G.R. No.

78059 August 31, 1987

DE LEON VS ESGUERRA
MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their
respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of
Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents'
Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other
petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay
Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election
Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by
respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay
Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of
Local Government."
Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating
respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members
of the Barangay Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of
which read:
xxx xxx xxx
That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among
others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the
barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me personally on February
8,1987;
That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.
Pasig, Metro Manila, March 23, 1987.
Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that
respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively.
Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall
be six (6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall
have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent
OIC Governor no longer has the authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986,
which provided:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue
in office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such appointment is made within a period of one year
from February 25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were
abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six
years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials
to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provision of the
Provisional Constitution.
Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution,
may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the
term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace
petitioners was validly made during the one-year period which ended on February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the
effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice.
But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional
Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading.
SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes
cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

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The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution
must be deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on
Section 2, Article III, thereof to designate respondents to the elective positions occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of
1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest
development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and
of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervision" over
local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by
law, shall be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years
provided for in the Barangay Election Act of 1982 5 should still govern.
Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay
officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3,
Article XVIII of the 1987 Constitution, reading:
Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other
executive issuances not inconsistent, with this Constitution shall remain operative until amended, repealed
or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the
Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no
legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the
ouster/take-over of petitioners' positions subject of this Petition. Without costs.
SO ORDERED.

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G.R. No. 92299

April 19, 1991
SAN JUAN VS CIVIL SERVICE COMMISSION
GUTIERREZ, JR., J.:
In this petition for certiorari pursuant to Section 7, Article IX (A) of the present Constitution, the petitioner Governor of the
Province of Rizal, prays for the nullification of Resolution No. 89-868 of the Civil Service Commission (CSC) dated November
21, 1989 and its Resolution No. 90-150 dated February 9, 1990.
The dispositive portion of the questioned Resolution reads:
WHEREFORE, foregoing premises considered, the Commission resolved to dismiss, as it hereby dismisses the appeal
of Governor Reynaldo San Juan of Rizal. Accordingly, the approved appointment of Ms. Cecilia Almajose as Provincial
Budget Officer of Rizal, is upheld. (Rollo, p. 32)
The subsequent Resolution No. 90-150 reiterates CSC's position upholding the private respondent's appointment by denying
the petitioner's motion for reconsideration for lack of merit.
The antecedent facts of the case are as follows:
On March 22, 1988, the position of Provincial Budget Officer (PBO) for the province of Rizal was left vacant by its former
holder, a certain Henedima del Rosario.
In a letter dated April 18, 1988, the petitioner informed Director Reynaldo Abella of the Department of Budget and
Management (DBM) Region IV that Ms. Dalisay Santos assumed office as Acting PBO since March 22, 1988 pursuant to a
Memorandum issued by the petitioner who further requested Director Abella to endorse the appointment of the said Ms.
Dalisay Santos to the contested position of PBO of Rizal. Ms. Dalisay Santos was then Municipal Budget Officer of Taytay,
Rizal before she discharged the functions of acting PBO.
In a Memorandum dated July 26, 1988 addressed to the DBM Secretary, then Director Abella of Region IV recommended the
appointment of the private respondent as PBO of Rizal on the basis of a comparative study of all Municipal Budget Officers of
the said province which included three nominees of the petitioner. According to Abella, the private respondent was the most
qualified since she was the only Certified Public Accountant among the contenders.
On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr. signed the appointment papers of the private respondent as
PBO of Rizal upon the aforestated recommendation of Abella.
In a letter dated August 3, 1988 addressed to Secretary Carague, the petitioner reiterated his request for the appointment of
Dalisay Santos to the contested position unaware of the earlier appointment made by Undersecretary Cabuquit.
On August 31, 1988, DBM Regional Director Agripino G. Galvez wrote the petitioner that Dalisay Santos and his other
recommendees did not meet the minimum requirements under Local Budget Circular No. 31 for the position of a local budget
officer. Director Galvez whether or not through oversight further required the petitioner to submit at least three other
qualified nominees who are qualified for the position of PBO of Rizal for evaluation and processing.
On November 2, 1988, the petitioner after having been informed of the private respondent's appointment wrote Secretary
Carague protesting against the said appointment on the grounds that Cabuquit as DBM Undersecretary is not legally
authorized to appoint the PBO; that the private respondent lacks the required three years work experience as provided in
Local Budget Circular No. 31; and that under Executive Order No. 112, it is the Provincial Governor, not the Regional Director
or a Congressman, who has the power to recommend nominees for the position of PBO.
On January 9, 1989 respondent DBM, through its Director of the Bureau of Legal & Legislative Affairs (BLLA) Virgilio A.
Afurung, issued a Memorandum ruling that the petitioner's letter-protest is not meritorious considering that public
respondent DBM validly exercised its prerogative in filling-up the contested position since none of the petitioner's nominees
met the prescribed requirements.
On January 27, 1989, the petitioner moved for a reconsideration of the BLLA ruling.
On February 28, 1989, the DBM Secretary denied the petitioner's motion for reconsideration.
On March 27, 1989, the petitioner wrote public respondent CSC protesting against the appointment of the private
respondent and reiterating his position regarding the matter.
Subsequently, public respondent CSC issued the questioned resolutions which prompted the petitioner to submit before us
the following assignment of errors:
A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY DBM ASSISTANT SECRETARY CABUQUIT OF CECILIA
ALMAJOSE AS PBO OF RIZAL.
B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE POSSESSES ALL THE REQUIRED QUALIFICATIONS.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S NOMINEES ARE NOT QUALIFIED TO THE SUBJECT POSITION.
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR DISCRETION IN NOT ALLOWING PETITIONER TO SUBMIT NEW
NOMINEES WHO COULD MEET THE REQUIRED QUALIFICATION (Petition, pp. 7-8, Rollo, pp. 15-16)
All the assigned errors relate to the issue of whether or not the private respondent is lawfully entitled to discharge the
functions of PBO of Rizal pursuant to the appointment made by public respondent DBM's Undersecretary upon the
recommendation of then Director Abella of DBM Region IV.
The petitioner's arguments rest on his contention that he has the sole right and privilege to recommend the nominees to the
position of PBO and that the appointee should come only from his nominees. In support thereof, he invokes Section 1 of
Executive Order No. 112 which provides that:

