Id.
245 Senate deliberations, May 25, 1999, AM, p. 17, which reads:
Senator Tatad. x x x Mr. President, distinguished colleagues, the Visiting
Forces Agreement does not create a new policy or a new relationship. It simply
seeks to implement and reinforce what already exists.
For that purpose, an executive agreement might have sufficed, were
there no constitutional constraints. But the Constitution requires the
Senate to concur in all international agreements. So the Senate must concur
in the Visiting Forces Agreement, even if the U.S. Constitution does not require
the U.S. Senate to give its advice and consent.
246 Senate Resolution No. 1414, supra note 107.
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Saguisag vs. Ochoa, Jr.
To reiterate, the EDCA allows for a more permanent presence of U.S. troops
and military equipment in the Philippines (akin to establishing a base), which was
not contemplated under the 1998 VFA. Thus, despite having been treated as an
implementation of the 1951 MDT and the 1998 VFA, the new obligations under
the EDCA calls for the application of Article XVIII, Section 25 of the Constitution
and its submission to the Senate for concurrence.
V.E. The EDCA: the Actual and Operational View
As my last point, let me just say that the ponencia can engage in a lot of
rationalizations and technical distinctions on why the EDCA provisions do
not amount to or equate with the operation of military bases and the introduction
of troops and facilities into the Philippines. The ponencia cannot escape the
conclusion that translated to actual operational reality:
1. The activities described in the EDCA are no different from the operation of
a military base in the 1947 sense, except that under the current U.S. strategy, a
fixed base in the 1947 sense is hardly ever established because the expenses and
administrative problems accompanying a fixed base can now be avoided. A military
“facility” can very well serve the same purposes as a fixed military base under
current technological advances in weaponry, transportation, and
communications.247 The U.S. can achieve the same results at less expense and with
lesser problems if it would have guaranteed access to and control of speci-
_______________
247 During the latter part of the Cold War, the term “facilities” was frequently
substituted for the word “bases” to soften the negative political overtones normally
associated with the basing of foreign troops in a sovereign country. In line with
this thinking, the Stockholm International Peace Research Institute uses the term
foreign military presence (FMP) to describe bases/facilities that house foreign
troops in a sovereign state. See Krepinevich and Work, supra note 202.
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VOL. 779, JANUARY 12, 2016 627
Saguisag vs. Ochoa, Jr.
fied areas such as the Agreed Locations that the EDCA conveniently provides.
FOSs or CSLs, as defined above, are expandable “warm facilities” maintained
with limited U.S. military support presenceand
possibly prepositioned equipment.248 FOSs will support rotational rather than
permanently stationed forces, and will be a focus for bilateral and regional training
and for the deployment of troops and stored and prepositioned equipment, supplies,
and materiel.249
As has already been mentioned, examples include the Sembawang port facility
in Singapore and Soto Cano Air Base in Honduras. The Philippines will soon follow
without the consent of the Filipino people and against the constitutional standards
they set, if EDCA would be enforced without the benefit of Senate concurrence.
2. Under the “pivot to Asia strategy,” the operative word is “presence” which
means ready access to equipment, supplies, and materiel by troops who can be
ferried from safer locations and immediately be brought to the scene of action from
the Agreed Locations. The EDCA provides such presence through the Agreed
Locations; the access to these secured locations; the prepositioning and storage of
defense (read as “military”) equipment, supplies, and materiel; and the forward
jump-off point for the deployment of troops to whatever scene of action there may
be that Philippine locations may serve best.
3. From the point of view of “troops” that Article XVIII, Section 25 likewise
regulates through Senate concurrence, note that in the EDCA, contractual
employees are mentioned together or side-by-side with the military. This is a
relatively recent development where contractual em-
_______________
248 Strengthening U.S. Global Defense Posture: Report to
Congress, supra note 201.
249 Id.
628
628 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
ployees are used to provide the same services and serve hand in hand or as
replacement or to augment regular military forces. The U.S. has put these
contractual employees to good use in various local theaters of conflict, notably in
Iraq, Afghanistan and Syria.250The U.S. has reportedly resorted to the use, not
only of regular military forces, but of contractual employees who may provide the
same services as military forces and who can increase their numbers without
alerting the U.S. public to the actual number of troops maintained.
VI. Conclusion and the Question of Remedy
Based on all the above considerations, I conclude that the EDCA, instead of
being in implementation of the 1951 MDT and the 1998 VFA, is significantly
broader in scope than these two treaties, and effectively added to what the 1951
MDT and the 1998 VFA provide.
The EDCA is thus a new agreement that touches on military bases, troops, and
facilities beyond the scope of the 1951 MDT and the 1998 VFA, and should be
covered by a treaty pursuant to Article XVIII, Section 25 and Article VII, Section
21, both of the 1987 Constitution. Without the referral and concurrence by the
Senate, the EDCA is constitutionally deficient and, hence, cannot be enforced in
our country.
To remedy the deficiency, the best recourse RECOMMENDED TO THE
COURT under the circumstances is for the Court to suspend the operations of
its rules on the finality of its rulings and for the Court to give the President
ninety (90) days from the service of its Decision, whether or not a motion
for reconsideration is filed,
_______________
250 See Gomez del Prado, Jose, Privatization of War: Mercenaries, Private
Military and Security Companies, Global Research, November 8, 2010, available
at http://www.globalresearch.ca/the-privitazation-of-war-mercenaries-private-
military-and-security-companies-pmsc/21826.
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Saguisag vs. Ochoa, Jr.
the OPTION to refer the EDCA to the Senate for its consideration and
concurrence.
The referral to the Senate shall serve as a main or supplemental motion for
reconsideration that addresses the deficiency, rendering the effects of the Court’s
Decision moot and academic. Otherwise, the conclusion that the President
committed grave abuse of discretion by entering into an executive agreement
instead of a treaty, and by certifying to the completeness of Philippine internal
process, shall be fully effective.
As my last point, we must not forget that the disputed executive
agreement that the President entered into is with the Americans from
whom we trace the roots of our present Constitution. The Americans are a
people who place the highest value in their respect for their Constitution.
This should be no less than the spirit that should move us in adhering to
our own Constitution. To accord a lesser respect for our own Constitution
is to invite America’s disrespect for the Philippines as a coequal sovereign
and independent nation.
DISSENTING OPINION
“Para kayong mga birhen na naniniwala sa pag-ibig ng isang puta!”1
– Heneral Luna kina Pedro Paterno, Felix Buencamino, at
Emilio Aguinaldo noong sinabi nila na nangako ang mga Amerikano
na kikilalanin nila ang kasarinlan ng mga Pilipino
LEONEN, J.:
1987 Constitution, Article XVIII, Section 25:
After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of
_______________
1 Heneral Luna, Dir. Jerrold Tarog, Artikulo Uno Productions (2015). The
inclusion of this quote is to emphasize its metaphor and not meant in any way to
denigrate the human dignity of commercial sex workers.
630
630 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
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.
In a disturbing turn of events, the majority of this court just succeeded in
amending this constitutional provision. At the very least, it emasculated its text
and weakened its spirit.
An agreement signed by our Secretary of Defense and the Ambassador of the
United States that grants United States military personnel and their contractors
operational control over unspecified locations within Philippine territory in order
to pre-position military equipment as well as to use as launching pads for
operations in various parts of the globe is not binding until it is concurred in by
the Senate. This is in accordance with Article XVIII, Section 25 and Article VII,
Section 21 of the Constitution.
Furthermore, the Enhanced Defense Cooperation Agreement (EDCA) does not
simply implement the Agreement Between the Government of the United States
of America and the Government of the Republic of the Philippines Regarding the
Treatment of United States Armed Forces Visiting the Philippines (Visiting Forces
Agreement or VFA). The EDCA substantially modifies or amends the VFA. An
executive agreement cannot amend a treaty. Nor can any executive agreement
amend any statute, most especially a constitutional provision.
The EDCA substantially modifies or amends the VFA in the following aspects:
First, the EDCA does not only regulate the “visits” of foreign troops. It also
allows the temporary stationing on a rotational basis of US military personnel and
their contractors in physical locations with permanent facilities and pre-positioned
military materiel.
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Saguisag vs. Ochoa, Jr.
Second, unlike the VFA, the EDCA allows pre-positioning of military materiel,
which can include various types of warships, fighter planes, bombers, and vessels,
as well as land and amphibious vehicles and their corresponding ammunition.
Third, the VFA contemplates the entry of troops for various training exercises.
The EDCA allows our territory to be used by the United States to launch military
and paramilitary operations to be conducted within our territory or against targets
in other states.
Fourth, the EDCA introduces the following concepts not contemplated in the
VFA or in the 1951 Mutual Defense Treaty, namely: (a) agreed locations; (b)
contractors; (c) pre-positioning of military materiel; and (d) operational control.
Lastly, the VFA does not have provisions that may be construed as a restriction
or modification of obligations found in existing statutes. The EDCA contains
provisions that may affect various statutes, including (a) the jurisdiction of courts,
(b) local autonomy, and (c) taxation.
There is no showing that the new matters covered in the EDCA were
contemplated by the Senate when it approved the VFA. Senate Resolution No. 105,
Series of 2015, which expresses the sentiment of that legislative chamber, is a
definite and unequivocal articulation of the Senate: the VFA was not intended to
cover the matters now included in the EDCA. In the view of the Senate reading
the same provisions of the Constitution as we do, the EDCA should be in treaty
form.
The EDCA, in its current form, is only an official and formal memorial of
agreed provisions resulting from the negotiations with the United States. The
President has the discretion to submit the agreement to the Senate for
concurrence. The EDCA is a treaty and requires Senate concurrence.
I ommendation. Thereafter, joint public hearings were held by the two
The EDCA should comply with Article XVIII, Section 25 of the Constitution.
632
632 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
BAYAN v. Zamora2 interpreted the scope of this provision when it discussed
the constitutionality of the VFA. Similar to the EDCA, the VFA was a product of
negotiations between the two governments relating to mutual security interests.
Unlike the EDCA, however, the VFA was submitted to the Senate for concurrence,
thus:
On July 18, 1997, the United States panel, headed by US Defense
Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the
Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo
Severino, Jr., to exchange notes on “the complementing strategic interests
of the United States and the Philippines in the Asia-Pacific region.” Both
sides discussed, among other things, the possible elements of the Visiting
Forces Agreement (VFA for brevity). Negotiations by both panels on the
VFA led to a consolidated draft text, which in turn resulted [in] a final
series of conferences and negotiations that culminated in Manila on
January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos
approved the VFA, which was respectively signed by public respondent
Secretary Siazon and Unites States Ambassador Thomas Hubbard on
February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent
Secretary of Foreign Affairs, ratified the VFA.
On October 6, 1998, the President, acting through respondent
Executive Secretary Ronalda Zamora, officially transmitted to the Senate
of the Philippines, the Instrument of Ratification, the letter of the President
and the VFA, 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, chaired by Senator Blas F. Ople, and its Committee on
National Defense and Security, chaired by Senator Rodolfo G. Biazon, for
their joint consideration and rec-
_______________
2 Bayan (Bagong Alyansang Makabayan) v. Zamora, 396 Phil. 623; 342 SCRA
449 (2000) [Per J. Buena, En Banc].
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Saguisag vs. Ochoa, Jr.
Committees.
On May 3, 1999, the Committees submitted Proposed Senate
Resolution No. 443 recommending the concurrence of the Senate to the VFA
and the creation of a Legislative Oversight Committee to oversee its
implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by
the Senate, by a two-thirds (2/3) vote of its members. Senate Resolution No.
443 was then renumbered as Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after an Exchange
of Notes between respondent Secretary Siazon and United States
Ambassador Hubbard.3 (Citations omitted)
BAYAN held that Article XVIII, Section 25 of the Constitution applies to the
VFA:
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.
There is no dispute as to the presence of the first two requisites in the
case of the VFA. The concurrence handed by the Senate through Resolution
No. 18 is in accordance with the provisions of the Constitution, whether
under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter
 article requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it.
_______________
3 Id., at pp. 632-637; pp. 464-469.
634
634 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
As to the matter of voting, Section 21, Article VII particularly requires
that a treaty or international agreement, to be valid and effective, must be
concurred in by at least two-thirds of all the members of the Senate. On the
other hand, Section 25, Article XVIII simply provides that the treaty be
“duly concurred in by the Senate.”
Applying the foregoing constitutional provisions, a two-thirds vote of all
the members of the Senate is clearly required so that the concurrence
contemplated by law may be validly obtained and deemed present. While it
is true that Section 25, Article XVIII requires, among other things, that the
treaty — the VFA, in the instant case — be “duly concurred in by the
Senate,” it is very true however that said provision must be related and
viewed in light of the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the 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.
As noted, the “concurrence requirement” under Section 25, Article
XVIII must be construed in relation to the provisions of Section 21, Article
VII. In a more particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that at least two-
thirds of all the members of the Senate favorably vote to concur with the
treaty — the VFA in the instant case.
....
Having resolved that the first two requisites prescribed in Section 25,
Article XVIII are present, we shall now pass upon and delve on the
requirement that the VFA should be recognized as a treaty by the United
States of America.
....
This Court is of the firm view that 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, the United
States
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Saguisag vs. Ochoa, Jr.
of America in this case, to submit the VFA to the United States Senate
for concurrence pursuant to its Constitution, is to accord strict meaning to
the phrase.4
Lim v. Executive Secretary5 further explored the scope of the VFA as it dealt
with the constitutionality of the Terms of Reference of the “Balikatan 02-1” joint
military exercises between the Philippines and the United States:
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity
surrounding the meaning of the word “activities” arose from accident. In
our view, it was deliberately made that way to give both parties a certain
leeway in negotiation. In this manner, visiting US forces may sojourn in
Philippine territory for purposes other than military. As conceived, the joint
exercises may include training on new techniques of patrol and surveillance
to protect the nation’s marine resources, sea search-and-rescue operations
to assist vessels in distress, disaster relief operations, civic action projects
such as the building of school houses, medical and humanitarian missions,
and the like.
Under these auspices, the VFA gives legitimacy to the
current Balikatan exercises. It is only logical to assume that “Balikatan 02-
1,” a “mutual anti-terrorism advising, assisting and training exercise,” falls
under the umbrella of sanctioned or allowable activities in the context of
the agreement. Both the history and intent of the Mutual Defense Treaty
and the VFA support the conclusion that combat-related activities — as
opposed to combat itself — such as the one subject of the instant petition,
are indeed authorized.
_______________
4 Id., at pp. 654-657; pp. 486-488.
5 430 Phil. 555; 380 SCRA 739 (2002) [Per J. De Leon, Jr., En Banc].
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Saguisag vs. Ochoa, Jr.
That is not the end of the matter, though. Granted that “Balikatan 02-
1” is permitted under the terms of the VFA, what may US forces
legitimately do in furtherance of their aim to provide advice, assistance and
training in the global effort against terrorism? Differently phrased, may
American troops actually engage in combat in Philippine territory? The
Terms of Reference are explicit enough. Paragraph 8 of Section I stipulates
that US exercise participants may not engage in combat “except in self-
defense.” We wryly note that this sentiment is admirable in the abstract
but difficult in implementation. The target of “Balikatan 02-1,” the Abu
Sayyaf, cannot reasonably be expected to sit idly while the battle is brought
 to their very doorstep. They cannot be expected to pick and choose their
targets for they will not have the luxury of doing so. We state this point if
only to signify our awareness that the parties straddle a fine line, observing
the honored legal maxim “Nemo potest facere per alium quod non potest
facere per directum.” The indirect violation is actually petitioners’ worry,
that in reality, “Balikatan 02-1” is actually a war principally conducted by
the United States government, and that the provision on self-defense serves
only as camouflage to conceal the true nature of the exercise. A clear
pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the VFA allow foreign
troops to engage in an offensive war on Philippine territory.6 (Emphasis
supplied)
law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
....
Section 7. The State shall pursue an independent foreign policy. In
its relations with other states the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and the right
to self-determination.
Article 2(4) of the Charter of the United Nations similarly provides that “[a]ll
Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or
_______________

Nicolas v. Romulo7 involved the grant of custody of Lance Corporal Daniel 8 Id., at pp. 284-285; p. 461.
Smith to the United States pursuant to the VFA and reiterated the ruling
in Bayan:
638
[A]s an implementing agreement of the RP-US Mutual Defense Treaty,
638 SUPREME COURT REPORTS ANNOTATED
it was not necessary to submit the VFA
_______________ Saguisag vs. Ochoa, Jr.

6 Id., at pp. 575-576; pp. 755-756. “Nemo palest facere per alium quod non in any other manner inconsistent with the Purposes of the United Nations.”9
palest facere per directum” translates to “No one is allowed to do indirectly what Our use of force is not completely proscribed as the Charter of the United
he is prohibited to do directly.” Nations provides for the inherent right of individual or collective self-defense:
7 598 Phil. 262; 578 SCRA 438 (2009) [Per J. Azcuna, En Banc].
CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE
PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
637
. . . .
VOL. 779, JANUARY 12, 2016 637
Saguisag vs. Ochoa, Jr. Article 51. Nothing in the present Charter shall impair the inherent
right of individual or collective self-defen[s]e if an armed attack occurs
to the US Senate for advice and consent, but merely to the US Congress under against a Member of the United Nations, until the Security Council has
the Case-Zablocki Act within 60 days of its ratification. It is for this reason that taken measures necessary to maintain international peace and security.
the US has certified that it recognizes the VFA as a binding international Measures taken by Members in the exercise of this right of self-defen[s]e
agreement, i.e., a treaty, and this substantially complies with the requirements of shall be immediately reported to the Security Council and shall not in any
Art. XVIII, Sec. 25 of our Constitution.8 way affect the authority and responsibility of the Security Council under
The controversy now before us involves more than the VFA. Reading the the present Charter to take at any time such action as it deems necessary
entirety of the Constitution is necessary to fully appreciate the context of the in order to maintain or restore international peace and security.10
interpretation of Article XVIII, Section 25.
Furthermore, falling within the penumbra on the use of force are preemptive
II self-defense,11 self-help, and humanitarian interventions.12
_______________
Foreign policy indeed includes security alliances and defense cooperation
among states. In the conduct of negotiations and in the implementation of any 9 Charter of United Nations, Chapter I, Art. 2(4)
valid and binding international agreement, Article II of the Constitution requires: <http://www.un.org/en/documents/charter/chapter1.shtml> (visited January 11,
2016).
Section 2. The Philippines renounces war as an instrument of 10 Charter of United Nations, Chapter VII, Art. 51
national policy, adopts the generally accepted principles of international <http://www.un.org/en/documents/charter/chapter7.shtml> (visited January 11,
2016). See Military and Paramilitary Activities in and Against Nicaragua 640 SUPREME COURT REPORTS ANNOTATED
(Nicaragua v. United States of America), I.C.J. 1984 I.C.J. 39
11 See Anthony Clark Arend, International Law and the Preemptive Use of Saguisag vs. Ochoa, Jr.
Military Force, THE WASHINGTON QUARTERLY 26:2, 89-103
(2003). See Higgins, Rosalyn, Problems and Process: International Law and How Generally, the President’s discretion is plenary in matters falling within
We Use It, pp. 242-243 (1994), citing US executive functions. He is the chief executive,15 having the power of control over
all executive departments, bureaus, and offices.16 Further, “by constitutional fiat
and by the intrinsic nature of his office, the President, as head of State, is the sole
639 organ and authority in the external affairs of the country [and] [i]n many ways,
the President is the chief architect of the nation’s foreign policy.”17
VOL. 779, JANUARY 12, 2016 639
The President is also the Commander-in-Chief of all armed forces of the
Saguisag vs. Ochoa, Jr. Philippines.18 He has the power to “call out such armed forces to prevent or
Another exception would be the collective security system set up under the suppress lawless violence, invasion or rebellion . . . suspend the privilege of the
Charter of the United Nations, with the Security Council acting in accordance with writ of habeas corpus or place the Philippines or any part thereof under martial
Chapter VII of the Charter. Under Article 42: law”19 subject to the conditions and requisites under the provision.
Should the Security Council consider that measures provided for in Article 41 However, the President’s discretion to allow our participation in the use of force
would be inadequate or have proved to be inadequate, it may take such action by — whether by committing our own military assets and personnel or by allowing
air, sea, or land forces as may be necessary to maintain or restore international our territory to be used as waypoints, refueling or staging areas — is also
peace and security. Such action may include demonstrations, blockade, and other constrained by the Constitution. In this sense, the power of the President as
operations by air, sea, or land forces of Members of the United Nations.13 Commander-in-Chief and head of state is limited by the sovereign through
_______________ judicially determinable constitutional parameters.
_______________
Secretary of State Webster in his diplomatic note in the 1842 Caroline
Case. According to Professor Higgins, under customary international law, 11, 2016). See also Enforcement action through regional arrangements under
preemptive self-defense may be resorted to when the necessity is “instant, Articles 52(1) and 53(1) of the United Nations Charter.
overwhelming, and leav[es] no choice of means, and no moment for deliberation.” <http://www.un.org/en/sections/un-charter/chapter-viii/index.html> (visited
12 See Higgins, id., at pp. 245-248 (1994). See Keynote address by Jacques January 11, 2016).
Forster, Vice President of the International Committee of the Red Cross, presented 15 Const., Art. VII, Sec. 1.
at the Ninth Annual Seminar on International Humanitarian Law for Diplomats 16 Const., Art. VII, Sec. 17.
accredited to the United Nations, Geneva, 8-9 March 2000 17 Supra note 2 at p. 663; p. 494.
<https://www.icrc.org/eng/resources/documents/misc/57jqjk.htm> (visited January 18 Const., Art. VII, Sec. 18.
11, 2016): “The use of force by the international community should come within 19 Id.
the scope of the United Nations Charter. International humanitarian law cannot
be invoked to justify armed intervention because it has nothing to do with the right
of States to use force. Its role is strictly limited to setting limits to armed force 641
irrespective of the legitimacy of its use.” See also United Nations Security Council VOL. 779, JANUARY 12, 2016 641
Resolution 1674 (2006) on the concept of Responsibility to Protect
<http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1674(2006)> Saguisag vs. Ochoa, Jr.
(visited January 11, 2016).
13 Charter of United Nations, Chapter VII, Art. 42 III
<http://www.un.org/en/sections/charter/chapter7.shtml> (visited January 11,
2016). With respect to the use of or threat to use force, we can discern a gradation of
We fall within this exception when we participate in the enforcement of the interrelations of the legislative and executive powers to ensure that we pursue “an
resolutions of the Security Council.14 independent foreign policy” in the context of our history.
14 See Charter of United Nations, Chapter VII, Art. 44 Article VI, Section 23 of the Constitution covers declarations of a state of war.
<http://www.un.org/en/documents/charter/chapter7.shtml> (visited January It is vested solely in Congress, thus:

Section 23. (1) The Congress, by a vote of two-thirds of both Houses

640 in joint session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
 (2) In times of war or other national emergency, the Congress may, by
law, authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next adjournment
thereof.
Informed by our history and to ensure that the independence of our foreign
policy is not compromised by the presence of foreign bases, troops, or facilities, the
Constitution now provides for treaty recognition, Senate concurrence, and public
ratification when required by Congress through Article XVIII, Section 25, thus:
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.
642
642 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
The prohibition in Article XVIII, Section 25 relates only to international
agreements involving foreign military bases, troops, or facilities. It does not
prohibit the President from entering into other types of agreements that relate to
other aspects of his powers as Commander-in-Chief.
In BAYAN:
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, the concurrence 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.
....
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.20(Emphasis supplied)
“Foreign military bases, troops, and facilities” should not be read together but
separately. Again, in BAYAN:
_______________
20 Supra note 2 at pp. 651-655; pp. 482-486.
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Saguisag vs. Ochoa, Jr.
Moreover, it is specious to argue that Section 25, Article XVIII is
inapplicable to mere transient agreements for the reason that there is no
permanent placing of structure for the establishment of a military base. On
this score, the Constitution makes no distinction between “transient” and
“permanent.” Certainly, we find nothing in Section 25, Article XVIII that
requires foreign troops or facilities to be stationed or placed permanently
in the Philippines.
It is a rudiment in legal hermeneutics that when no distinction is made
by law, the Court should not distinguish — Ubi lex non distinguit nec nos
distinguire debemos.
In like manner, 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. Notably, a perusal of
said constitutional provision reveals that the proscription covers “foreign
military bases, troops, or facilities.” Stated differently, this prohibition is
not limited to the entry of troops or facilities without any foreign bases
being established. 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) foreign troops, or (c) foreign facilities — any of
the three standing alone places it under the coverage of Section 25, Article
XVIII.
To this end, the intention of the framers of the Charter, as manifested
during the deliberations of the 1986 Constitutional Commission, is
consistent with this interpretation:
“MR. MAAMBONG. I just want to address a question or two
to Commissoner Bernas.
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644 SUPREME COURT REPORTS ANNOTATED
 Saguisag vs. Ochoa, Jr.
This formulation speaks of three things: foreign military bases,
troops or facilities. My first question is: If the country does enter
into such kind of a treaty, must it cover the three — bases, troops or
facilities — or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it
covers only one or it covers three, the requirements will be the same.
MR. MAAMBONG. In other words, the Philippine government
can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the
government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our
imagination a little bit more, we will find some. We just want to
cover everything.”
Moreover, military bases established within the territory of another
state is no longer viable because of the alternatives offered by new means
and weapons of warfare such as nuclear weapons, guided missiles as well
as huge sea vessels that can stay afloat in the sea even for months and
years without returning to their home country. These military warships are
actually used as substitutes for a land-home base not only of military
aircraft but also of military personnel and facilities. Besides, vessels are
mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the
requirements of Section 25 were complied with when the Senate gave its
concurrence to the VFA.
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
645
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Saguisag vs. Ochoa, Jr.
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.21 (Citations omitted)
The ponencia, among others, interprets “shall not be allowed” as being limited
to the “initial entry” of bases, troops, or facilities.22Subsequent acts are treated as
no longer being subject to Article XVIII, Section 25 and are, therefore, only limited
by other constitutional provisions and relevant laws.23
This interpretation is specious and ahistorical.
There is nothing in Article XVIII, Section 25 that defines the extent and scope
of the presence of foreign military bases, troops, or facilities, thereby justifying a
distinction between their initial entry and subsequent activities. Its very structure
shows that Article XVIII, Section 25 is not a mere gateway for the entry of foreign
troops or facilities into the Philippines for them to carry out any activity later on.
The provision contains measures designed to protect our country in the broader
scheme of international relations. Military presence shapes both foreign policy and
political relations. War — or the threat thereof through the position of troops,
basing, and provision of military facilities — is an extension of politic, thus:
The use of military force is a means to a higher end — the political
object. War is a tool that policy uses to achieve its objectives and, as such,
has a measure of rational utility. So, the purpose for which the use of force
is intended will be the major determinant of the course and character of a
war. As Clausewitz explains, war “is controlled by its political object,”
which will set its course,
_______________
21 Id., at pp. 653-655; pp. 484-486.
22 Ponencia, p. 353.
23 Id., at p. 354.
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646 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
prescribe the scale of means and effort which is required, and makes its
influence felt throughout down to the smallest operational detail.24
With respect to the entry and presence of foreign military bases, troops, and
facilities, Article XVIII, Section 25 of the 1987 Constitution enables government to
politically negotiate with other states from a position of equality. The authority is
not exclusively granted to the President. It is shared with the Congress. The
Senate participates because no foreign base, troop, or facility may enter unless it
is authorized by a treaty.
There is more evidence in the text of the provision of a sovereign intent to
require conscious, deliberate, and public discussion regarding these issues.
The provision gives Congress, consisting of the Senate and the House of
Representatives, the option to require that the treaty become effective only when
approved by a majority of the people in a referendum. Furthermore, there is the
additional requirement that the authority will be absent if the other state does not
treat the same instrument that allows their bases, troops, and facilities to enter
our territory as a treaty.
The provision ensures equality by requiring a higher level of public scrutiny.
Unlike in the past when we bargained with the United States from a position of
weakness, the Constitution opens the legislative forum so that we use the freedoms
that we have won since 1946 to ensure a fair agreement. Legislative hearings make
the agreements more publicly legible. They allow more criticism to be addressed.
Public forums clarify to the United States and other foreign military powers
interested in the Philippines the full extent of interest and
_______________
24 Thomas Waldman, Politics and War: Clausewitz’s Paradoxical Equation,
AUTUMN 2 (2010)
<http://strategicstudiesinstitute.army.mil/pubs/parameters/Articles/201Oautumn
/Waldman.pdf> (visited January 11, 2016).
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Saguisag vs. Ochoa, Jr.
the various standpoints of our different constituents. As a mechanism of public
participation, it also assures our treaty partners of the durability of the various
obligations in these types of security arrangements.
The EDCA was negotiated in private between representatives of the President
and the United States. The complete text of the negotiations was presented to the
public in time for the visit of the President of the United States. During its
presentation, the President’s representatives took the position that no further
public discussion would be held that might affect the terms of the EDCA. The
President presented the EDCA as a final product withdrawn from Senate or
Congressional input. The President curtailed even the possibility of full public
participation through a Congressional Resolution calling for a referendum on this
matter.