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Sec. 1. All budget officers of provinces, cities and municipalities shall be appointed henceforth by the Minister of
Budget and Management upon recommendation of the local chief executive concerned, subject to civil service law,
rules and regulations, and they shall be placed under the administrative control and technical supervision of the
Ministry of Budget and Management.
The petitioner maintains that the appointment of the private respondent to the contested position was made in derogation of
the provision so that both the public respondents committed grave abuse of discretion in upholding Almajose's appointment.
There is no question that under Section 1 of Executive Order No. 112 the petitioner's power to recommend is subject to the
qualifications prescribed by existing laws for the position of PBO. Consequently, in the event that the recommendations
made by the petitioner fall short of the required standards, the appointing authority, the Minister (now Secretary) of public
respondent DBM is expected to reject the same.
In the event that the Governor recommends an unqualified person, is the Department Head free to appoint anyone he
fancies ? This is the issue before us.
Before the promulgation of Executive Order No. 112 on December 24, 1986, Batas Pambansa Blg. 337, otherwise known as
the Local Government Code vested upon the Governor, subject to civil service rules and regulations, the power to appoint
the PBO (Sec. 216, subparagraph (1), BP 337). The Code further enumerated the qualifications for the position of PBO. Thus,
Section 216, subparagraph (2) of the same code states that:
(2) No person shall be appointed provincial budget officer unless he is a citizen of the Philippines, of good moral
character, a holder of a degree preferably in law, commerce, public administration or any related course from a
recognized college or university, a first grade civil service eligibility or its equivalent, and has acquired at least five
years experience in budgeting or in any related field.
The petitioner contends that since the appointing authority with respect to the Provincial Budget Officer of Rizal was vested
in him before, then, the real intent behind Executive Order No. 112 in empowering him to recommend nominees to the
position of Provincial Budget Officer is to make his recommendation part and parcel of the appointment process. He states
that the phrase "upon recommendation of the local chief executive concerned" must be given mandatory application in
consonance with the state policy of local autonomy as guaranteed by the 1987 Constitution under Art. II, Sec. 25 and Art. X,
Sec. 2 thereof. He further argues that his power to recommend cannot validly be defeated by a mere administrative issuance
of public respondent DBM reserving to itself the right to fill-up any existing vacancy in case the petitioner's nominees do not
meet the qualification requirements as embodied in public respondent DBM's Local Budget Circular No. 31 dated February 9,
1988.
The questioned ruling is justified by the public respondent CSC as follows:
As required by said E.O. No. 112, the DBM Secretary may choose from among the recommendees of the Provincial
Governor who are thus qualified and eligible for appointment to the position of the PBO of Rizal. Notwithstanding,
the recommendation of the local chief executive is merely directory and not a condition sine qua non to the exercise
by the Secretary of DBM of his appointing prerogative. To rule otherwise would in effect give the law or E.O. No. 112
a different interpretation or construction not intended therein, taking into consideration that said officer has been
nationalized and is directly under the control and supervision of the DBM Secretary or through his duly authorized
representative. It cannot be gainsaid that said national officer has a similar role in the local government unit, only
on another area or concern, to that of a Commission on Audit resident auditor. Hence, to preserve and maintain the
independence of said officer from the local government unit, he must be primarily the choice of the national
appointing official, and the exercise thereof must not be unduly hampered or interfered with, provided the
appointee finally selected meets the requirements for the position in accordance with prescribed Civil Service Law,
Rules and Regulations. In other words, the appointing official is not restricted or circumscribed to the list submitted
or recommended by the local chief executive in the final selection of an appointee for the position. He may consider
other nominees for the position vis a vis the nominees of the local chief executive. (CSC Resolution No. 89-868, p. 2;
Rollo, p. 31)
The issue before the Court is not limited to the validity of the appointment of one Provincial Budget Officer. The tug of war
between the Secretary of Budget and Management and the Governor of the premier province of Rizal over a seemingly
innocuous position involves the application of a most important constitutional policy and principle, that of local autonomy.
We have to obey the clear mandate on local autonomy. Where a law is capable of two interpretations, one in favor of
centralized power in Malacaang and the other beneficial to local autonomy, the scales must be weighed in favor of
autonomy.
The exercise by local governments of meaningful power has been a national goal since the turn of the century. And yet,
inspite of constitutional provisions and, as in this case, legislation mandating greater autonomy for local officials, national
officers cannot seem to let go of centralized powers. They deny or water down what little grants of autonomy have so far
been given to municipal corporations.
President McKinley's Instructions dated April 7, 1900 to the Second Philippine Commission ordered the new Government "to
devote their attention in the first instance to the establishment of municipal governments in which natives of the Islands,
both in the cities and rural communities, shall be afforded the opportunity to manage their own local officers to the fullest
extent of which they are capable and subject to the least degree of supervision and control which a careful study of their
capacities and observation of the workings of native control show to be consistent with the maintenance of law, order and
loyalty.
In this initial organic act for the Philippines, the Commission which combined both executive and legislative powers was
directed to give top priority to making local autonomy effective.
The 1935 Constitution had no specific article on local autonomy. However, in distinguishing between presidential control and
supervision as follows:
The President shall have control of all the 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. (Sec. 11,
Article VII, 1935 Constitution)
the Constitution clearly limited the executive power over local governments to "general supervision . . . as may be provided
by law." The President controls the executive departments. He has no such power over local governments. He has only
supervision and that supervision is both general and circumscribed by statute.

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In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:

. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then Justice, now Chief Justice, Concepcion as the ponente,
clarified matters. As was pointed out, the presidential competence is not even supervision in general, but general
supervision as may be provided by law. He could not thus go beyond the applicable statutory provisions, which bind
and fetter his discretion on the matter. Moreover, as had been earlier ruled in an opinion penned by Justice Padilla in
Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to by the present Chief Justice in his opinion in the Hebron case,
supervision goes no further than "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." (Ibid, pp. 147-148) Control, on the other hand, "means the power of an
officer to alter or modify or nullify or set aside what a subordinate had done in the performance of their duties and
to substitute the judgment of the former for that of the latter." It would follow then, according to the present Chief
Justice, to go back to the Hebron opinion, that the President had to abide by the then provisions of the Revised
Administrative Code on suspension and removal of municipal officials, there being no power of control that he could
rightfully exercise, the law clearly specifying the procedure by which such disciplinary action would be taken.
Pursuant to this principle under the 1935 Constitution, legislation implementing local autonomy was enacted. In 1959,
Republic Act No. 2264, "An Act Amending the Law Governing Local Governments by Increasing Their Autonomy and
Reorganizing Local Governments" was passed. It was followed in 1967 when Republic Act No. 5185, the Decentralization Law
was enacted, giving "further autonomous powers to local governments governments."
The provisions of the 1973 Constitution moved the country further, at least insofar as legal provisions are concerned,
towards greater autonomy. It provided under Article II as a basic principle of government:
Sec. 10. The State shall guarantee and promote the autonomy of local government units, especially the barangay to
ensure their fullest development as self-reliant communities.
An entire article on Local Government was incorporated into the Constitution. It called for a local government code defining
more responsive and accountable local government structures. Any creation, merger, abolition, or substantial boundary
alteration cannot be done except in accordance with the local government code and upon approval by a plebiscite. The
power to create sources of revenue and to levy taxes was specifically settled upon local governments.
The exercise of greater local autonomy is even more marked in the present Constitution.
Article II, Section 25 on State Policies provides: Sec. 25. The State shall ensure the autonomy of local governments
The 14 sections in Article X on Local Government not only reiterate earlier doctrines but give in greater detail the provisions
making local autonomy more meaningful. Thus, Sections 2 and 3 of Article X provide:
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective mechanisms
of recall, initiative, and referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries,
powers and functions and duties of local officials, and all other matters relating to the organization and operation of
the local units.
When the Civil Service Commission interpreted the recommending power of the Provincial Governor as purely directory, it
went against the letter and spirit of the constitutional provisions on local autonomy. If the DBM Secretary jealously hoards
the entirety of budgetary powers and ignores the right of local governments to develop self-reliance and resoluteness in the
handling of their own funds, the goal of meaningful local autonomy is frustrated and set back.
The right given by Local Budget Circular No. 31 which states:
Sec. 6.0 The DBM reserves the right to fill up any existing vacancy where none of the nominees of the local chief
executive meet the prescribed requirements.
is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified recommendees nominated by
the Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal
requirements and ask for new recommendees who have the necessary eligibilities and qualifications.
The PBO is expected to synchronize his work with DBM. More important, however, is the proper administration of fiscal
affairs at the local level. Provincial and municipal budgets are prepared at the local level and after completion are forwarded
to the national officials for review. They are prepared by the local officials who must work within the constraints of those
budgets. They are not formulated in the inner sanctums of an all-knowing DBM and unilaterally imposed on local
governments whether or not they are relevant to local needs and resources. It is for this reason that there should be a
genuine interplay, a balancing of viewpoints, and a harmonization of proposals from both the local and national officials. It is
for this reason that the nomination and appointment process involves a sharing of power between the two levels of
government.
It may not be amiss to give by way of analogy the procedure followed in the appointments of Justices and Judges. 1wphi1
Under Article VIII of the Constitution, nominations for judicial positions are made by the Judicial and Bar Council. The
President makes the appointments from the list of nominees submitted to her by the Council. She cannot apply the DBM
procedure, reject all the Council nominees, and appoint another person whom she feels is better qualified. There can be no
reservation of the right to fill up a position with a person of the appointing power's personal choice.
The public respondent's grave abuse of discretion is aggravated by the fact that Director Galvez required the Provincial
Governor to submit at least three other names of nominees better qualified than his earlier recommendation. It was a
meaningless exercise. The appointment of the private respondent was formalized before the Governor was extended the
courtesy of being informed that his nominee had been rejected. The complete disregard of the local government's
prerogative and the smug belief that the DBM has absolute wisdom, authority, and discretion are manifest.
In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local governments as institutions
of democracy is measured by the degree of autonomy that they enjoy. Citing Tocqueville, he stated that "local assemblies of
citizens constitute the strength of free nations. . . . A people may establish a system of free government but without the

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spirit of municipal institutions, it cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705706).
Our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate
the spirit of liberty upon which these provisions are based.
WHEREFORE, the petition is hereby GRANTED. The questioned resolutions of the Civil Service Commission are SET ASIDE.
The appointment of respondent Cecilia Almajose is nullified. The Department of Budget and Management is ordered to
appoint the Provincial Budget Officer of Rizal from among qualified nominees submitted by the Provincial Governor. SO
ORDERED.

G.R. No. 93252 August 5, 1991

GANZON VS CA
SARMIENTO, J.:p
The petitioners take common issue on the power of the President (acting through the Secretary of Local Government), to
suspend and/or remove local officials.
The petitioners are the Mayor of Iloilo City (G.R. Nos. 93252 and 95245) and a member of the Sangguniang Panglunsod
thereof (G.R. No. 93746), respectively.
The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number, filed against him by
various city officials sometime in 1988, on various charges, among them, abuse of authority, oppression, grave misconduct,
disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. 1 The
personalities involved are Joceleehn Cabaluna, a clerk at the city health office; Salvador Cabaluna, her husband; Dr. Felicidad
Ortigoza, Assistant City Health Officer; Mansueto Malabor, Vice-Mayor; Rolando Dabao, Dan Dalido, German Gonzales, Larry
Ong, and Eduardo Pefia Redondo members of the Sangguniang Panglunsod; and Pancho Erbite, a barangay tanod. The
complaints against the Mayor are set forth in the opinion of the respondent Court of Appeals. 2 We quote:
xxx xxx xxx
In her verified complaint (Annex A), Mrs. Cabaluna, a clerk assigned to the City Health, Office of Iloilo City
charged that due to political reasons, having supported the rival candidate, Mrs. Rosa 0. Caram, the
petitioner City Mayor, using as an excuse the exigency of the service and the interest of the public, pulled
her out from rightful office where her qualifications are best suited and assigned her to a work that should
be the function of a non-career service employee. To make matters worse, a utility worker in the office of
the Public Services, whose duties are alien to the complainant's duties and functions, has been detailed to
take her place. The petitioner's act are pure harassments aimed at luring her away from her permanent
position or force her to resign.
In the case of Dra. Felicidad Ortigoza, she claims that the petitioner handpicked her to perform task not
befitting her position as Assistant City Health Officer of Iloilo City; that her office was padlocked without
any explanation or justification; that her salary was withheld without cause since April 1, 1988; that when
she filed her vacation leave, she was given the run-around treatment in the approval of her leave in
connivance with Dr. Rodolfo Villegas and that she was the object of a well-engineered trumped-up charge
in an administrative complaint filed by Dr. Rodolfo Villegas (Annex B).
On the other hand, Mansuelo Malabor is the duly elected Vice-Mayor of Iloilo City and complainants
Rolando Dabao, Dan Dalido, German Gonzales, Larry Ong and Eduardo Pefia Pedondo are members of the
Sangguniang Panglunsod of the City of Iloilo. Their complaint arose out from the case where Councilor
Larry Ong, whose key to his office was unceremoniously and without previous notice, taken by petitioner.
Without an office, Councilor Ong had to hold office at Plaza Libertad, The Vice-Mayor and the other
complainants sympathized with him and decided to do the same. However, the petitioner, together with its
fully-armed security men, forcefully drove them away from Plaza Libertad. Councilor Ong denounced the
petitioner's actuations the following day in the radio station and decided to hold office at the Freedom
Grandstand at Iloilo City and there were so many people who gathered to witness the incident. However,
before the group could reach the area, the petitioner, together with his security men, led the firemen using
a firetruck in dozing water to the people and the bystanders.
Another administrative case was filed by Pancho Erbite, a barangay tanod, appointed by former mayor
Rosa O. Caram. On March 13, 1988, without the benefit of charges filed against him and no warrant of
arrest was issued, Erbite was arrested and detained at the City Jail of Iloilo City upon orders of petitioner. In
jail, he was allegedly mauled by other detainees thereby causing injuries He was released only the
following day. 3
The Mayor thereafter answered
forth the succeeding events:

and the cases were shortly set for hearing. The opinion of the Court of Appeals also set

xxx xxx xxx

The initial hearing in the Cabaluna and Ortigoza cases were set for hearing on June 20-21, 1988 at the
Regional Office of the Department of Local Government in Iloilo City. Notices, through telegrams, were sent