The Separate Opinion of former Chief Justice Puno in BAYAN provides a
picture of how the Constitutional Commission recognized the lopsided relationship
of the United States and the Philippines despite the 1951 Mutual Defense Treaty
and the 1947 Agreement Between the United States of America and the Republic
of the Philippines Concerning Military Bases (1947 Military Bases Agreement):
To determine compliance of the VFA with the requirements of Sec. 25,
Art. XVIII of the Constitution, it is necessary to ascertain the intent of
the framers of the Constitution as well as the will of the Filipino
people who ratified the fundamental law. This exercise would
inevitably take us back to the period in our history when U.S.
military presence was entrenched in Philippine territory with the
establishment and operation of U.S. Military Bases in several parts
of the archipelago under the 1947 R.P.-U.S. Military Bases
Agreement. As articulated by Constitutional Commissioner Blas F. Ople
in the 1986 Constitutional Commission deliberations on this provision, the
1947 RP-US Military Bases Agreement was ratified by the Philippine
Senate, but not by the
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648 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
United States Senate. In the eyes of Philippine law, therefore, the
Military Bases Agreement was a treaty, but by the laws of the United
States, it was a mere executive agreement. This asymmetry in the
legal treatment of the Military Bases Agreement by the two countries
was believed to be a slur to our sovereignty. Thus, in the debate among
the Constitutional Commissioners, the unmistakable intention of the
commission emerged that this anomalous asymmetry must never be
repeated. To correct this historical aberration, Sec. 25, Art. XVIII of
the Constitution requires that the treaty allowing the presence of
foreign military bases, troops, and facilities should also be
“recognized as a treaty by the other contacting party.” In plain
language, recognition of the United States as the other contracting party of
the VFA should be by the US President with the advice and consent of
the US Senate.
The following exchanges manifest this intention:
“MR. OPLE. Will either of the two gentlemen yield to just one
question for clarification? Is there anything in this formulation,
whether that of Commissioner Bernas or of Commissioner Romulo,
that will prevent the Philippine government from abrogating the
existing bases agreement?
FR. BERNAS. To my understanding, none.
MR. ROMULO. I concur with Commissioner Bernas.
MR. OPLE. I was very keen to put this question because I had taken
the position from the beginning — and this is embodied in a resolution filed
by Commissioners Natividad, Maambong and Regalado — that it is very
important that the government of the Republic of the Philippines be in a
position to terminate or abrogate the bases agreement as one of the options
. . . . we have acknowledged starting at the committee level that the bases
agreement was ratified by our Senate; it is a treaty under Philippine law.
But as far as the Americans are con-
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Saguisag vs. Ochoa, Jr.
cerned, the Senate never took cognizance of this and therefore, it is an
executive agreement. That creates a wholly unacceptable asymmetry
between the two countries. Therefore, in my opinion, the right step to take,
if the government of our country will deem it in the national interest to
terminate this agreement or even to renegotiate it, is that we must begin
with a clean slate; we should not be burdened by the flaws of the 1947
Military Bases Agreement. . .
MR. ROMULO. Madam President, I think the two phrases in the
Bernas formulation take care of Commissioner Ople’s concerns.
The first says ‘EXCEPT UNDER THE TERMS OF A TREATY.’
That means that if it is to be renegotiated, it must be under the
terms of a new treaty. The second is the concluding phrase which
 says: ‘AND RECOGNIZED AS A TREATY BY THE OTHER
CONTRACTING STATE.’
....
MR. SUAREZ. Is the proposal prospective and not retroactive in
character?
FR. BERNAS. Yes, it is prospective because it does not touch the
validity of the present agreement. However, if a decision should be
arrived at that the present agreement is invalid, then even prior to
1991, this becomes operative right away.
MR. SUAREZ. In other words, we do not impress the previous
agreements with a valid character, neither do we say that they are
null and void ab initio as claimed by many of us here.
FR. BERNAS. The position I hold is that it is not the function of
this Commission to pass judgment on the validity or invalidity of
the subsisting agreement.
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650 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
MR. SUAREZ . . . the proposal requires recognition of this treaty
by the other contracting nation. How would that recognition be
expressed by that other contracting nation? That is in accordance
with their constitutional or legislative process, I assume.
FR. BERNAS. As Commissioner Romulo indicated, since this
certainly would refer only to the United States, because it is only
the United States that would have the possibility of being allowed
to have treaties here, then we would have to require that the Senate
of the United States concur in the treaty because under American
constitutional law, there must be concurrence on the part of the
Senate of the United States to conclude treaties.
....
FR. BERNAS. When I say that the other contracting state must
recognize it as a treaty, by that I mean it must perform all the acts
required for the agreement to reach the status of a treaty under their
jurisdiction.”25(Emphasis supplied)
By allowing the entry of United States military personnel, their deployment
into undefined missions here and abroad, and their use of military assets staged
from our territory against their present and future enemies based on a general
provision in the VFA, the majority now undermines the measures built into our
present Constitution to allow the Senate, Congress and our People to participate
in the shaping of foreign policy. The EDCA may be an agreement that “deep-
_______________
25 J. Puno, Dissenting Opinion in Bayan (Bagong Alyansang Makabayan) v.
Zamora, supra note 2 at pp. 672-675; pp. 503-505.
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Saguisag vs. Ochoa, Jr.
ens defense cooperation”26 between the Philippines and the United States.
However, like the 1947 Military Bases Agreement, it is the agreement more than
any other that will extensively shape our foreign policy.
IV
Article VII, Section 21 of the Constitution complements Article XVIII, Section
25 as it provides for the requisite Senate concurrence, thus:
Section 21. No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of
the Senate.
The provision covers both “treaty and international agreement.” Treaties are
traditionally understood as international agreements entered into between states
or by states with international organizations with international legal
personalities.27 The deliberate inclusion of the term “international agreement” is
the subject of a number of academic discussions pertaining to foreign relations and
international law. Its addition cannot be mere surplus. Certainly, Senate
concurrence should cover more than treaties.
That the President may enter into international agreements as chief architect
of the Philippines’ foreign policy has long been acknowledged.28 However, whether
an international
_______________
26 Agreement between the Government of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation
(2014), Art. 1, Sec. 1.
27 See Vienna Convention on the Law of Treaties (1969), Art. 2(1)(a) and
Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations, Art. 2(1)(a) (1986).
28 Supra note 2; and Pimentel, Jr. v. Office of the Executive Secretary, 501
Phil. 303; 462 SCRA 622 (2005) [Per J. Puno, En Banc].
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652 SUPREME COURT REPORTS ANNOTATED
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agreement is to be regarded as a treaty or as an executive agreement depends
on the subject matter covered by and the temporal nature of the
agreement.29 Commissioner of Customs v. Eastern Sea Trading30 differentiated
international agreements that require Senate concurrence from those that do not:
International agreements involving political issues or changes of
national policy and those involving international arrangements of a
permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-established
national policies and traditions and those involving arrangements of a more
or less temporary nature usually take the form of executive
agreements.31 (Emphasis in the original)
Indeed, the distinction made in Commissioner of Customs in terms of
international agreements must be clarified depending on whether it is viewed from
an international law or domestic law perspective. Dean Merlin M. Magallona
summarizes the differences between the two perspectives:
From the standpoint of Philippine constitutional law, a treaty is to be
distinguished from an executive agreement, as the Supreme Court has done
in Commissioner of Customs v. Eastern Sea Trading where it declares that
“the concurrence of [the Senate] is required by our fundamental law in the
making of ‘treaties’ . . . which are, however, distinct and different from
‘executive agreements,’ which may be validly entered into without such
concurrence.”
_______________
See also Exec. Order No. 292 (1987), Book IV, Title I, Sec. 3(1) and 20.
29 Commissioner of Customs v. Eastern Sea Trading, 113 Phil. 333; 3 SCRA
351 (1961) [Per J. Concepcion, En Banc].
30 Id.
31 Id., at p. 338; p. 356.
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Saguisag vs. Ochoa, Jr.
Thus, the distinction rests on the application of Senate concurrence as a
constitutional requirement.
However, from the standpoint of international law, no such distinction
is drawn. Note that for purposes of the Vienna Convention on the Law of
Treaties, in Article 2(1)(a) the term “treaty” is understood as “an
international agreement 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.” . . . The Philippines is a party to the Convention which is
already in force. In the use of the term “treaty,” Article 2(1)(a) of the Vienna
Convention on the Law of Treaties between States and International
Organizations, which is not yet in force, the designation or appellation of
the agreement also carries no legal significance. Provided the instruments
possess the elements of an agreement under international law, they are to
be taken equally as “treaty” without regard to the descriptive names by
which they are designated, such as “protocol,” “charter,” “covenant,”
“exchange of notes,” “modus vivendi,” “convention,” or “executive
agreement.”32 (Emphasis supplied, citations omitted)
Under Article 2(2)33 of the Vienna Convention on the Law of Treaties, in
relation to Article 2(1)(a),34 the designation and
_______________
32 Magallona, Merlin M., A Primer in International Law, pp. 62-64 (1997).
33 Article 2. USE OF TERMS
....
2. The provisions of paragraph 1 regarding the use of terms in the present
Convention are without prejudice to the use of those terms or to the meanings
which may be given to them in the internal law of any State.
34 1. For the purposes of the present Convention:
(a) “Treaty” means an international agreement 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.
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Saguisag vs. Ochoa, Jr.
treatment given to an international agreement is subject to the treatment
given by the internal law of the state party.35 Paragraph 2 of Article 2 specifically
safeguards the states’ usage of the terms “treaty” and “international agreement”
under their internal laws.36
Within the context of our Constitution, the requirement for Senate concurrence
in Article VII, Section 21 of the Constitution connotes a special field of state
policies, interests, and issues relating to foreign relations that the Executive
cannot validly cover in an executive agreement:
As stated above, an executive agreement is outside the coverage of
Article VII, Section 21 of the Constitution and hence not subject to Senate
concurrence. However, the demarcation line between a treaty and an
executive agreement as to the subject matter or content of their coverage is
ill-defined. The courts have not provided reliable guidelines as to the scope
of executive-agreement authority in relation to treaty-making power.
If executive-agreement authority is un-contained, and if what may be the
proper subject matter of a treaty may also be included within the scope of
executive-agreement power, the constitutional requirement of Senate
concurrence could be rendered meaningless. The requirement could be
circumvented by an expedient resort to executive agreement.
 The definite provision for Senate concurrence in the Constitution
indomitably signifies that there must be a regime of national interests,
policies and problems which the Executive branch of the government cannot
deal with in terms of foreign relations except through treaties concurred in
by the Senate under Article VII, Section 21 of
_______________
35 See Magallona, Merlin M., The Supreme Court and International Law:
Problems and Approaches in Philippine Practice, in International Relations
Pamphlet Series No. 12, 16-17 (2010).
36 See 1 Cortien, Olivier and Klein, Pierre, The Vienna Conventions on the
Law of Treaties: A Commentary, pp. 34 and 55 (2011).
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the Constitution. The problem is how to define that regime, i.e., that
which is outside the scope of executive-agreement power of the President and
which exclusively belongs to treaty-making as subject to Senate
concurrence.37 (Emphasis supplied)
Thus, Article VII, Section 21 may cover some but not all types of executive
agreements. Definitely, the determination of its coverage does not depend on the
nomenclature assigned by the President.
Executive agreements are international agreements that pertain to mere
adjustments of detail that carry out well-entrenched national policies and
traditions in line with the functions of the Executive. It includes enforcement of
existing and valid treaties where the provisions are clear. It involves arrangements
that are of a temporary nature. More importantly, it does not amend existing
treaties, statutes, or the Constitution.
In contrast, international agreements that are considered treaties under our
Constitution involve key political issues or changes of national policy. These
agreements are of a permanent character. It requires concurrence by at least two-
thirds of all the members of the Senate.
Even if we assume that the EDCA’s nomenclature as an “executive agreement”
is correct, it is still the type of international agreement that needs to be submitted
to the Senate for concurrence. It involves a key political issue that substantially
alters or reshapes our national and foreign policy.
Fundamentally however, the President’s classification of the EDCA as a mere
“executive agreement” is invalid. Article XVIII, Section 25 requires that the
presence of foreign troops, bases, and facilities must be covered by an
internationally binding agreement in the form of a treaty concurred in by the
Senate.
_______________
37 Magallona, supra note 32 at pp. 66-67.
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V
The Solicitor General, on behalf of government, proposes that we should view
the EDCA merely as an implementation of both the Mutual Defense Treaty and
the VFA. In his view, since both the Mutual Defense Treaty and the VFA have
been submitted to the Senate and concurred in validly under the governing
constitutional provisions at that time, there is no longer any need to have an
implementing agreement similarly submitted for Senate concurrence.
The Chief Justice, writing for the majority of this court, agrees with the
position of the Solicitor General.
I disagree.
The proposal of the Solicitor General cannot be accepted for the following
reasons: (1) the Mutual Defense Treaty, entered into in 1951 and ratified in 1952,
cannot trump the constitutional provision Article XVIII, Section 25; (2) even the
VFA, which could have been also argued as implementing the Mutual Defense
Treaty, was presented to the Senate for ratification; (3) the EDCA contains
significant and material obligations not contemplated by the VFA; and (4)
assuming arguendo that the EDCA only provides the details for the full
implementation of the VFA, Article XVIII, Section 25 still requires that it at least
be submitted to the Senate for concurrence, given the history and context of the
constitutional provision.
VI
The 1951 Mutual Defense Treaty cannot be the treaty contemplated in Article
XVIII, Section 25. Its implementation through an executive agreement, which
allows foreign military bases, troops, and facilities, is not enough. If the Mutual
Defense Treaty is the basis for the EDCA as a mere executive agreement, Article
XVIII, Section 25 of the Constitution will make no sense. An absurd interpretation
of the Constitution is no valid interpretation.
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The Mutual Defense Treaty was entered into by representatives of the
Philippines and the United States on August 30, 1951 and concurred in by the
Philippine Senate on May 12, 1952. The treaty acknowledges that this is in the
context of our obligations under the Charter of the United Nations. Thus, Article I
of the Mutual Defense Treaty provides:
 The Parties undertake, as set forth in the Charter of the United
Nations, to settle any international disputes in which they may be involved
by peaceful means in such a manner that international peace and security
and justice are not endangered and to refrain in their international
relations from the threat or use of force in any manner inconsistent with
the purposes of the United Nations.
Further, the treaty expresses the desire of the parties to “maintain and develop
their individual and collective capacity to resist armed attack.” Thus, in Article III
of the Treaty:
In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist armed attack.
While these provisions in the 1951 Mutual Defense Treaty could reasonably be
interpreted to include activities done jointly by the Philippines and the United
States, nothing in International Law nor in the Constitution can be reasonably
read as referring to this treaty for the authorization for “foreign military bases,
troops, or facilities” after the ratification of the 1987 Constitution.
Again, the constitutional provision reads:
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
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658 SUPREME COURT REPORTS ANNOTATED
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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.
(Emphasis supplied)
There is a time stamp to the obligation under this provision. The prohibition
against “foreign military bases, troops, or facilities,” unless covered by treaty or
allowed through a referendum, becomes effective “after the expiration in 1991 of
the Agreement . . . concerning Military Bases.” The treaty about to expire refers to
the 1947 Military Bases Agreement as amended. This was still in effect at the time
of the drafting, submission, and ratification of the 1987 Constitution.
The constitutional timeline is unequivocal.
The 1951 Mutual Defense Treaty was in effect at the time of the ratification of
the Constitution in 1987. It was also in effect even after the expiration of the
Military Bases Agreement in 1991. We could reasonably assume that those who
drafted and ratified the 1987 Constitution were aware of this legal situation and
of the broad terms of the 1951 treaty yet did not expressly mention the 1951
Mutual Defense Treaty in Article XVIII, Section 25. We can conclude, with sturdy
and unassailable logic, that the 1951 treaty is not the treaty contemplated in
Article XVIII, Section 25.
Besides, the Executive also viewed the VFA as an implementation of the 1951
Mutual Defense Treaty. Yet, it was still submitted to the Senate for concurrence.
Parenthetically, Article 62 of the Vienna Convention on the Law of
Treaties38 provides for the principle of “rebus sic stan-
_______________
38 Article 62. Fundamental Change of Circumstances
1. A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not foreseen
by the par-
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tibus,” in that a fundamental change of circumstances may be a ground to
terminate or withdraw from a treaty.39 Dean Merlin M. Magallona is of the view
that there has been a fundamental change in circumstances that allows the
Philippines to terminate the 1951 Mutual Defense Treaty.40 Although we should
acknowledge this suggestion during the oral arguments by petitioners, we do not
need to go into such an issue and at this time to be able to resolve the controversies
in this case. We await a case that will provide a clearer factual backdrop properly
pleaded by the parties.
_______________
ties, may not be invoked as a ground for terminating or withdrawing from the
treaty unless:
a. The existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
b. The effect of the change is radically to transform the extent of obligations
still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty:
a. If the treaty establishes a boundary; or
b. If the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a treaty
it may also invoke the change as a ground for suspending the operation of the
treaty.
 Vienna Convention of the Law of Treaties (1969)
<https://treaties.un.org/doc/Publication/UNTSNolume%201155/volume-1155-I-
18232-English.pdf> (visited January 11, 2016).
39 Vienna Convention of the Law of Treaties, Art. 62 (1969)
<https://treaties.un.org/doc/Publication/UNTSN/Volume%201155/volume-1155-I-
18232-English.pdf> (visited January 11, 2016).
40 Magallona, Merlin M., A Critical Review of the EDCA, p. 29 (2014)
(Unpublished), annexed to petitioners’ Memorandum.
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In addition, the Mutual Defense Treaty is not the treaty contemplated by
Article XVIII, Section 25 on account of its subject matter. In paragraph 5 of its
Preamble, the Mutual Defense Treaty articulates the parties’ desire “to strengthen
their present efforts to collective defense for the preservation of peace and security
pending the development of a more comprehensive system of regional security in
the Pacific Area.” Article II further clarifies the treaty’s purpose:
Article II
In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain
and develop their individual and collective capacity to resist armed
attack. (Emphasis supplied)
Clearly, none of its provisions provide specifically for the presence of a base,
troops, or facilities that will put it within the ambit of Article XVIII, Section 25.
Its main aim is to provide support against state enemies effectively and efficiently.
Thus, for instance, foreign military bases were covered in the 1947 Military Bases
Agreement.
The VFA cannot also be said to be the treaty required in Article XVIII, Section
25. This is because the United States, as the other contracting party, has never
treated it as such under its own domestic laws. The VFA has the same status as
that of the 1947 Military Bases Agreement in that it is merely an executive
agreement on the part of United States:
As articulated by Constitutional Commissioner Blas F. Ople in the 1986
Constitutional Commission deliberations on this provision, the 1947 RP-
US Military Bases Agreement was ratified by the Philippine Senate,
but not by the United States Senate. In the eyes of Philippine law,
therefore, the Military Bases Agreement was a treaty, but by the laws
of the United States, it was a mere executive agreement.
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This asymmetry in the legal treatment of the Military Bases
Agreement by the two countries was believed to be a slur to our
sovereignty.41 (Emphasis supplied)
In Nicolas, Associate Justice Antonio T. Carpio himself underscored the non-
treaty status of the Visiting Forces Agreement in light of Medellin v. Texas42 in his
Separate Opinion, thus:
Under Medellin, the VFA is indisputably not enforceable as domestic
federal law in the United States. On the other hand, since the Philippine
Senate ratified the VFA, the VFA constitutes domestic law in the
Philippines. This unequal legal status of the VFA violates Section 25,
Article XVIII of the Philippine Constitution, which specifically requires
that a treaty involving the presence of foreign troops in the Philippines
must be equally binding on the Philippines and on the other contracting
State.
In short, the Philippine Constitution bars the efficacy of such a treaty
that is enforceable as domestic law only in the Philippines but
unenforceable as domestic law in the other contracting State. The
Philippines is a sovereign and independent State. It is no longer a colony of
the United States. This Court should not countenance an unequal treaty
that is not only contrary to the express mandate of the Philippine
Constitution, but also an affront to the sovereignty, dignity and
independence of the Philippine State.
There is no dispute that Section 25, Article XVIII of the Philippine
Constitution governs the constitutionality of the VFA. Section 25 states:
_______________
41 J. Puno, Dissenting Opinion in Bayan (Bagong Alyansang Makabayan) v.
Zamora, supra note 2 at pp. 672-673; p. 503.
42 128 S.Ct. 1346; 170 L.Ed.2d 190.
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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.
The clear intent of the phrase “recognized as a treaty by the other
contracting State” is to insure that the treaty has the same legal effect
 on the Philippines as on the other contracting State. This requirement is
unique to agreements involving the presence of foreign troops in the
Philippines, along with the requirement, if Congress is so minded, to hold
a national referendum for the ratification of such a treaty.
The deliberations of the Constitutional Commission reveal the
sensitivity of the framers to the “unacceptable asymmetry” of the then
existing military bases agreement between the Philippines and the United
States. The Philippine Senate had ratified the military bases agreement
but the United States Government refused to submit the same to the U.S.
Senate for ratification. Commissioner Blas Ople explained this
“unacceptable asymmetry” in this manner:
. . . But I think we have acknowledged starting at the committee
level that the bases agreement was ratified by our Senate; it is a
treaty under Philippine law. But as far as the Americans are
concerned, the Senate never took cognizance of this and,
therefore, it is an executive agreement. That creates a
wholly unacceptable asymmetry between the two countries.
Therefore, in my opinion, the right step
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to take, if the government of our country will deem it in the
national interest to terminate this agreement or even to renegotiate
it, is that we must begin with a clean slate; we should not be
burdened by the flaws of the 1947 Military Bases Agreement. I think
that is a very important point. I am glad to be reassured by the two
Gentlemen that there is nothing in these proposals that will bar the
Philippine government at the proper time from exercising the option
of abrogation or termination.
Eventually, the Constitutional Commission required that any
agreement involving the presence of foreign troops in the Philippines must
be “recognized as a treaty by the other contracting State.” This
means that the other contracting State must recognize the agreement as a
treaty, as distinguished from any other agreement, and if its constitutional
processes require, submit the agreement to its proper legislative body for
ratification as a treaty. As explained by Commissioner Father Joaquin
Bernas, S.J., during the deliberations of the Constitutional Commission:
Third, on the last phrase “AND RECOGNIZED AS A TREATY
BY THE OTHER CONTRACTING NATION,” we enter into a
treaty and we want the other contracting party to respect
that document as a document possessing force in the same
way that we respect it. The present situation we have is that the
bases agreement is a treaty as far as we are concerned, but it is only
an executive agreement as far as the United States is concerned,
because the treaty process was never completed in the United States
because the agreement was not ratified by the Senate.
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So, for these reasons, I oppose the deletion of this section
because, first of all, as I said, it does not prevent
renegotiation. Second, it respects the sovereignty of our people and
the people will be in a better position to judge whether to accept the
treaty or not, because then they will be voting not just on an
abstraction but they will be voting after examination of the terms of
the treaty negotiated by our government. And third, the
requirement that it be recognized as a treaty by the other
contracting nation places us on the same level as any other
contracting party.
The following exchanges in the Constitutional Commission explain
further the meaning of the phrase “recognized as a treaty by the other
contracting State”:
FR. BERNAS: Let me be concrete, Madam President, in our
circumstances. Suppose they were to have this situation where our
government were to negotiate a treaty with the United States, and
then the two executive departments in the ordinary course of
negotiation come to an agreement. As our Constitution is taking
shape now, if this is to be a treaty at all, it will have to be submitted
to our Senate for its ratification. Suppose, therefore, that what was
agreed upon between the United States and the executive
department of the Philippines is submitted and ratified by the
Senate, then it is further submitted to the people for its ratification
and subsequently, we ask the United States: “Complete the
process by accepting it as a treaty through ratification by
your Senate as the United States Constitution requires,”
would such an arrangement be in derogation of sovereignty?
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MR. NOLLEDO: Under the circumstances the Commissioner
just mentioned, Madam President, on the basis of the provision of
Section 1 that “sovereignty resides in the Filipino people,” then we
would not consider that a derogation of our sovereignty on the basis
and expectation that there was a plebiscite.
xxx xxx xxx
FR. BERNAS: As Commissioner Romulo indicated, since this
certainly would refer only to the United States, because it is only
the United States that would have the possibility of being allowed
 to have treaties here, then we would have to require that the Senate
of the United States concur in the treaty because under American
constitutional law, there must be concurrence on the part of the
Senate of the United States to conclude treaties.
MR. SUAREZ: Thank you for the clarification.
Under the 1935 Constitution, if I recall it correctly, treaties and
agreements entered into require an exchange of ratification. I
remember that is how it was worded. We do not have in mind here
an exchange of ratification by the Senate of the United States and
by the Senate of the Philippines, for instance, but only an approval
or a recognition by the Senate of the United States of that treaty.
FR. BERNAS: When I say that the other contracting state
must recognize it as a treaty, by that I mean it must perform
all the acts required for that agreement to reach the status
of a treaty under their jurisdiction.
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Thus, Section 25, Article XVIII of the Philippine Constitution requires
that any agreement involving the presence of foreign troops in the
Philippines must be equally legally binding both on the Philippines
and on the other contracting State. This means the treaty must be
enforceable under Philippine domestic law as well as under the domestic
law of the other contracting State. Even Justice Adolfo S. Azcuna,
the ponente of the majority opinion, and who was himself a member of the
Constitutional Commission, expressly admits this when he states in
his ponencia:
The provision is thus designed to ensure that any agreement
allowing the presence of foreign military bases, troops or facilities
in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The
idea is to prevent a recurrence of the situation where the
terms and conditions governing the presence of foreign
armed forces in our territory were binding on us but not
upon the foreign State.
An “equally binding” treaty means exactly what it says — the treaty
is enforceable as domestic law in the Philippines and likewise enforceable
as domestic law in the other contracting State.43 (Emphasis in the original,
citations omitted)
Surprisingly, through his Concurring Opinion in this case, Associate Justice
Carpio has now abandoned his earlier views.
This court’s interpretation of a treaty under Article XVIII, Section 25
in BAYAN, which did away with the requirement that the agreement be
recognized as a treaty by the other contracting party, has resulted in an absurd
situation of political asymmetry between the United States and the Philip-
_______________
43 J. Carpio, Dissenting Opinion in Nicolas v. Romulo, supra note 7 at pp.
308-312; pp. 488-491.
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pines. A relationship where both parties are on equal footing must be
demanded, and from one state to another. The Philippine government must be firm
in requiring that the United States establish stability in its international
commitment, both by legislation and jurisprudence.
The doctrine laid down in BAYAN, insofar as the VFA is concerned, should now
be revisited in light of new circumstances and challenges in foreign policy and
international relations.
VII
Even if we assume that the Mutual Defense Treaty and the VFA are the
treaties contemplated by Article XVIII, Section 25 of the Constitution, this court
must determine whether the EDCA is a valid executive agreement as argued by
respondents.
It is not. The EDCA modifies these two agreements.
Respondents claim that the EDCA is an executive agreement and merely
implements the Mutual Defense Treaty and VFA.44 In arguing that the EDCA
implements the Mutual Defense Treaty, respondents state that the latter has two
operative principles: (1) the Principle of Defensive Reaction under Article IV;45 and
(2) the Principle of Defensive Preparation under Article II.46
_______________
44 Respondents’ Memorandum, pp. 15-16.
45 ARTICLE IV. Each Party recognizes that an armed attack in the Pacific
area on either of the Parties would be dangerous to its own peace and safety and
declares that it would act to meet the common dangers in accordance with its
constitutional processes. Any such armed attack and all measures taken as a result
thereof shall be immediately reported to the Security Council of the United
Nations, Such measures shall be terminated when the Security Council has taken
the measures necessary to restore and maintain international peace and security.
46 ARTICLE II. In order more effectively to achieve the objective of this
Treaty, the Parties separately and jointly by self-help and
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 According to respondents, “[t]he primary concern of the EDCA is the Principle
of Defensive Preparation in order to enhance both parties’ abilities, if required, to
operationalize the Principle of Defensive Reaction.”47 The specific goals
enumerated in the EDCA demonstrate this:
56. The specific purposes of the EDCA — to “[s]upport the Parties’
shared goal of improving interoperability of the Parties’ forces, and for the
Armed Forces of the Philippines (‘AFP’), [to address its] short-term
capabilities gaps, promoting long-term modernization, and helping
maintain and develop additional maritime security, maritime domain
awareness, and humanitarian assistance and disaster relief capabilities”
properly fall within the MDT’s objective of developing the defense
capabilities of the Philippines and the US. The EDCA implements the MDT
by providing for a mechanism that promotes optimal cooperation between
the US and the Philippines.48
Similarly, respondents allege that the EDCA implements the VFA in relation
to the entry of United States troops and personnel, importation and exportation of
equipment, materials, supplies, and other property, and movement of vessels and
aircraft in the Philippines.49 Respondents rely on this court’s pronouncement
in Lim that combat-related activities are allowed under the VFA:
61. Article I of the EDCA provides that its purposes are to support
“the Parties’ shared goal of improving interop-
_______________
mutual aid will maintain and develop their individual and collective capacity
to resist armed attack.
47 Respondents’ Memorandum, p. 15.
48 Id., at p. 16.
49 Id., citing Agreement between the Government Republic of the Philippines
and the Government of the United States of America Regarding the Treatment of
United States Armed Forces Visiting the Philippines (1998), Arts. I, VII, and VIII.
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erability of the Parties’ forces, and for the Armed Forces of the
Philippines (‘AFP’), [to address its] short-term capabilities gaps, promoting
long-term modernization, and helping maintain and develop additional
maritime security, maritime domain awareness, and humanitarian
assistance and disaster relief capabilities.”
62. The Honorable Court in Lim ruled that these activities are
already covered by the VFA. Under Lim,“maritime security, maritime
domain awareness, and humanitarian assistance and disaster relief
capabilities” are activities that are authorized to be undertaken in the
Philippines under the VFA.
63. Article II of the EDCA reiterates the definition of “United States
personnel” in the VFA which means “United States military and civilian
personnel temporarily in the Philippines in connection with activities
approved by the Philippines.”
64. Article III of the EDCA provides for the “Agreed Locations” where
the Philippines authorizes US to “conduct the following activities”:
“training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies and materiel; deploying forces and
materiel; and such other activities as the Parties may agree.”
65. Article IV of the EDCA authorizes the prepositioning and storing
of defense equipment, supplies and materiel. Under Article IV in relation
to Article III of the EDCA, the “prepositioning of equipment, supplies and
materiel” is an “activity” to be approved by the Philippine Government
“through bilateral security mechanisms, such as the MDB and SEB.”