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to the parties (Annex L) and the parties received them, including the petitioner. The petitioner asked for a
postponement before the scheduled date of hearing and was represented by counsel, Atty. Samuel Castro.
The hearing officers, Atty. Salvador Quebral and Atty. Marino Bermudez had to come all the way from
Manila for the two-day hearings but was actually held only on June 20,1988 in view of the inability and
unpreparedness of petitioner's counsel.
The next hearings were re-set to July 25, 26, 27,1988 in the same venue-Iloilo City. Again, the petitioner
attempted to delay the proceedings and moved for a postponement under the excuse that he had just
hired his counsel. Nonetheless, the hearing officers denied the motion to postpone, in view of the fact that
the parties were notified by telegrams of the scheduled hearings (Annex M).
In the said hearings, petitioner's counsel cross-examined the complainants and their witnesses.
Finding probable grounds and reasons, the respondent issued a preventive suspension order on August 11,
1988 to last until October 11,1988 for a period of sixty (60) days.
Then the next investigation was set on September 21, 1988 and the petitioner again asked for a
postponement to September 26,1988. On September 26, 1988, the complainants and petitioner were
present, together with their respective counsel. The petitioner sought for a postponement which was
denied. In these hearings which were held in Mala the petitioner testified in Adm. Case No. C-10298 and
10299.
The investigation was continued regarding the Malabor case and the complainants testified including their
witnesses.
On October 10, 1988, petitioner's counsel, Atty. Original moved for a postponement of the October 24,
1988 hearing to November 7 to 11, 1988 which was granted. However, the motion for change of venue as
denied due to lack of funds. At the hearing on November 7, 1988, the parties and counsel were present.
Petitioner reiterated his motion to change venue and moved for postponement anew. The counsel
discussed a proposal to take the deposition of witnesses in Iloilo City so the hearing was indefinitely
postponed. However, the parties failed to come to terms and after the parties were notified of the hearing,
the investigation was set to December 13 to 15, 1988.
The petitioner sought for another postponement on the ground that his witnesses were sick or cannot
attend the investigation due to lack of transportation. The motion was denied and the petitioner was given
up to December 14, 1988 to present his evidence.
On December 14,1988, petitioner's counsel insisted on his motion for postponement and the hearing
officers gave petitioner up to December 15, 1988 to present his evidence. On December 15, 1988, the
petitioner failed to present evidence and the cases were considered submitted for resolution.
In the meantime, a prima facie evidence was found to exist in the arbitrary detention case filed by Pancho
Erbite so the respondent ordered the petitioner's second preventive suspension dated October 11, 1988 for
another sixty (60) days. The petitioner was able to obtain a restraining order and a writ of preliminary
injunction in the Regional Trial Court, Branch 33 of Iloilo City. The second preventive suspension was not
enforced. 5
Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent Secretary
of Local Government (now, Interior) in the Regional Trial Court, Iloilo City, where he succeeded in obtaining a writ of
preliminary injunction. Presently, he instituted CA-G.R. SP No. 16417, an action for prohibition, in the respondent Court of
Appeals.
Meanwhile, on May 3, 1990, the respondent Secretary issued another order, preventively suspending Mayor Ganzon for
another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as acting
mayor. Undaunted, Mayor Ganzon commenced CA-G.R. SP No. 20736 of the Court of Appeals, a petition for prohibition, 6
(Malabor it is to be noted, is one of the complainants, and hence, he is interested in seeing Mayor Ganzon ousted.)
On September 7, 1989, the Court of Appeals rendered judgment, dismissing CA-G.R. SP No. 16417. On July 5, 1990, it
likewise promulgated a decision, dismissing CA-G.R. SP No. 20736. In a Resolution dated January 24, 1990, it issued a
Resolution certifying the petition of Mary Ann Artieda, who had been similary charged by the respondent Secretary, to this
Court.
On June 26,1990, we issued a Temporary Restraining Order, barring the respondent Secretary from implementing the
suspension orders, and restraining the enforcement of the Court of Appeals' two decisions.
In our Resolution of November 29, 1990, we consolidated all three cases. In our Resolutions of January 15, 1991, we gave
due course thereto.
Mayor Ganzon claims as a preliminary (GR No. 93252), that the Department of Local Government in hearing the ten cases
against him, had denied him due process of law and that the respondent Secretary had been "biased, prejudicial and hostile"
towards him 7 arising from his (Mayor Ganzon's) alleged refusal to join the Laban ng Demokratikong Pilipino party 8 and the
running political rivalry they maintained in the last congressional and local elections; 9 and his alleged refusal to operate a
lottery in Iloilo City. 10 He also alleges that he requested the Secretary to lift his suspension since it had come ninety days
prior to an election (the barangay elections of November 14, 1988), 11 notwithstanding which, the latter proceeded with the
hearing and meted out two more suspension orders of the aforementioned cases. 12 He likewise contends that he sought to
bring the cases to Iloilo City (they were held in Manila) in order to reduce the costs of proceeding, but the Secretary rejected
his request. 13 He states that he asked for postponement on "valid and justifiable" 14 grounds, among them, that he was
suffering from a heart ailment which required confinement; that his "vital" 15 witness was also hospitalized 16 but that the
latter unduly denied his request. 17
Mayor Ganzon's primary argument (G.R. Nos. 93252 and 95245) is that the Secretary of Local Government is devoid, in any
event, of any authority to suspend and remove local officials, an argument reiterated by the petitioner Mary Ann Rivera
Artieda (G.R. No. 93746).
As to Mayor Ganzon's charges of denial of due process, the records do not show very clearly in what manner the Mayor
might have been deprived of his rights by the respondent Secretary. His claims that he and Secretary Luis-Santos were (are)
political rivals and that his "persecution" was politically motivated are pure speculation and although the latter does not