66. In sum, what the EDCA does is to enhance the existing contractual
security apparatus between the Philippines and the US, set up through the
MDT and the VFA. It is the duty of the Honorable Court to allow this
security apparatus enough breathing space to respond to perceived,
anticipated, and actual exigencies.
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As discussed earlier, an executive agreement merely provides for the detailed
adjustments of national policies or principles already existing in other treaties,
statutes, or the Constitution. It involves only the enforcement of clear and specific
provisions of the Constitution, law, or treaty. It cannot amend nor invalidate an
existing statute, treaty, or provision in the Constitution. It includes agreements
that are of a temporary nature.
This is not the case with the EDCA.
The EDCA contains significant and material obligations not contemplated by
the VFA. As an executive agreement, it cannot be given any legal effect. The EDCA
substantially modifies and amends the VFA in at least the following aspects:
First, the EDCA does not only regulate the “visits” of foreign troops. It allows
the temporary stationing on a rotational basis of United States military personnel
and their contractors on physical locations with permanent facilities and pre-
positioned military materiel.
Second, unlike the VFA, the EDCA allows the pre-positioning of military
materiel, which can include various types of warships, fighter planes, bombers,
land and amphibious vehicles, and their corresponding ammunition.
Third, the VFA contemplates the entry of troops for various training exercises.
The EDCA allows our territory to be used by the United States to launch military
and paramilitary operations conducted in other states.
 Fourth, the EDCA introduces new concepts not contemplated in the VFA,
namely: (a) agreed locations; (b) contractors; (c) pre-positioning of military
materiel; and (d) operational control.
Lastly, the VFA did not have provisions that may have been construed as a
restriction or modification of obligations found in existing statutes. The EDCA
contains provisions that
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may affect various statutes including, among others, (a) the jurisdiction of
courts, (b) local autonomy, and (c) taxation.
VIII
Article I(1)(b) of the EDCA authorizes United States forces access to “Agreed
Locations” in the Philippines on a rotational basis.50 Even while the concept of
“rotation” may refer to incidental and transient presence of foreign troops and
contractors, the nature of the “Agreed Locations” is eerily similar to and, therefore,
amounts to basing agreements.
“Agreed Locations” has been defined by the EDCA in Article II(4) as:
Facilities and areas that are provided by the Government of the
Philippines through the AFP and that United states forces, United
States contractors, and others as mutually agreed, shall have the
right to access and use pursuant to this Agreement. Such agreed
Locations may be listed in an annex to be appended to this Agreement, and
may be further described in implementing agreements. (Emphasis
supplied)
As treaties, the 1947 Military Bases Agreement and its various amendments
specified the actual location of the physical locations of United States troops and
facilities. The EDCA, however, now delegates the identification of the location not
to a select Senate Committee or a public body but simply to our military
representatives in the Mutual Defense Board and the Security Enhancement
Board.
More importantly, the extent of access and use allowed to United States forces
and contractors under the EDCA is broad. It is set out in Article III:
_______________
50 (b) Authorizing access to Agreed Locations in the territory of the
Philippines by United States forces on a rotational basis, as mutually determined
by the Parties.
672
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672 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
Article III
Agreed Locations
1. With consideration of the views of the Parties, the Philippines hereby
authorizes and agrees that United States forces, United States contractors,
and vehicles, vessels, and aircraft operated by or for United States forces
may conduct the following activities with respect to Agreed Locations:
training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, arid
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deploying forces and
materiel; and such other activities as the Parties may agree.
2. When requested, the Designated Authority of the Philippines shall
assist in facilitating transit or temporary access by United States forces to
public land and facilities(including roads, ports, and airfields), including
those owned or controlled by local governments, and to other land and
facilities (including roads, ports, and airfields).
3. Given the mutuality of benefits, the Parties agree that
the Philippines shall make Agreed Locations available to United States
forces without rental or similar costs. United States forces shall cover their
necessary operation expenses with respect to their activities at the Agreed
Locations.
4. The Philippines hereby grants to the United States, through bilateral
security mechanisms, such as the MDB and SEB, operational control of
Agreed Locations for construction activities and authority to undertake such
activities on, and make alterations and improvements to, Agreed Locations.
United States forces shall consult on issues regarding such construction;
alterations, and improvements on the Parties’ shared intent that the
technical requirements and construction standards of any such projects
undertaken by or on behalf of United States
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forces should be consistent with the requirements and standards of both
Parties.
....
6. United States forces shall be responsible on the basis of proportionate
use for construction, development, operation, and maintenance costs at
Agreed Locations. Specific funding arrangements may be fined in
Implementing arrangements. (Emphasis supplied)
Parsing the provisions carefully, we find that the Agreed Locations may be

(1) training;
(2) transit;
(3) support and related activities;
(4) refueling of aircraft;
(5) bunkering of vessels;
(6) temporary maintenance of vehicles, vessels, and aircraft;
(7) temporary accommodation of personnel;
(8) communications;
(9) pre-positioning of equipment, supplies, and materiel;
(10) deploying forces and materiel; and
(11) other activities as the parties may agree.
There is no hierarchy among these activities. In other words, functions (2) to
(11) need not be supportive only of training or transit. Function (10), which
pertains to deployment of United States forces and materiel, can be done
independently of whether there are training exercises or whether the troops are
only in transit.
The permission to do all these activities is explicit in the EDCA. Government
has already authorized and agreed that “United States forces, United States
contractors, and vehicles,
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vessels, and aircraft operated by or for United States forces” may conduct all
these activities. Carefully breaking down this clause in Article III(1) of the EDCA,
the authorization is already granted to:
(a) “United States forces”;
(b) “United States contractors”; and
(c) “vehicles, vessels, and aircraft operated by or for United States forces.”
United States military forces will not only be allowed to “visit” Philippine
territory to do a transient military training exercise with their Philippine
counterparts. They are also allowed to execute, among others, the following
scenarios:
One: Parts of Philippine territory may be used as staging areas for special or
regular United States military personnel for intervention in conflict areas in the
Southeast Asian region. This can be in the form of landing rights given to their
fighter jets and stealth bombers or way stations for SEALS or other special units
entering foreign territory in states not officially at war with the Philippines.
Two: Parts of Philippine territory may be used to supplement overt
communication systems of the United States forces. For instance, cyberwarfare
targeting a state hostile to the United States can be launched from any of the
Agreed Locations to pursue their interests even if this will not augur well to
Philippine foreign policy.
Three: Parts of Philippine territory may be used to plan, deploy, and supply
covert operations done by United States contractors such as Blackwater and other
mercenary groups that have been used by the United States in other parts of the
world. The EDCA covers these types of operations within and outside Philippine
territory. Again, the consequences to Philippine foreign policy in cases where
targets are found in neighboring countries would be immeasurable.
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The Visiting Forces Agreement does not cover these sample activities. Nor does
it cover United States contractors.
IX
Blanket authority over Agreed Locations is granted under Article VI, Section
3 of the EDCA. The United States forces are given a broad range of powers with
regard to the Agreed Locations that are “necessary for their operational control or
defense.”51 This authority extends to the protection of United States forces and
contractors. In addition, the United States is merely obligated to coordinate with
Philippine authorities the measures they will take in case they deem it necessary
to take action.
In contrast, the Mutual Defense Treaty is different. It is specific to the
maintenance and development of the Philippines and the United States’ individual
and collective capacity to resist armed attack. The parties’ goal under the Mutual
Defense Treaty is to enhance collective defense mechanisms for the preservation
of peace and security in the Pacific area.52
While certain activities such as “joint RP-US military exercises for the purpose
of developing the capability to resist an armed attack fall . . . under the provisions
of the RP-US Mutual Defense Treaty,”53 the alleged principles of Defensive
Reaction and Defensive Preparation do not license the ceding
_______________
51 Agreement between the Government of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation
(2014), Art. VI(3). United States forces are authorized to exercise all rights and
authorities within Agreed Locations that are necessary for their operational
control or defense, including taking appropriate measures to protect United States
forces and United States contractors. The United States should coordinate such
measures with appropriate authorities of the Philippines.
52 Mutual Defense Treaty between the Republic of the Philippines and the
United States of America (1951), Preamble, par. 4.
53 Nicolas v. Romulo, supra note 7 at p. 284; p. 461.
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 Saguisag vs. Ochoa, Jr.
of authority and control over specific portions of the Philippines to foreign
military forces without compliance with the Constitutional requirements. 54 Such
grant of authority and control over Agreed Locations to foreign military forces
involves a drastic change in national policy and cannot be done in a mere executive
agreement.
Moreover, nothing in the VFA provides for the use of Agreed Locations to
United States forces or personnel, considering that the VFA focuses on the
visitation of United States armed forces to the Philippines in relation to joint
military exercises:
Preamble
The Government of the United States of America and the Government of the
Republic of the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the
United Nations and their desire to strengthen international and regional security
in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951;
Noting that from time to time elements of the United States armed forces may
visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests;
Recognizing the desirability of defining the treatment of United States
personnel visiting the Republic of the Philippines[.] (Emphasis supplied)
_______________
54 See Const., Art. XVIII, Sec. 25.
3. No permanent US basing and support facilities shall be established.
Temporary structures such as those for troop billeting, classroom instruction and
messing may be set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will US
Forces operate independently during field training exercises (FTX). AFP and US
Unit Commanders will retain command over their respective forces under the
overall authority of the Exercise Co-Directors. RP and US participants shall
comply with operational instructions of the AFP during the FTX.
5. The exercise shall be conducted and completed within a period of not more
than six months, with the projected participation of 660 US personnel and 3,800
RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind
up and terminate the Exercise and other activities within the six month Exercise
period.
6. The Exercise is a mutual counter-terrorism advising, assisting and
training Exercise relative to Philippine efforts against the ASG, and will be
conducted on the Island of Basilan. Further advising, assisting and training
exercises shall be conducted in Malagutay and the Zamboanga area. Related
activities in Cebu will be for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be
deployed with AFP field commanders. The US teams shall remain at the Battalion
Headquarters and, when approved, Company Tactical headquarters where they
can observe and assess the performance of the AFP Forces.
8. US exercise participants shall not engage in combat, without prejudice to
their right of self-defense.
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677 joint military exercises is covered by the VFA. Hence, under

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9. These terms of Reference are for purposes of this Exercise only and do not
In Lim, the Terms of Reference55 of the “Balikatan 02-1” create additional legal obligations between the US Government and the Republic
_______________ of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
55 The Terms of Reference provides:
a. The Exercise shall involve the conduct of mutual military assisting, advising
I. POLICY LEVEL
and training of RP and US Forces with the primary objective of enhancing the
1. The Exercise shall be Consistent with the Philippine Constitution and all
operational capabilities of both forces to combat terrorism.
its activities shall be in consonance with the laws of the land and the provisions of
b. At no time shall US Forces operate independently within RP territory.
the RP-US Visiting Forces Agreement (VFA).
c. Flight plans of all aircraft involved in the exercise will comply with the local
2. The conduct of this training Exercise is in accordance with pertinent
air traffic regulations.
United Nations resolutions against global terrorism as understood by the
2. ADMINISTRATION & LOGISTICS
respective parties.
a. RP and US participants shall be given a country and area briefing at the
start of the Exercise. This briefing shall acquaint US Forces on the culture and
sensitivities of the Filipinos and the provisions of the VFA. The briefing shall also
promote the full cooperation on the part of the RP and US participants for the
successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources, equipment and other
assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and
US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the
Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise
Directorate m Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon
City.
b. Local media relations will be the concern of the AFP and all public affairs
guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly by
RP and US Forces in accordance with their respective laws and regulations, and
in consultation with community and local government officials.
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the VFA, activities such as joint exercises, which “include training on new
techniques of patrol and surveillance to protect the nation’s marine resources, sea
search-and-rescue operations to assist vessels in distress, disaster relief
operations, civic action projects such as the building of school houses, medical and
humanitarian missions, and the like,”56 are authorized. However, Lim specifically
provided for the context of the conduct of the combat-related activities under the
VFA: President George W. Bush’s international antiterrorism campaign as a result
of the events on September 11, 2001.57
Meanwhile, the EDCA unduly expands the scope of authorized activities to
Agreed Locations with only a vague reference to the VFA:
Article I
Purpose and Scope
1. This Agreement deepens defense cooperation between the Parties
and maintains and develops their individual and collective capacities, in
furtherance of Article II of the MDT, which states that the Parties
separately and jointly by self-help and mutual aid will maintain and
develop their individual capacity to resist armed attack, and within the
context of VFA. This includes:
(a) Supporting the Parties’ shared goal of improving interoperability
of the Parties’ forces, and for the Armed Forces of the Philippines (“AFP”),
addressing short-term capabilities gaps, promoting long-term
modernization, and helping maintain and develop additional maritime
security, maritime domain awareness, and humanitarian assistance and
disaster relief capabilities; and
(b) Authorizing access to Agreed Locations in the territory of the
Philippines by United States forces on a rotational basis, as mutually
determined by the Parties.
_______________
56 Lim v. Executive Secretary, supra note 5.
57 Id., at p. 564; p. 745.
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2. In furtherance of the MDT, the Parties mutually agree that this
Agreement provides the principal provisions and necessary authorizations
with respect to Agreed Locations.
3. The Parties agree that the United States may undertake the
following types of activities in the territory of the Philippines in relation to
its access to and use of Agreed Locations: security cooperation exercises; joint
and combined training activities; humanitarian assistance and disaster
relief activities; and such other activities as may be agreed upon by the
Parties. (Emphasis supplied)
The VFA was ratified in 1998. However, in 2011, the Obama Administration
announced its plan of intensifying its presence in the Asia-Pacific region.58 The
United States hinges this pivot on maritime peace and security in the region in
relation to a stable international economic order.59 Hence, their Department of
Defense enumerates three maritime objectives: “to safeguard the freedom of the
seas; deter conflict and coercion; and promote adherence to international law and
standards.”60
To achieve these objectives, the United States conducts operations, exercises,
and training with several countries it
_______________
58 Manyin, Mark E., Pivot to the Pacific? The Obama Administration’s
“Rebalancing” Toward Asia (2012)
<https://www.fas.org/sgp/crs/natsec/R42448.pdf> (visited January 11,
2016). See Odom, Jonathan G., What Does a “Pivot” or “Rebalance” Look Like?
Elements of the US Strategic Turn Towards Security in the Asia-Pacific Region and
Its Waters, 14 APLPJ 2-8 (2013); O’Rourke, Ronald, Maritime Territorial and
Exclusive Economic Zone (EEZ) Disputes Involving China: Issues for
Congress (2015) <https://www.fas.org/sgp/crs/row/R42784.pdf> (visited January
11, 2016).
59 United States Department of Defense, The Asia-Pacific Maritime Security
Strategy: Achieving US National Security Objectives in a Changing Environment,
pp. 1-2 <http://www.defense.gov/Portals/1/Documents/pubs/NDAA%20A-
P_Maritime_SecuritY_Strategy-08142015-1300-FINALFORMAT.PDF (visited
January 11, 2016).
60 Id., at p. 1.
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considers allies in the region.61 Nevertheless, key to the United States’ military
strategy is the enhancement of its forward presence in the Asia-Pacific:
Force Posture
One of the most important efforts the Department of Defense has
underway is to enhance our forward presence by bringing our finest
capabilities, assets, and people to the Asia-Pacific region. The U.S. military
presence has underwritten security and stability in the Asia-Pacific region
for more than 60 years. Our forward presence not only serves to deter
regional conflict and coercion, it also allows us to respond rapidly to
maritime crises. Working in concert with regional allies and partners
enables us to respond more effectively to these crises.
The United States maintains 368,000 military personnel in the Asia-
Pacific region, of which approximately 97,000 are west of the International
Date Line. Over the next five years, the US. Navy will increase the number
of ships assigned to Pacific Fleet outside of US territory by approximately
30 percent, greatly improving our ability to maintain a more regular and
persistent maritime presence in the Pacific. And by 2020, 60 percent of naval
and overseas air assets will be homeported in the Pacific region. The
Department will also enhance Marine Corps presence by developing a more
distributed and sustainable laydown model.
Enhancing our forward presence also involves using existing assets in
new ways, across the entire region, with an emphasis on operational
flexibility and maximizing the value of US assets despite the tyranny of
distance. This is why the Department is working to develop a more
distributed, resilient, and sustainable posture. As part of this effort, the
United States will maintain its presence in Northeast Asia, while
enhancing defense posture across the Western Pacific, Southeast Asia, and
the Indian Ocean.
_______________
61 Id., at pp. 23-24.
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....
In Southeast Asia, the Department is honing an already robust bilateral
exercise program with our treaty ally, the Republic of the Philippines, to
assist it with establishing a minimum credible defense more effectively. We
are conducting more than 400 planned events with the Philippines in 2015,
including our premier joint exercise, Balikatan, which this year was the
largest and most sophisticated ever. During this year’s Balikatan, more than
15,000 US, Philippine, and Australian military personnel exercised
operations involving a territorial defense scenario in the Sulu Sea, with
personnel from Japan observing.62 (Emphasis supplied)
These changes in United States policy are reflected in the EDCA and not in the
VFA. Thus, there is a substantial change of objectives.
If, indeed, the goal is only to enhance mutual defense capabilities under the
Mutual Defense Treaty through conduct of joint military exercises authorized by
the VFA, then it behooves this court to ask the purpose of providing control and
authority over Agreed Locations here in the Philippines when it is outside the
coverage of both the Mutual Defense Treaty and the VFA. Through a vague
reference to the VFA, respondents fail to establish how the EDCA merely
implements the VFA. They cannot claim that the provisions of the EDCA merely
make use of the authority previously granted under the VFA. What is clear is that
the Agreed Locations become a platform for the United States to execute its new
military strategy and strengthen its presence in the Asia-Pacific, which is clearly
outside the coverage of the VFA.
In addition, the EDCA does not merely implement the Mutual Defense Treaty
and VFA when it provides for the entry of United States private contractors into
the Philippines.
_______________
62 Id., at pp. 22-23.
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In the EDCA, United States contractors are defined as follows:
3. “United States contractors” means companies and firms, and their
employees, under contract or subcontract to or on behalf of the United
States Department of Defense. United States contractors are not included
as part of the definition of United States personnel in this Agreement,
including within the context of the VFA.63 (Emphasis supplied)
This definition admits that the VFA does not provide for the entry of
contractors into Philippine territory. The activities that United States contractors
are allowed to undertake are specific to United States forces or personnel only as
can be gleaned from this court’s decisions in BAYAN, Lim, and Nicolas. Hence, the
extensive authority granted to United States contractors cannot be sourced from
the VFA:
Article II
DEFINITIONS
....
4. “Agreed Locations” means facilities and areas that are provided by
the Government of the Philippines through the AFP and that United States
forces, United States contractors,and others as mutually agreed, shall have
the right to access and use pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be appended to this Agreement, and
may be further described in implementing arrangements.
....
_______________
63 Agreement between the Government of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation
(2014), Art. II(3).
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Article III
AGREED LOCATIONS
1. With consideration of the views of the Parties, the Philippines
hereby authorizes and agrees that United States forces, United States
contractors, and vehicles, vessels, and aircraft operated by or for United
States forces may conduct the following activities with respect to Agreed
Locations: training; transit; support and related activities; refuel big of
aircraft; bunkering of vessels; temporary maintenance of vehicles, vessels,
and aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deploying forces and
materiel; and such other activities as the Parties may agree.
....
Article IV
EQUIPMENT, SUPPLIES, AND MATERIEL
....
4. United States forces and United States contractors shall have
unimpeded access to Agreed Locations for all matters relating to the
prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal
of such equipment, supplies and materiel.
5. The Parties share an intent that United States contractors may
carry out such matters in accordance with, and to the extent permissible
under, United States laws, regulations, and policies. (Emphasis supplied)
Respondents, through the Office of the Solicitor General, insist that the EDCA
is an implementing agreement of the Mutual Defense Treaty and the VFA. They
do so based on the conclusion that all treaties or agreements entered into by the
Philippines pursuant to certain principles contained in the Mutual Defense Treaty
may be considered subservient to these treaties. This will substantially weaken
the spirit of
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Article XVIII, Section 25 and the sovereign desire to achieve an independent
foreign policy.
X
The EDCA authorizes the use of Philippine territory as bases of operations.
Although not as permanent as those set up pursuant to the 1947 Military Bases
Agreement, they are still foreign military bases within the contemplation of Article
XVIII, Section 25 of the Constitution.
The development and use of these Agreed Locations are clearly within the
discretion of the United States. The retention of ownership by the Philippines
under Article V(1)64 of the EDCA does not temper the wide latitude accorded to the
other contracting party. At best, the United States’ only obligation is to consult
and coordinate with our government. Under the EDCA, the consent of the
Philippine government does not extend to the operations and activities to be
conducted by the United States forces and contractors. Operational control
remains solely with the United States government. The agreement did not create
a distinction between domestic and international operations. Ownership of the
Agreed Locations under the EDCA is a diluted concept, with the Philippine
government devoid of any authority to set the parameters for what may and may
not be conducted within the confines of these areas.
What constitutes a “base” in the context of United States-Philippine relations
may be explored by revisiting the 1947 Military Bases Agreement. 65 In one of the
agreement’s pream-
_______________
64 “The Philippines shall retain ownership of and title to Agreed Locations.”
65 A copy is contained in Treaties and Other International Agreements of the
United States of America 1776-1949, as compiled under the direction of Charles I.
Bevans, LL.B., Assistant Legal Adviser, Department of
State <http://kahimyang.info/kauswagan/Downloads.xhtml?sortorder=znoblair>
(visited November 5, 2015).
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bular clauses, the United States and Philippine governments agreed that in
line with cooperation and common defense, the United States shall be granted the
use of certain lands of the public domain in the Philippines, free of rent.66 In line
with the promotion of mutual security and territorial defense, the extent of rights
of the contracting parties in the use of these lands was described in Article III of
the agreement:
Article III
Description of Rights
1. It is mutually agreed that the United States shall have the rights,
power and authority within the bases which are necessary for the
establishment, use, operation and defense thereof or appropriate for the
control thereof and all the rights, power and authority within the limits of
territorial waters and air space adjacent to, or in the vicinity of, the bases
which are necessary to provide access to them, or appropriate for their
control.
2. Such rights, power and authority shall include, inter alia, the right,
power and authority:
a) to construct (including dredging and filling), operate, maintain,
utilize, occupy, garrison and control the bases;
b) to improve and deepen the harbors, channels, entrances and
anchorages, and to construct or maintain necessary roads and bridges
affording access to the bases;
c) to control (including the right to prohibit) insofar as may be
required for the efficient operation and safety of
_______________
66 WHEREAS, the Governments of the United States of America and of the
Republic of the Philippines are desirous of cooperating in the common defense of
their two countries through arrangements consonant with the procedures and
objectives of the United Nations, and particularly through a grant to the United
States of America by the Republic of the Philippines in the exercise of its title and
sovereignty, of the use, free of rent, in furtherance of the mutual interest of both
countries, of certain lands of the public domain.
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the bases, and within the limits of military necessity, anchorages,
moorings, landings, takeoffs, movements and operation of ships and
waterborne craft, aircraft and other vehicles on water, in the air or on land
comprising or in the vicinity of the bases;
d) the right to acquire, as may be agreed between the two
Governments, such rights of way, and to construct thereon, as may be
required for military purposes, wire and radio communications facilities,
including sub-marine and subterranean cables, pipe lines and spur tracks
from railroads to bases, and the right, as may be agreed upon between the
two Governments to construct the necessary facilities;
e) to construct, install, maintain, and employ on any base any type of
facilities, weapons, substance, device, vessel or vehicle on or under the
ground, in the air or on or under the water that may be requisite or
appropriate, including meteorological systems, aerial and water navigation
lights, radio and radar apparatus and electronic devices, of any desired
power, type of emission and frequency.
3. In the exercise of the above mentioned rights, power and authority,
the United States agrees that the powers granted to it will not be used
unreasonably or, unless required by military necessity determined by the
two Governments, so as to interfere with the necessary rights of navigation,
aviation, communication, or land travel within the territories of the
Philippines. In the practical application outside the bases of the rights,
power and authority granted in this Article there shall be, as the occasion
requires, consultation between the two Governments. (Emphasis supplied)
The bases contemplated by the 1947 Military Bases Agreement contain the
elements of (a) absolute control of space; (b) the presence of a foreign command;
and (c) having a purpose of a military nature. The agreement also relegates the
role of the Philippine government to a mere “consultant” in cases of applications
falling outside the terms provided in Article III.
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The EDCA contains similar elements.
However, the EDCA has an open-ended duration. Despite having an initial
term of 10 years, Article XII(4) specifically provides for the automatic continuation
of the agreement’s effectivity until a party communicates its intent to terminate. 67
The purpose of the Agreed Locations is also open-ended. At best, its definition
and description of rights provide that the areas shall be for the use of United States
forces and contractors. However, short of referring to Agreed Locations as bases,
the EDCA enumerates activities that tend to be military in nature, such as
bunkering of vessels, pre-positioning of equipment, supplies, and materiel, and
deploying forces and materiel.68 The United States is also allowed to undertake the
construction of permanent facilities,69 as well as to use utilities and its own
telecommunications systems.70
_______________
67 4. This Agreement shall have an initial term of ten years, and thereafter,
it shall continue in force automatically unless terminated by either Party by giving
one year’s written notice through diplomatic channels of its intention to terminate
this Agreement.
68 Agreement between the Government of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation
(2014), Art. III(1).
69 Agreement between the Government of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation
(2014), Art. V(4) provides: All buildings, non-relocatable structures, and
assemblies affixed to the land, in the Agreed Locations, including ones altered or
improved by United States forces, remain the property of the Philippines.
Permanent buildings constructed by United States forces become the property of
the Philippines, once constructed, but shall be used by United States forces until
no longer required by United States forces.
70 Agreement between the Government of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation
(2014), Art. VII provides for the use of utilities and communication systems:
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Most significant is the Philippine government’s grant to the United States
government of operational control over the Agreed Locations:71
Article VI
Security
....
3. United States forces are authorized to exercise all rights and
authorities within Agreed Locations that are necessary for their
operational control or defense, including taking appropriate measures to
protect United States forces and United States contractors. The United
States should coordinate such measures with appropriate authorities of the
Philippines.
_______________
1. The Philippines hereby grants to United States forces and United States
contractors the use of water, electricity, and other public utilities on terms and
conditions, including rates or charges, no less favorable than those available to the
AFP or the Government of the Philippines in like circumstances, less charges for
taxes and similar fees, which will be for the account of the Philippine Government.
United States forces’ costs shall be equal to their pro rata share of the use of such
utilities.
2. The Parties recognize that it may be necessary for United States forces to
use the radio spectrum. The Philippines authorizes the United States to operate
its own telecommunication systems (as telecommunication is defined in the 1992
Constitution and Convention of the International Telecommunication Union
[“ITU”]). This shall include the right to utilize such means and services as required
to ensure the full ability to operate telecommunication systems, and the right to
use all necessary radio spectrum allocated for this purpose. Consistent with the
1992 Constitution and Convention of the ITU, United States forces shall not
interfere with frequencies in use by local operators. Use of the radio spectrum shall
be free of cost to the United States.
71 Agreement between the Government of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation
(2014), Art. III(4).
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4. The Parties shall take all reasonable measures to ensure the protection,
safety, and security of United States property from seizure by or conversion to the
use of any party other than the United States, without the prior written consent
of the United States. (Citation omitted)
The United States Department of Defense Dictionary of Military and
Associated Terms72 defines “operational control” as:
[O]perational control — The authority to perform those functions of
command over subordinate forces involving organizing and employing
commands and forces, assigning tasks, designating objectives, and giving
authoritative direction necessary to accomplish the mission. Also called
OPCON.
Similar to the 1947 Military Bases Agreement, the role of the Philippine
government has been reduced to that of a consultant, except that the EDCA
avoided the use of this label.
In some respects, too, the EDCA is similar to the Treaty of Friendship,
Cooperation and Security between the Government of the Republic of the
Philippines and the Government of the United States of America, which was
rejected by the
_______________
72 November 8, 2010, As Amended Through June 15, 2015
<http://fas.org/irp/doddir/dod/jpl_02.pdf> (visited November 5, 2015):
1. Scope
The Joint Publication 1-02, Department of Defense Dictionary of Military and
Associated Terms sets forth standard US military and associated terminology to
encompass the joint activity of the Armed Forces of the United States. These
military and associated terms, together with their definitions, constitute approved
Department of Defense (DOD) terminology for general use by all DOD components.
2. Purpose
This publication supplements standard English-language dictionaries and
standardizes military and associated terminology to improve communication and
mutual understanding within DOD, with other federal agencies, and among the
United States and its allies.
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Philippine Senate in 1991. This rejected treaty73 defines installations as:
“Installations” on the base authorized for use by the United States
forces are buildings and structures to include non-removable buildings,
structures, and equipment therein owned by the Government of the
Philippines, grounds, land or sea areas specifically delineated for the
purpose. “Non-removable buildings and structures” refer to buildings,
structures, and other improvements permanently affixed to the ground,
and such
_______________
73 This treaty contains a Supplementary Agreement on Installations and
Military operating Procedures (Supplementary Agreement Number Two), which
provides:
ARTICLE 1
PURPOSES OF THE UNITED STATES MILITARY PRESENCE IN THE
PHILIPPINES
The Government of the Republic of the Philippines authorizes the Government
of the United States of America to station United States forces in the Philippines,
and in connection therewith to use certain installations in Subic Naval Base, which
is a Philippine military base, designated training areas and air spaces, and such
other areas as may be mutually agreed, for the following purposes and under the
terms and conditions stipulated in this Agreement:
a. training of United States forces and joint training of United States forces
with Philippine forces;
b. servicing, provisioning, maintenance, support and accommodation of
United States forces;
c. logistics supply and maintenance points for support of United States forces;
d. transit point for United States forces and United States military personnel;
e. projecting or operating United States forces from the installations under
conditions of peace or war, provided that military combat operations of United
States forces directly launched from installations on the base authorized for
United States use shall be subject to prior approval of the Government of the
Philippines;
f. such other purposes, consistent with this Agreement, as may be mutually
agreed.