Page 7 of 69

appear to have denied these contentions (as he, Mayor Ganzon, claims), we can not take his word for it the way we would
have under less political circumstances, considering furthermore that "political feud" has often been a good excuse in
contesting complaints.
The Mayor has failed furthermore to substantiate his say-so's that Secretary Santos had attempted to seduce him to join the
administration party and to operate a lottery in Iloilo City. Again, although the Secretary failed to rebut his allegations, we
can not accept them, at face value, much more, as judicial admissions as he would have us accept them 18 for the same
reasons above-stated and furthermore, because his say so's were never corroborated by independent testimonies. As a
responsible public official, Secretary Santos, in pursuing an official function, is presumed to be performing his duties
regularly and in the absence of contrary evidence, no ill motive can be ascribed to him.
As to Mayor Ganzon's contention that he had requested the respondent Secretary to defer the hearing on account of the
ninety-day ban prescribed by Section 62 of Batas Blg. 337, the Court finds the question to be moot and academic since we
have in fact restrained the Secretary from further hearing the complaints against the petitioners. 19
As to his request, finally, for postponements, the Court is afraid that he has not given any compelling reason why we should
overturn the Court of Appeals, which found no convincing reason to overrule Secretary Santos in denying his requests.
Besides, postponements are a matter of discretion on the part of the hearing officer, and based on Mayor Ganzon's above
story, we are not convinced that the Secretary has been guilty of a grave abuse of discretion.
The Court can not say, under these circumstances, that Secretary Santos' actuations deprived Mayor Ganzon of due process
of law.
We come to the core question: Whether or not the Secretary of Local Government, as the President's alter ego, can suspend
and/or remove local officials.
It is the petitioners' argument that the 1987 Constitution 20 no longer allows the President, as the 1935 and 1973
Constitutions did, to exercise the power of suspension and/or removal over local officials. According to both petitioners, the
Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting the phrase 21 as may
be provided by law to strip the President of the power of control over local governments. It is a view, so they contend, that
finds support in the debates of the Constitutional Commission. The provision in question reads as follows:
Sec. 4. The President of the Philippines shall exercise general supervision over local governments.
Provinces with respect to component cities and municipalities, and cities and municipalities with respect to
component barangays shall ensure that the acts of their component units are within the scope of their
prescribed powers and functions. 22
It modifies a counterpart provision appearing in the 1935 Constitution, which we quote:
Sec. 10. The President shall have control of all the 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. 23
The petitioners submit that the deletion (of "as may be provided by law") is significant, as their argument goes, since: (1) the
power of the President is "provided by law" and (2) hence, no law may provide for it any longer.
It is to be noted that in meting out the suspensions under question, the Secretary of Local Government acted in consonance
with the specific legal provisions of Batas Blg. 337, the Local Government Code, we quote:
Sec. 62. Notice of Hearing. Within seven days after the complaint is filed, the Minister of local
Government, or the sanggunian concerned, as the case may be, shall require the respondent to submit his
verified answer within seven days from receipt of said complaint, and commence the hearing and
investigation of the case within ten days after receipt of such answer of the respondent. No investigation
shall be held within ninety days immediately prior to an election, and no preventive suspension shall be
imposed with the said period. If preventive suspension has been imposed prior to the aforesaid period, the
preventive suspension shall be lifted. 24
Sec. 63. Preventive Suspension. (1) Preventive suspension may be imposed by the Minister of Local
Government if the respondent is a provincial or city official, by the provincial governor if the respondent is
an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay
official.
(2) Preventive suspension may be imposed at any time after the issues are joined, when there is
reasonable ground to believe that the respondent has committed the act or acts complained of, when the
evidence of culpability is strong, when the gravity of the offense so warrants, or when the continuance in
office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the
records and other evidence. In all cases, preventive suspension shall not extend beyond sixty days after
the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without
prejudice to the continuation of the proceedings against him until its termination. However ' if the delay in
the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be
counted in computing the time of suspension. 25
The issue, as the Court understands it, consists of three questions: (1) Did the 1987 Constitution, in deleting the phrase "as
may be provided by law" intend to divest the President of the power to investigate, suspend, discipline, and/or remove local
officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the significance of
the change in the constitutional language?
It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter did not
intend to divest the legislature of its right or the President of her prerogative as conferred by existing legislation to provide
administrative sanctions against local officials. It is our opinion that the omission (of "as may be provided by law") signifies
nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local
government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all
authority over municipal corporations, in particular, concerning discipline.

Page 8 of 69

Autonomy does not, after all, contemplate making mini-states out of local government units, as in the federal governments
of the United States of America (or Brazil or Germany), although Jefferson is said to have compared municipal corporations
euphemistically to "small republics." 26 Autonomy, in the constitutional sense, is subject to the guiding star, though not
control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself
suggest-is to wean local government units from over-dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other things,
the passage of a local government code, 27 a local tax law, 28 income distribution legislation, 29 and a national representation
law, 30 and measures 31 designed to realize autonomy at the local level. It is also noteworthy that in spite of autonomy, the
Constitution places the local government under the general supervision of the Executive. It is noteworthy finally, that the
Charter allows Congress to include in the local government code provisions for removal of local officials, which suggest that
Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the
President. Thus:
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units their
powers, responsibilities and resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to
the organization and operation of the local units. 32
As hereinabove indicated, the deletion of "as may be provided by law" was meant to stress, sub silencio, the objective of the
framers to strengthen local autonomy by severing congressional control of its affairs, as observed by the Court of Appeals,
like the power of local legislation. 33 The Constitution did nothing more, however, and insofar as existing legislation
authorizes the President (through the Secretary of Local Government) to proceed against local officials administratively, the
Constitution contains no prohibition.
The petitioners are under the impression that the Constitution has left the President mere supervisory powers, which
supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. It is
a mistaken impression because legally, "supervision" is not incompatible with disciplinary authority as this Court has held, 34
thus:
xxx xxx xxx
It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had occasion to
discuss the scope and extent of the power of supervision by the President over local government officials
in contrast to the power of control given to him over executive officials of our government wherein it was
emphasized that the two terms, control and supervision, are two different things which differ one from the
other in meaning and extent. Thus in that case the Court has made the following digression: "In
administration law 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 of 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." But
from this pronouncement it cannot be reasonably inferred that the power of supervision of the President
over local government officials does not include the power of investigation when in his opinion the good of
the public service so requires, as postulated in Section 64(c) of the Revised Administrative Code. ... 35
xxx xxx xxx
"Control" has been defined as "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 test of the latter." 36 "Supervision" on
the other hand means "overseeing or the power or authority of an officer to see that subordinate officers perform their
duties. 37 As we held, 38 however, "investigating" is not inconsistent with "overseeing", although it is a lesser power than
"altering". The impression is apparently exacerbated by the Court's pronouncements in at least three cases, Lacson v.
Roque, 39 Hebron v. Reyes, 40 and Mondano v. Silvosa, 41 and possibly, a fourth one, Pelaez v. Auditor General. 42 In Lacson,
this Court said that the President enjoyed no control powers but only supervision "as may be provided by law," 43 a rule we
reiterated in Hebron, and Mondano. In Pelaez, we stated that the President "may not . . . suspend an elective official of a
regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding
provincial board." 44 However, neither Lacson nor Hebron nor Mondano categorically banned the Chief Executive from
exercising acts of disciplinary authority because she did not exercise control powers, but because no law allowed her to
exercise disciplinary authority. Thus, according to Lacson:
The contention that the President has inherent power to remove or suspend municipal officers is without
doubt not well taken. Removal and suspension of public officers are always controlled by the particular law
applicable and its proper construction subject to constitutional limitations. 45
In Hebron we stated:
Accordingly, when the procedure for the suspension of an officer is specified by law, the same must be
deemed mandatory and adhered to strictly, in the absence of express or clear provision to the contrarywhich does not et with respect to municipal officers ... 46
In Mondano, the Court held:
... The Congress has expressly and specifically lodged the provincial supervision over municipal officials in
the provincial governor who is authorized to "receive and investigate complaints made under oath against
municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office,
and conviction by final judgment of any crime involving moral turpitude." And if the charges are serious,
"he shall submit written charges touching the matter to the provincial board, furnishing a copy of such
charges to the accused either personally or by registered mail, and he may in such case suspend the
officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge by one
affecting the official integrity of the officer in question." Section 86 of the Revised Administration Code
adds nothing to the power of supervision to be exercised by the Department Head over the administration
of ... municipalities ... . If it be construed that it does and such additional power is the same authority as
that vested in the Department Head by section 79(c) of the Revised Administrative Code, then such
additional power must be deemed to have been abrogated by Section 110(l), Article VII of the Constitution.
47