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equipment, including essential utility systems such as energy and
water production and distribution systems and heating and air
conditioning systems that are an integral part of such buildings and
structures, which are essential to the habitability and general use of such
improvements and are permanently attached to or integrated into the
property.
The treaty, which was not concurred in by the Senate, sets the parameters for
defense cooperation and the use of installations in several provisions:
Article IV
Use of Installations by the US Forces
1. Subject to the provisions of this Agreement, the Government of the
Philippines authorizes the Government of the United States to continue to
use for military purposes certain installations in Subic Naval Base.
2. The installations shall be used solely for the purposes authorized
under this Agreement, and such other purposes as may be mutually agreed
upon.
3. Ownership of all existing non-removable buildings and structures
in Subic Naval Base is with the Government of the Philippines which has
title over them. The Government of the Philippines shall also become owner
of all non-removable buildings and structures that shall henceforth be
constructed in Subic Naval Base immediately after their completion, with
title thereto being vested with the Government of the Philippines.
4. The Government of the United States shall not remove, relocate,
demolish, reconstruct or undertake major external alterations of non-
removable buildings and structures in Subic Naval Base without the
approval of the Philippine commander. The United States shall also not
construct any removable or non-removable buildings or structures without
the approval of the Philippine Commander. The Philippine Commander
will grant such
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approval for reasons of safety as determined jointly by the Philippine
and United States Commanders.
....
8. The Government of the United States shall bear costs of operations
and maintenance of the installations authorized for use in accordance with
Annex B to this Agreement.
9. The Government of the Philippines will, upon request, assist the
United States authorities in obtaining water, electricity, telephone and
 other utilities. Such utilities shall be provided to the Government of the
United States, United States contractors and United States personnel for
activities under this Agreement at the rates, terms and conditions not less
favorable than those available to the military forces of the Philippine
government, and free of duties, taxes, and other charges.
....
Article VII
Defense Cooperation and Use of Philippine Installations
1. Recognizing that cooperation in the areas of defense and security
serves their mutual interest and contributes to the maintenance of peace,
and reaffirming their existing defense relationship, the two Governments
shall pursue their common concerns in defense and security.
2. The two Governments recognize the need to readjust their defense
and security relationship to respond to existing realities in the national,
regional, and global environment. To this end, the Government of the
Republic of the Philippines allows the Government of the United States to
use installations in Subic Naval Base for a specified period, under specific
conditions set forth in Supplementary Agreement Number Two: Agreement
on Installations and Military Operating Procedures and Supplementary
Agreement Number Three: Agreement on the Status of Forces.
694
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3. Both governments shall also cooperate in the maintenance,
upgrading and modernization of the defense and security capabilities of the
armed forces of both countries, particularly of those of the Republic of the
Philippines. In accordance with the common desire of the Parties to
improve their defense relationship through balanced, mutual contributions
to their common defense, the Government of the United States shall,
subject to the constitutional procedures and to United States Congressional
action, provide security assistance to the Government of the Philippines to
assist in the modernization and enhancement of the capabilities of the
Armed Forces of the Philippines and to support appropriate economic
programs.
The 1987 Constitution does not proscribe the establishment of permanent or
temporary foreign military bases. However, the Constitution now requires that
decisions on the presence of foreign military bases, troops, and facilities be not the
sole prerogative of the President and certainly not the prerogative at all of the
Secretary of Defense or Philippine Representatives to the Mutual Defense Board
and the Security Enhancement Board.
Absent any transmission by the President to the Senate, the EDCA remains a
formal official memorial of the results of intensive negotiations only. It has no legal
effect whatsoever, and any implementation at this stage will be grave abuse of
discretion.
XI
Thus, the EDCA amends the VFA. Since the VFA is a treaty, the EDCA cannot
be implemented.
Treaties, being of the same status as that of municipal law, may be modified
either by another statute or by the Constitu-
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tion itself.74 Treaties such as the VFA cannot be amended by an executive
agreement.
XII
Petitioners invoke this court’s power of judicial review to determine whether
respondents from the Executive Branch exceeded their powers and prerogatives in
entering into this agreement on behalf of the Philippines “in utter disregard of the
national sovereignty, territorial integrity and national interest provision of the
Constitution, Section 25 of the Transitory provisions of the Constitution, Section
21 and other provisions of the Philippine Constitution and various Philippine laws
and principles of international law.”75
Petitioners submit that all requisites for this court to exercise its power of
judicial review are present.76 Petitioners in G.R. No. 212444 discussed that they
had legal standing and they raised justiciable issues. Petitioners in G.R. No.
212426 similarly discussed their legal standing, the existence of an actual case or
controversy involving a conflict of legal rights, and the ripeness of the case for
adjudication.77
Respondents counter that only the Senate may sue on matters involving
constitutional prerogatives, and none of the petitioners are Senators. 78 They
submit that “[t]he silence and active non-participation of the Senate in the current
proceedings is an affirmation of the President’s characterization of the EDCA as
an executive agreement,”79 and “there is no such
_______________
74 See Gonzales v. Hechanova, 118 Phil. 1065; 9 SCRA 230 (1963)
[Per J.Concepcion, En Banc] and Ichong v. Hernandez, 101 Phil. 1155 (1957)
[Per J.Labrador, En Banc].
75 Memorandum for Petitioners Bayan, et al., pp. 3-4.
76 Id., at pp. 19-25; Memorandum for Petitioners Saguisag, pp. 11-17;
Memorandum for Petitioners-in-Intervention KMU, pp. 5-6.
77 Memorandum for Petitioners Saguisag, pp. 11-17.
78 Memorandum for Respondents, pp. 4-5.
79 Id., at p. 6.
 696
696 SUPREME COURT REPORTS ANNOTATED
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actual conflict between the Executive and the Senate.”80 They add that the
overuse of the transcendental importance exception “has cheapened the value of
the Constitution’s safeguards to adjudication.”81
Article VIII, Section 1 of the Constitution now clarifies the extent of this court’s
power of judicial review “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.”82
The 1936 landmark case of Angara v. Electoral Commission83explained the
fundamental principle of separation of powers among government branches and
this court’s duty to mediate in the allocation of their constitutional boundaries:
In times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the
integral or constituent units thereof.
. . . The Constitution sets forth in no uncertain language the restrictions
and limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitation and restric-
_______________
80 Id., at p. 7.
81 Id., at p. 8.
82 Const., Art. VIII, Sec. 1.
83 63 Phil. 139 (1936) [Per J. Laurel, En Banc].
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tions embodied in our Constitution are real as they should be in any
living constitution. . . .
The Constitution is a definition of the powers of government. . . The
Constitution itself has provided for the instrumentality of the judiciary as
the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to
it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed “judicial supremacy” which
properly is the power of judicial review under the Constitution. Even then,
this power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented.
Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord
the presumption of constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the
governments of the government.84
Jurisprudence abounds on these four requisites for the exercise of judicial
review. It must be shown that an actual case or controversy exists; that petitioners
have legal standing; that they raised the constitutionality question at the earliest
_______________
84 Id., at pp. 157-159.
698
698 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
possible opportunity; and that the constitutionality question is the very lis
mota of the case.85
This court can only exercise its power of judicial review after determining the
presence of all requisites, such as an actual case or controversy, in consideration
of the doctrine of separation of powers. It cannot issue advisory opinions nor
overstep into the review of the policy behind actions by the two other coequal
branches of government. It cannot assume jurisdiction over political questions.
XIII
The requirement for an actual case or controversy acknowledges that courts
should refrain from rendering advisory opinions concerning actions by the other
branches of government.86
Courts resolve issues resulting from adversarial positions based on existing
facts established by the parties who seek the court’s application or interpretation
of a legal provision that affects them.87It is not for this court to trigger or reenact
the political debates that resulted in the enactment of laws after considering
broadly construed factual circumstances to allow a general application by the
Executive.88
The requisite actual case or controversy means the existence of “a conflict of
legal rights, an assertion of opposite
_______________
85 See Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., 460 Phil. 830, 892; 415 SCRA 44, 133 (2003)
[Per J.Carpio-Morales, En Banc].
86 Lozano v. Nograles, 607 Phil. 334, 340; 589 SCRA 354, 358 (2009)
[Per CJ.Puno, En Banc]. See also J. Leonen, Dissenting and Concurring Opinion
in Disini, Jr. v. Secretary of Justice, G.R. Nos. 203335, February 18, 2014, 716
SCRA 237, 535 [Per J. Abad, En Banc].
87 Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21, 2015, 747
SCRA 1 [Per J. Leonen, En Banc].
88 Id.
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legal claims susceptible of judicial resolution; the case must not be moot or
academic or based on extralegal or other similar considerations not cognizable by
a court of justice.”89 It means the pleadings show “an active antagonistic assertion
of a legal right, on the one hand, and a denial thereof on the other; that is, it must
concern a real and not a merely theoretical question or issue.”90
Thus, it is not this court’s duty to “rule on abstract and speculative issues
barren of actual facts.”91 Ruling on abstract cases presents the danger of
foreclosing litigation between real parties, and rendering advisory opinions
presents the danger of a court that substitutes its own imagination and predicts
facts, acts, or events that may or may not happen. 92 Facts based on judicial proof
must frame the court’s discre-
_______________
89 Information Technology Foundation of the Philippines v. COMELEC, 499
Phil. 281, 304; 460 SCRA 291, 312 (2005) [Per J. Panganiban, En Banc],
citing Republic v. Tan, G.R. No. 145255, March 30, 2004, 426 SCRA 485
[Per J. Carpio-Morales, Third Division]. See also J. Leonen, Dissenting and
Concurring Opinion in Disini, Jr. v. Secretary of Justice, supra note 86 at p. 534;
and In the Matter of Save the Supreme Court Judicial Independence and Fiscal
Autonomy Movement v. Abolition of Judiciary Development Fund (JDF) and
Reduction of Fiscal Autonomy, UDK-15143, January 21, 2015, 746 SCRA 352
[Per J. Leonen, En Banc].
90 Information Technology Foundation of the Philippines v. COMELEC, id.,
at p. 305; pp. 312-313, citing De Lumen v. Republic, 50 OG No. 2, February 14,
1952, 578. See also J. Leonen, Dissenting and Concurring Opinion in Disini, Jr. v.
Secretary of Justice, id., at pp. 534-535; and In the Matter of Save the Supreme
Court Judicial Independence and Fiscal Autonomy Movement v. Abolition of
Judiciary Development Fund (JDF) and Reduction of Fiscal Autonomy, id.
91 J. Leonen, Dissenting Opinion in Imbong v. Ochoa, Jr., G.R. Nos. 204819,
April 8, 2014, 721 SCRA 146, 731 [Per J. Mendoza, En Banc], citing Angara v.
Electoral Commission, supra note 83 at p. 158; and Guingona, Jr. v. Court of
Appeals, 354 Phil. 415, 429; 292 SCRA 402, 413-414 (1998) [Per J. Panganiban,
First Division].
92 Id.
700
700 SUPREME COURT REPORTS ANNOTATED
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tion,93 as “[r]igor in determining whether controversies brought before us are
justiciable avoids the counter majoritarian difficulties attributed to the
judiciary.”94
Abstract cases include those where another political department has yet to act.
In other words, a case not ripe for adjudication is not yet a concrete case.
Republic of the Philippines v. Roque95 clarified the concept of having an actual
case or controversy and the aspect of ripeness:
Pertinently, a justiciable controversy refers to an existing case or
controversy that is appropriate or ripe for judicial determination, not one
that is conjectural or merely anticipatory. Corollary thereto, by “ripening
seeds” it is meant, not that sufficient accrued facts may be dispensed with,
but that a dispute may be tried at its inception before it has accumulated
the asperity, distemper, animosity, passion, and violence of a full blown
battle that looms ahead. The concept describes a state of facts indicating
imminent and inevitable litigation provided that the issue is not settled and
stabilized by tranquilizing declaration.
A perusal of private respondents’ petition for declaratory relief would
show that they have failed to demonstrate how they are left to sustain or
are in immediate danger to sustain some direct injury as a result of the
enforcement of the assailed provisions of RA 9372. Not far removed from
the factual milieu in the Southern Hemisphere cases, private respondents
only assert general interests as citizens, and taxpayers and infractions
which the government could prospectively commit if the enforcement of the
said law would remain untrammelled. As their petition would disclose,
private respondents’ fear of prosecution was solely based on remarks of
certain
_______________
93 Id.
94 Id., at p. 721.
95 G.R. No. 204603, September 24, 2013, 706 SCRA 273 [Per J. Perlas-
Bernabe, En Banc].

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government officials which were addressed to the general public. They,
however failed to show how these remarks tended towards any
prosecutorial or governmental action geared towards the implementation
of RA 9372 against them. In other words, there was no particular, real or
imminent threat to any of them. As held in Southern Hemisphere:
Without any justiciable controversy, the petitions have become
pleas for declaratory relief, over which the Court has no original
jurisdiction. Then again, declaratory actions characterized by
“double contingency” where both the activity the petitioners intend
to undertake and the anticipated reaction to it of a public official are
merely theorized, lie beyond judicial review for lack of ripeness.
The possibility of abuse in the implementation of RA 9372 does
not avail to take the present petitions out of the realm of the surreal
and merely imagined. Such possibility is not peculiar to RA 93 72
since the exercise of any power granted by law may be abused.
Allegations of abuse must be anchored on real events before courts
may step in to settle actual controversies involving rights which are
legally demandable and enforceable.96 (Emphasis supplied,
citations omitted)
Our courts generally treat the issue of ripeness for adjudication in terms of
actual injury to the plaintiff.97 The question is whether “the act being challenged
has had a direct adverse
_______________
96 Id., at pp. 284-285. See also J. Leonen, Dissenting and Concurring Opinion
in Disini, Jr. v. Secretary of Justice, supra note 86 at pp. 536-537.
97 Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and
Management, 686 Phil. 357; 670 SCRA 373 (2012) [Per J. Mendoza, En Banc].
702
702 SUPREME COURT REPORTS ANNOTATED
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effect on the individual challenging it.”98 The Petitions are premature. Since
the Senate has yet to act and the President has yet to transmit to the Senate, there
is no right that has been violated as yet.
XIV
There is still a political act that must happen before the agreement can become
valid and binding. The Senate can still address the constitutional challenges with
respect to the contents of the EDCA. Thus, the challenges to the substantive
content of the EDCA are, at present, in the nature of political questions.
However, the nature of the EDCA, whether it is a treaty or merely an executive
agreement, is ripe for adjudication.
In 1957, Tañada v. Cuenca99 explained the concept of political questions as
referring to issues that depend not on the legality of a measure but on the wisdom
behind it:
As already adverted to, the objection to our jurisdiction hinges on the
question whether the issue before us is political or not. In this connection,
Willoughby lucidly states:
“Elsewhere in this treatise the well-known and well-established
principle is considered that it is not within the province of the courts
to pass judgment upon the policy of legislative or executive action.
Where, therefore, discretionary powers are granted by the
Constitution or by statute, the manner in which those powers are
exercised is not subject to judicial review. The courts, therefore,
_______________
98 Id., at p. 369; p. 383, citing Lozano v. Nograles, supra note 86, in turn
citing Guingona, Jr. v. Court of Appeals, supra note 91 at pp. 427-428; pp. 414-415.
99 103 Phil. 1051 (1957) [Per J. Concepcion, En Banc].
703
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concern themselves only with the question as to the existence
and extent of these discretionary powers.
As distinguished from the judicial, the legislative and executive
departments are spoken of as the political departments of
government because in very many cases their action is necessarily
dictated by considerations of public or political policy. These
considerations of public or political policy of course will not
permit the legislature to violate constitutional provisions, or
the executive to exercise authority not granted him by the
Constitution or by statute, but, within these limits, they do
permit the departments, separately or together, to recognize that a
certain set of facts exists or that a given status exists, and these
determinations, together with the consequences that flow
therefrom, may not be traversed in the courts.”
To the same effect is the language used in Corpus Juris Secundum,
from which we quote:
“It is well-settled doctrine that political questions are not within
the province of the judiciary, except to the extent that power to deal
 with such questions has been conferred upon the courts by express
constitutional or statutory provisions.
It is not easy, however, to define the phrase ‘political question,’
nor to determine what matters fall within its scope. It is frequently
used to designate all questions that the outside the scope of the
judicial questions, which under the constitution, are to be decided
by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative
or executive branch of the government.”
704
704 SUPREME COURT REPORTS ANNOTATED
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Thus, it has been repeatedly held that the question whether certain
amendments to the Constitution are invalid for noncompliance with
the procedure therein prescribed, is not a political one and may be settled
by the Courts.
In the case of In re McConaughy, the nature of political question was
considered carefully. The Court said:
“At the threshold of the case we are met with the assertion that
the questions involved are political, and not judicial. If this is
correct, the court has no jurisdiction as the certificate of the state
canvassing board would then be final, regardless of the actual vote
upon the amendment. The question thus raised is a fundamental
one; but it has been so often decided contrary to the view contended
for by the Attorney General that it would seem, to be finally settled.
....
. . . What is generally meant, when it is said that a question is
political, and not judicial, is that it is a matter which is to be
exercised by the people in their primary political capacity, or
that it has been specifically delegated to some other
department or particular officer of the government, with
discretionary power to act. Thus the Legislature may in its
discretion determine whether it will pass a law or submit a proposed
constitutional amendment to the people. The courts have no judicial
control over such matters, not merely because they involve political
question, but because they are matters which the people have by the
Constitution delegated to the Legislature. The Governor may
exercise the powers delegated-to him, free from judicial control, so
long as he observes the laws and acts within the limits of the power
conferred. His discre-
705
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Saguisag vs. Ochoa, Jr.
tionary acts cannot be controllable, not primarily because they
are of a political nature, but because the Constitution and laws have
placed the particular matter under his control. But every officer
under a constitutional government must act according to law and
subject him to the restraining and controlling power of the people,
acting through the courts, as well as through the executive or the
Legislature. One department is just as representative as the other,
and the judiciary is the department which is charged with the special
duty of determining the limitations which the law places upon all
official action. The recognition of this principle, unknown except in
Great Britain and America, is necessary, to ‘the end that the
government may be one of laws and not men’ — words which
Webster said were the greatest contained in any written
constitutional document.”
In short, the term “political question” connotes, in legal parlance, what
it means in ordinary parlance, namely, a question of policy. In other words,
in the language of Corpus Juris Secundum (supra), it refers to “those
questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive branch of the
Government.” It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.100 (Emphasis supplied, citations omitted)
Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc.101 involved the second impeachment Complaint filed
against former Chief Justice Hilario Davide before the House of Representatives
and raised
_______________
100 Id., at pp. 1065-1067.
101 Supra note 85.
706
706 SUPREME COURT REPORTS ANNOTATED
Saguisag vs. Ochoa, Jr.
the issue of whether this raised a political question. It traced the evolution of
jurisprudence on the political question doctrine and the effect of this court’s
expanded power of judicial review under the present Constitution on this doctrine:
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
College of Law, this Court has in fact in a number of cases taken jurisdiction
over questions which are not truly political following the effectivity of the
present Constitution.
In Marcos v. Manglapus, this Court, speaking through Madame Justice
Irene Cortes, held:
 The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to
the political departments to decide. . . .
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro
Padilla, this Court declared:
The “allocation of constitutional boundaries” is a task that this
Court must perform under the Constitution. Moreover, as held in a
recent case, (t)he political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to
this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with
the applicability of the principle in appropriate cases.
And in Daza v. Singson, speaking through Justice Isagani Cruz, this
Court ruled:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
707
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Saguisag vs. Ochoa, Jr.
were to assume that the issue presented before us was political
in nature, we would still not be precluded from resolving it under
the expanded jurisdiction conferred upon us that now covers, in
proper cases, even the political question. . . .
....
In our jurisdiction, the determination of a truly political question from
a nonjusticiable political question lies in the answer to the question
of whether there are constitutionally imposed limits on powers or
functions conferred upon political bodies. If there are, then our
courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such
limits[.]102 (Emphasis supplied)
In Diocese of Bacolod v. COMELEC,103 this court held that the political
question doctrine never precludes this court’s exercise of its power of judicial
review when the act of a constitutional body infringes upon a fundamental
individual or collective right.104However, this will only be true if there is no other
constitutional body to whom the discretion to make inquiry is preliminarily
granted by the sovereign.
Ruling on the challenge to the content of the EDCA will preclude and interfere
with any future action on the part of the Senate as it inquires into and deliberates
as to whether it should give its concurrence to the agreement or whether it should
advise the President to reopen negotiations to amend some of its provisions. It is
the Senate, through Article VII, Section 21 in relation to Article XVIII, Section 25,
that was given the discretion to make this initial inquiry exclusive of all other
constitutional bodies, including this court. A policy of deference and respect for the
allocation of such power by the sovereign to a legislative chamber requires that we
refrain from making clear and categorical rulings on the constitutional challenges
to the content of the EDCA.
XV
It is true that we have, on certain occasions, substantially overridden the
requirements of justiciability when there is an imminent threat to the violation of
constitutional rights. In Garcia v. Drilon,105 I stated that:
I am aware of our precedents where this Court has waived questions
relating to the justiciability of the constitutional issues raised when they
have “transcendental importance” to the public. In my view, this
accommodates our power to promulgate guidance “concerning the
protection and enforcement of constitutional rights.” We choose to rule
squarely on the constitutional issues in a petition wanting all or some of
the technical requisites to meet out general doctrines on justiciability but
raising clear conditions showing imminent threat to fundamental
rights. The imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence. In a sense,
our exceptional doctrine relating to constitutional issues of “transcendental
importance” prevents courts from the paralysis of procedural niceties when
clearly faced with the need for substantial protection. 106 (Emphasis
supplied, citations omitted)
There is, however, no need to invoke these exceptions. The imminence of the
implementation of the EDCA and, therefore,
the clarity of the impending threat to constitutional rights do not appear cogent if
we declare that the EDCA, without Senate concurrence, is not yet valid and
binding as a treaty or fully complying with the requirements of Article XVIII,
Section 25.
XVI
The proposed disposition of this case does not in any way discount the
deployment of the expertise of the Executive as it conducts foreign policy. Nor
should we arrogate executive discretion by compelling the President to transmit
the agreement to the Senate for concurrence.107
Nevertheless, the judiciary has the duty to ensure that the acts of all branches
of government comply with the fundamental nature of the Constitution. 108 While
the EDCA is a formal and official memorial of the results of negotiations between
the Philippines and the United States, it is not yet effective until the Senate
concurs or there is compliance with Congressional action to submit the agreement
to a national referendum in accordance with Article XVIII, Section 25 of the
Constitution.
It is, thus, now up to the President. Should he desire to continue the policy
embedded in the EDCA, with deliberate dispatch he can certainly transmit the
agreement to the Senate for the latter to initiate the process to concur with the
agreement. After all, on these matters, the sovereign, speaking through the
Constitution, has assumed that the exercise of wisdom is not within the sole
domain of the President. Wisdom, in allowing foreign military bases, troops, or
facilities, is likewise within the province of nationally elected Senators of the
Republic.
On these matters, the Constitution rightly assumes that no one person —
because of the exigencies and their consequences — has a monopoly of wisdom.
In my view, the same security concerns that moved the President with haste to
ratify the EDCA signed by his Secretary of Defense will be the same security
concerns — and more — that will move the Senate to consider the agreement with
dispatch. There are matters of national consequence where the views of an elected
President can be enriched by the views of an elected Senate. Certainly, the
participation of the public through these mechanisms is as critical as the foreign
policy directions that the EDCA frames.
By abbreviating the constitutional process, this court makes itself vulnerable
to a reasonable impression that we do not have the courage to enforce every word,
phrase, and punctuation in the Constitution promulgated by our People. We will
stand weak, as an institution and by implication as a state, in the community of
nations. In clear unequivocal words, the basic instrument through which we exist
requires that we interpret its words to make real an independent foreign policy. It
requires measures be fully publicly discussed before any foreign resource capable
of making war with our neighbors and at the command of a foreign sovereign —
foreign military bases, troops and facilities — becomes effective.
Instead, the majority succumbed to a narrative of dependence to a superpower.
Our collective memories are perilously short. Our sense of history is wanting.
The Americans did not recognize the Declaration of Independence of 1898,
which was made possible by the blood of our ancestors. They ignored their
agreements with the Filipino revolutionaries when they entered Intramuros and
staged the surrender of the Spanish colonizers to them. They ignored our
politicians when they negotiated the Treaty of Paris. Not a single Filipino was
there — not even as an observer. They triggered armed conflict with the Filipino
revolutionaries. The schools they put up attempted to block out the inhumanity
and barbarism in the conflict that followed. Only a few remember the massacres
of Samar, of Bud Dajo, and of other places in our country. In the memory of many
Filipinos today, these brutalities have been practically erased.
Filipino veterans of World War II who fought gallantly with the Americans,
now gray and ailing, still await equal treatment with United States war veterans.
Filipina comfort women of that war still seek just treatment and receive no succor
from the ally with and for whom they bled and suffered.
The 1951 Mutual Defense Treaty and the Visiting Forces Agreement was in
effect when the Chinese invaded certain features within our Exclusive Economic
Zone in the West Philippine Sea. The Americans did not come to our aid. The
President of the United States visited and, on the occasion of that visit, our own
President announced the completion of the EDCA. No clear, unequivocal, and
binding commitment was given with respect to the applicability of the Mutual
Defense Treaty to the entirety of our valid legal claims in the West Philippine Sea.
The commitment of the United States remains ambiguous. The United States’
statement is that it will not interfere in those types of differences we have with
China, among others.
The inequality of the Mutual Defense Treaty is best presented by the image of
a commissioned but rusting and dilapidated warship beached in a shoal in the
West Philippine Sea. This ship is manned by a handful of gallant heroic marines,
and by the provisions of the Mutual Defense Treaty, an attack on this ship — as a
public vessel — is what we are relying upon to trigger mutual defense with the
United States.
We remain a permanent ally of the United States. For decades, we relied on
them for the training of our troops and the provision of military materiel. For
decades, we hosted their bases. Yet, our armed forces remain woefully equipped.
Unlike in many of their other allies, no modern US-made fighter jet exists in our
Air Force. We have no credible missile defense. Our Navy’s most powerful assets
now include a destroyer that was decommissioned by the United States Coast
Guard.
It is now suggested that these will change with the EDCA. It is now suggested
that this court should act to make that change possible. Impliedly, it is thus also
suggested that the Senate, or Congress, or the People in a referendum as provided
in our Constitution, will be less patriotic than this court or the President.
There has never been a time in our history — and will never be a time in the
future — when the national interest of the United States was subservient to ours.
We cannot stake our future on how we imagine the United States will behave in
the future. We should learn from our history. If we wish the United States to
behave in a way that we expect, then our government should demand clear
commitments for assistance to our primary interests. The likelihood that this will
happen increases when agreements with them run through the gauntlet of public
opinion before they become effective.
Certainly, this is what the Constitution provides. Certainly, this is the least
that we should guarantee as a court of law.
Final Note
In 1991, there was the “Senate that Said No” to the extension of the stay of
military bases of the United States within Philippine territory. That historical
decision defined the patriotism implicit in our sovereignty. That single collective
act of courage was supposed to usher opportunities to achieve the vision of our
Constitution for a more meaningful but equal relationship with the American
empire. That act was the pinnacle of decades of people’s struggles.
History will now record that in 2016, it is this Supreme Court that said yes to
the EDCA. This decision now darkens the colors of what is left of our sovereignty
as defined in our Constitution. The majority’s take is the aftermath of squandered
opportunity. We surrender to the dual narrative of expediency and a hegemonic
view of the world from the eyes of a single superpower. The opinion of the majority
of this Supreme Court affirms executive privileges and definitively precludes
Senate and/or Congressional oversight in the crafting of the most important
policies in our relations with the United States and, implicitly, its enemies and its
allies. In its hurry to abbreviate the constitutional process, the majority also
excludes the possibility that our people directly participate in a referendum called
to affirm the EDCA.
Article XVIII, Section 25 does not sanction the surreptitious executive approval
of the entry of United States military bases or any of its euphemisms (i.e., “Agreed
Locations”) through strained and acrobatic implication from an ambiguous and
completely different treaty provision.
The majority succeeds in emasculating our Constitution. Effectively, this court
erases the blood, sweat, and tears shed by our martyrs.
I register more than my disagreement. I mourn that this court has allowed this
government to acquiesce into collective subservience to the Executive power
contrary to the spirit of our basic law.
I dissent.
ACCORDINGLY, I vote to PARTIALLY GRANT the Petitions and
to DECLARE the Enhanced Defense Cooperation Agreement (EDCA) between
the Republic of the Philippines and the United States of America as a formal and
official memorial of the results of the negotiations concerning the allowance
of United States military bases, troops, or facilities in the Philippines, which
is NOT EFFECTIVE until it complies with the requisites of Article XVIII, Section
25 of the 1987 Philippine Constitution, namely: (1) that the agreement must be
in the form of a treaty; (2) that the treaty must be duly concurred in by the
Philippine Senate and, when so required by Congress, ratified by a majority of
votes cast by the people in a national referendum; and (3) that the agreement is
either (a) recognized as a treaty or (b) accepted or acknowledged as a treaty by the
United States before it becomes valid, binding, and effective.
Petitions dismissed.
Notes.—Article XVIII, Sec. 25 of the Constitution is designed to ensure that
any agreement allowing the presence of foreign military bases, troops or facilities
in Philippine territory shall be equally binding on the Philippines and the foreign
sovereign State involved, the idea being to prevent a recurrence of what happened
in the past. (Nicolas vs. Romulo, 578 SCRA 438 [2009])
It is settled that “the 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.” (Arigo
vs. Swift,735 SCRA 102 [2014])

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