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xxx xxx xxx

In Pelaez, we stated that the President can not impose disciplinary measures on local officials except on appeal from the
provincial board pursuant to the Administrative Code. 48
Thus, in those case that this Court denied the President the power (to suspend/remove) it was not because we did not think
that the President can not exercise it on account of his limited power, but because the law lodged the power elsewhere. But
in those cases ii which the law gave him the power, the Court, as in Ganzon v. Kayanan, found little difficulty in sustaining
him. 49
The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission to defeat
the President's powers. The Court believes that the deliberations are by themselves inconclusive, because although
Commissioner Jose Nolledo would exclude the power of removal from the President, 50 Commissioner Blas Ople would not. 51
The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas Blg.
37. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding
the stronger expression of local autonomy under the new Charter. We have indeed held that in spite of the approval of the
Charter, Batas Blg. 337 is still in force and effect. 52
As the Constitution itself declares, local autonomy means "a more responsive and accountable local government structure
instituted through a system of decentralization." 53 The Constitution as we observed, does nothing more than to break up the
monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the
local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and
inter-dependence between the central administration and local government units, or otherwise, to user in a regime of
federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to
regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self- government.
As we observed in one case,
levels. Thus:

54

decentralization means devolution of national administration but not power to the local

Now, autonomy is either decentralization of administration or decentralization of power. There is

decentralization of administration when the central government delegates administrative powers to
political subdivisions in order to broaden the base of government power and in the process to make local
governments "more responsive and accountable," and "ensure their fullest development as self-reliant
communities and make them more effective partners in the pursuit of national development and social
progress." At the same time, it relieves the central government of the burden of managing local affairs and
enables it to concentrate on national concerns. The President exercises "general supervision" over them,
but only to "ensure that local affairs are administered according to law." He has no control over their acts
in the sense that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in the favor of local
governments units declared to be autonomous, In that case, the autonomous government is free to chart
its own destiny and shape its future with minimum intervention from central authorities. According to a
constitutional author, decentralization of power amounts to "self-immolation," since in that event, the
autonomous government becomes accountable not to the central authorities but to its constituency. 55
The successive sixty-day suspensions imposed on Mayor Rodolfo Ganzon is albeit another matter. What bothers the Court,
and what indeed looms very large, is the fact that since the Mayor is facing ten administrative charges, the Mayor is in fact
facing the possibility of 600 days of suspension, in the event that all ten cases yield prima facie findings. The Court is not of
course tolerating misfeasance in public office (assuming that Mayor Ganzon is guilty of misfeasance) but it is certainly
another question to make him serve 600 days of suspension, which is effectively, to suspend him out of office. As we held: 56
2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire
until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to
the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his
functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been
unable to. it is a basic assumption of the electoral process implicit in the right of suffrage that the people
are entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of
them could, of course, be proceeded against administratively or, as in this instance, criminally. In either
case, Ms culpability must be established. Moreover, if there be a criminal action, he is entitled to the
constitutional presumption of innocence. A preventive suspension may be justified. Its continuance,
however, for an unreasonable length of time raises a due process question. For even if thereafter he were
acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a
case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the
people of Lianga They were deprived of the services of the man they had elected to serve as mayor. In that
sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had outrun
the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is
to avoid such an unconstitutional application that the order of suspension should be lifted. 57
The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, 58 and so also, because it is out
of the ordinary to have a vacancy in local government. The sole objective of a suspension, as we have held, 59 is simply "to
prevent the accused from hampering the normal cause of the investigation with his influence and authority over possible
witnesses" 60 or to keep him off "the records and other evidence. 61
It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local official. Under the Local
Government Code, it can not exceed sixty days, 62 which is to say that it need not be exactly sixty days long if a shorter
period is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved their purpose in
a shorter span.
Suspension is not a penalty and is not unlike preventive imprisonment in which the accused is held to insure his presence at
the trial. In both cases, the accused (the respondent) enjoys a presumption of innocence unless and until found guilty.
Suspension finally is temporary and as the Local Government Code provides, it may be imposed for no more than sixty days.
As we held, 63 a longer suspension is unjust and unreasonable, and we might add, nothing less than tyranny.

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As we observed earlier, imposing 600 days of suspension which is not a remote possibility Mayor Ganzon is to all intents and
purposes, to make him spend the rest of his term in inactivity. It is also to make, to all intents and purposes, his suspension
permanent.
It is also, in fact, to mete out punishment in spite of the fact that the Mayor's guilt has not been proven. Worse, any
absolution will be for naught because needless to say, the length of his suspension would have, by the time he is reinstated,
wiped out his tenure considerably.
The Court is not to be mistaken for obstructing the efforts of the respondent Secretary to see that justice is done in Iloilo
City, yet it is hardly any argument to inflict on Mayor Ganzon successive suspensions when apparently, the respondent
Secretary has had sufficient time to gather the necessary evidence to build a case against the Mayor without suspending
him a day longer. What is intriguing is that the respondent Secretary has been cracking down, so to speak, on the Mayor
piecemeal apparently, to pin him down ten times the pain, when he, the respondent Secretary, could have pursued a
consolidated effort.
We reiterate that we are not precluding the President, through the Secretary of Interior from exercising a legal power, yet we
are of the opinion that the Secretary of Interior is exercising that power oppressively, and needless to say, with a grave
abuse of discretion.
The Court is aware that only the third suspension is under questions, and that any talk of future suspensions is in fact
premature. The fact remains, however, that Mayor Ganzon has been made to serve a total of 120 days of suspension and the
possibility of sixty days more is arguably around the corner (which amounts to a violation of the Local Government Code
which brings to light a pattern of suspensions intended to suspend the Mayor the rest of his natural tenure. The Court is
simply foreclosing what appears to us as a concerted effort of the State to perpetuate an arbitrary act.
As we said, we can not tolerate such a state of affairs.
We are therefore allowing Mayor Rodolfo Ganzon to suffer the duration of his third suspension and lifting, for the purpose,
the Temporary Restraining Order earlier issued. Insofar as the seven remaining charges are concerned, we are urging the
Department of Local Government, upon the finality of this Decision, to undertake steps to expedite the same, subject to
Mayor Ganzon's usual remedies of appeal, judicial or administrative, or certiorari, if warranted, and meanwhile, we are
precluding the Secretary from meting out further suspensions based on those remaining complaints, notwithstanding
findings of prima facie evidence.
In resume the Court is laying down the following rules:
1. Local autonomy, under the Constitution, involves a mere decentralization of administration, not of power, in which local
officials remain accountable to the central government in the manner the law may provide;
2. The new Constitution does not prescribe federalism;
3. The change in constitutional language (with respect to the supervision clause) was meant but to deny legislative control
over local governments; it did not exempt the latter from legislative regulations provided regulation is consistent with the
fundamental premise of autonomy;
4. Since local governments remain accountable to the national authority, the latter may, by law, and in the manner set forth
therein, impose disciplinary action against local officials;
5. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the President
does not have);
6. The petitioner, Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no longer be suspended for the
offenses he was charged originally; provided:
a) that delays in the investigation of those charges "due to his fault, neglect or request,
(the time of the delay) shall not be counted in computing the time of suspension. [ Supra,
sec. 63(3)]
b) that if during, or after the expiration of, his preventive suspension, the petitioner
commits another or other crimes and abuses for which proper charges are filed against
him by the aggrieved party or parties, his previous suspension shall not be a bar to his
being preventively suspended again, if warranted under subpar. (2), Section 63 of the
Local Government Code.
WHEREFORE, premises considered, the petitions are DISMISSED. The Temporary Restraining Order issued is LIFTED. The
suspensions of the petitioners are AFFIRMED, provided that the petitioner, Mayor Rodolfo Ganzon, may not be made to serve
future suspensions on account of any of the remaining administrative charges pending against him for acts committed prior
to August 11, 1988. The Secretary of Interior is ORDERED to consolidate all such administrative cases pending against Mayor
Ganzon.
The sixty-day suspension against the petitioner, Mary Ann Rivera Artieda, is AFFIRMED. No costs.
SO ORDERED.

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G.R. No. 91649

May 14, 1991
BASCO VS. PAGCOR
PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the Philippine Amusement
and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly contrary to morals, public policy and order,
and because
A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the Manila
City government's right to impose taxes and license fees, which is recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the local
government's right to impose local taxes and license fees. This, in contravention of the constitutionally enshrined
principle of local autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR conducted gambling,
while most other forms of gambling are outlawed, together with prostitution, drug trafficking and other vices;
D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and toward
free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national policy of the "new
restored democracy" and the people's will as expressed in the 1987 Constitution. The decree is said to have a "gambling
objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of Article
XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being also the Chairman
of the Committee on Laws of the City Council of Manila), can question and seek the annulment of PD 1869 on the alleged
grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated January 1, 1977
and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish, operate and maintain gambling
casinos on land or water within the territorial jurisdiction of the Philippines." Its operation was originally conducted in the
well known floating casino "Philippine Tourist." The operation was considered a success for it proved to be a potential source
of revenue to fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to
fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate and centralize
all games of chance authorized by existing franchise or permitted by law, under the following declared policy
Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to centralize and integrate all
games of chance not heretofore authorized by existing franchises or permitted by law in order to attain the
following objectives:
(a) To centralize and integrate the right and authority to operate and conduct games of chance into one corporate
entity to be controlled, administered and supervised by the Government.
(b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming pools,
(basketball, football, lotteries, etc.) and such other forms of amusement and recreation including games of chance,
which may be allowed by law within the territorial jurisdiction of the Philippines and which will: (1) generate sources
of additional revenue to fund infrastructure and socio-civic projects, such as flood control programs, beautification,
sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and such
other essential public services; (2) create recreation and integrated facilities which will expand and improve the
country's existing tourist attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and
corruptions that are normally prevalent on the conduct and operation of gambling clubs and casinos without direct
government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's repealing clause,
all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly repealed, amended or
modified.
It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal Revenue and the
Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to the National Government a total of
P2.5 Billion in form of franchise tax, government's income share, the President's Social Fund and Host Cities' share. In
addition, PAGCOR sponsored other socio-cultural and charitable projects on its own or in cooperation with various
governmental agencies, and other private associations and organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was
employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the livelihood of Four Thousand Four
Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and void" for being
"contrary to morals, public policy and public order," monopolistic and tends toward "crony economy", and is violative of the
equal protection clause and local autonomy as well as for running counter to the state policies enunciated in Sections 11
(Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate consideration by the
Court, involving as it does the exercise of what has been described as "the highest and most delicate function which belongs
to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).

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As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the government We
need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a statute is presumed to be
valid. Every presumption must be indulged in favor of its constitutionality. This is not to say that We approach Our task with
diffidence or timidity. Where it is clear that the legislature or the executive for that matter, has over-stepped the limits of its
authority under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on the
offending statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar underscored the
. . . thoroughly established principle which must be followed in all cases where questions of constitutionality as
obtain in the instant cases are involved. All presumptions are indulged in favor of constitutionality; one who attacks
a statute alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work
hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the
statute, it will be upheld and the challenger must negate all possible basis; that the courts are not concerned with
the wisdom, justice, policy or expediency of a statute and that a liberal interpretation of the constitution in favor of
the constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton,
106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission
on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens
Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are questioning the legal personality of petitioners to file the
instant petition.
Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987
Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside
technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases before us, We hold that the same
is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an
immediate injury as a result of the acts or measures complained of. And even if, strictly speaking they are not
covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove
the impediment to its addressing and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality
of several executive orders issued by President Quirino although they were involving 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 "the 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. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA
343).
Having disposed of the procedural issue, We will now discuss the substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling does not mean that
the Government cannot regulate it in the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact
legislation that may interfere with personal liberty or property in order to promote the general welfare." (Edu v. Ericta, 35
SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its allcomprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides
enough room for an efficient and flexible response to conditions and circumstances thus assuming the greatest benefits.
(Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter. Along with the taxing
power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has
been credited, refers to it succinctly as the plenary power of the state "to govern its citizens". (Tribe, American Constitutional
Law, 323, 1978). The police power of the State is a power co-extensive with self-protection and is most aptly termed the "law
of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent, and
illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that enables the state to meet the
agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an appropriate institution all
games of chance authorized by existing franchise or permitted by law" (1st whereas clause, PD 1869). As was subsequently
proved, regulating and centralizing gambling operations in one corporate entity the PAGCOR, was beneficial not just to the
Government but to society in general. It is a reliable source of much needed revenue for the cash strapped Government. It
provided funds for social impact projects and subjected gambling to "close scrutiny, regulation, supervision and control of
the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct intervention of the
Government, the evil practices and corruptions that go with gambling will be minimized if not totally eradicated. Public
welfare, then, lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that
the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must be referring to Section 13 par. (2)
of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any "tax of any kind or form, income or otherwise,
as well as fees, charges or levies of whatever nature, whether National or Local."
(2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or otherwise as well as fees,
charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this
franchise from the Corporation; nor shall any form or tax or charge attach in any way to the earnings of the
Corporation, except a franchise tax of five (5%) percent of the gross revenues or earnings derived by the

Page 13 of 69

Corporation from its operations under this franchise. Such tax shall be due and payable quarterly to the National
Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description,
levied, established or collected by any municipal, provincial or national government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of Baguio, 83
Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or
statute must plainly show an intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio, 12
SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by
the state itself which has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p.
445).
(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are
mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish
municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5
SCRA 541). Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2,
1950). And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or
even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of
local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and
was vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other local
governments to issue license, permit or other form of franchise to operate, maintain and establish horse and dog
race tracks, jai-alai and other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai
and other forms of gambling shall be issued by the national government upon proper application and verification of
the qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling.
Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is
no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government owned
or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National Government.
In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus:
Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall exercise all
the powers, authority and the responsibilities vested in the Securities and Exchange Commission over such
affiliating entities mentioned under the preceding section, including, but not limited to amendments of Articles of
Incorporation and By-Laws, changes in corporate term, structure, capitalization and other matters concerning the
operation of the affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary
notwithstanding, except only with respect to original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the
category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should
be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by a
mere Local government.
The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the
operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal
government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the part of the
States to touch, in that way (taxation) at least, the instrumentalities of the United States (Johnson v. Maryland, 254
US 51) and it can be agreed that no state or political subdivision can regulate a federal instrumentality in such a
way as to prevent it from consummating its federal responsibilities, or even to seriously burden it in the
accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru extermination of what local authorities may perceive
to be undesirable activities or enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland, supra) cannot be
allowed to defeat an instrumentality or creation of the very entity which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This is a pointless
argument. Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees,
and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic
policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government. (emphasis
supplied)
The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may provide by
law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution),
its "exemption clause" remains as an exception to the exercise of the power of local governments to impose taxes and fees.
It cannot therefore be violative but rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records of the
1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II,
First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an "imperium in imperio."

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Local Government has been described as a political subdivision of a nation or state which is constituted by law and
has substantial control of local affairs. In a unitary system of government, such as the government under the
Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it
cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization
of the function of government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated to local government units remains a matter
of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer Protection v. Energy
Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and hence, it is
the sole prerogative of the State to retain it or delegate it to local governments.
As gambling is usually an offense against the State, legislative grant or express charter power is generally
necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant of power
to enact, ordinance provisions on this subject which are inconsistent with the state laws are void. (Ligan v.
Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25
PAC 974, 22 Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it legalized
PAGCOR conducted gambling, while most gambling are outlawed together with prostitution, drug trafficking and other
vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-accepted meaning of
the clause "equal protection of the laws." The clause does not preclude classification of individuals who may be accorded
different treatment under the law as long as the classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101
Phil. 1155). A law does not have to operate in equal force on all persons or things to be conformable to Article III, Section 1
of the Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or objects upon which
different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not require situations which are different in
fact or opinion to be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not clearly explained in
the petition. The mere fact that some gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by
RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized under certain conditions, while
others are prohibited, does not render the applicable laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances
to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all occupations called by the same name
must be treated the same way; the state may do what it can to prevent which is deemed as evil and stop short of
those cases in which harm to the few concerned is not less than the harm to the public that would insure if the rule
laid down were made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from monopolies and
crony economy and toward free enterprise and privatization" suffice it to state that this is not a ground for this Court to
nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is for the Executive Department to
recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law should
be.1wphi1 Under our system of government, policy issues are within the domain of the political branches of
government and of the people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA
256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No combinations in
restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the Constitution. The state
must still decide whether public interest demands that monopolies be regulated or prohibited. Again, this is a matter of
policy for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of Youth) of
Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of principles and, policies. As such, they are basically not selfexecuting, meaning a law should be passed by Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement
through the courts. They were rather directives addressed to the executive and the legislature. If the executive and
the legislature failed to heed the directives of the articles the available remedy was not judicial or political. The
electorate could express their displeasure with the failure of the executive and the legislature through the language
of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48
SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must
be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one. In other
words, the grounds for nullity must be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who petition
this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of P.D. 1869,
the Court finds that petitioners have failed to overcome the presumption. The dismissal of this petition is therefore,
inevitable. But as to whether P.D. 1869 remains a wise legislation considering the issues of "morality, monopoly, trend to free
enterprise, privatization as well as the state principles on social justice, role of youth and educational values" being raised, is
up for Congress to determine.

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As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the presumption
of validity and constitutionality which petitioners Valmonte and the KMU have not overturned. Petitioners have not
undertaken to identify the provisions in the Constitution which they claim to have been violated by that statute.
This Court, however, is not compelled to speculate and to imagine how the assailed legislation may possibly offend
some provision of the Constitution. The Court notes, further, in this respect that petitioners have in the main put in
question the wisdom, justice and expediency of the establishment of the OPSF, issues which are not properly
addressed to this Court and which this Court may not constitutionally pass upon. Those issues should be addressed
rather to the political departments of government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the gambling resorted to
is excessive. This excessiveness necessarily depends not only on the financial resources of the gambler and his family but
also on his mental, social, and spiritual outlook on life. However, the mere fact that some persons may have lost their
material fortunes, mental control, physical health, or even their lives does not necessarily mean that the same are directly
attributable to gambling. Gambling may have been the antecedent, but certainly not necessarily the cause. For the same
consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.

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G.R. No. 111097 July 20, 1994

MAGTAJAS VS PRYCE PROPERTIES CORPORATION
CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic organizations
angrily denounced the project. The religious elements echoed the objection and so did the women's groups and the youth.
Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest, describing the casino as
an affront to the welfare of the city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its
operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation,
Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino there
during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted
Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS
PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION
THEREOF FOR THE OPERATION OF CASINO.
BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:
Sec. 1. That pursuant to the policy of the city banning the operation of casino within its territorial
jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation
of casino within the city limits.
Sec. 2. That it shall be a violation of existing business permit by any persons, partnership or corporation
to use its business establishment or portion thereof, or allow the use thereof by others for casino operation
and other gambling activities.
Sec. 3. PENALTIES. Any violation of such existing business permit as defined in the preceding section
shall suffer the following penalties, to wit:
a) Suspension of the business permit for sixty (60) days for the first
offense and a fine of P1,000.00/day
b) Suspension of the business permit for Six (6) months for the second
offense, and a fine of P3,000.00/day
c) Permanent revocation of the business permit and imprisonment of
One (1) year, for the third and subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION
THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No.
2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy
against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of
Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to
be used its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991
(Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local
Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity
inimical to public morals and general welfare of the people and/or regulate or prohibit such activity
pertaining to amusement or entertainment in order to protect social and moral welfare of the community;
NOW THEREFORE,
BE IT ORDAINED by the City Council in session duly assembled that:
Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation
undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof;

Page 17 of 69

b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of
P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general
circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental
petitioner. Their challenge succeeded. On March 31, 1993, the Court of Appeals declared the ordinances invalid and issued
the writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the Rules of Court.
aver that the respondent Court of Appeals erred in holding that:

They

1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the
power and authority to prohibit the establishment and operation of a PAGCOR gambling casino within the
City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1)
(v) of R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore
invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of
the instrumentality concerned and inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649, May 14,
1991, 197 SCRA 53 in disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos
on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gaming
Corporation, 4 this Court sustained the constitutionality of the decree and even cited the benefits of the entity to the national
economy as the third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs.
Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in
the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause
now embodied in Section 16 as follows:
Sec. 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.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and
in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and impose
appropriate penalties for habitual drunkenness in public places,
vagrancy, mendicancy, prostitution, establishment and maintenance of
houses of ill repute, gambling and other prohibited games of chance,
fraudulent devices and ways to obtain money or property, drug
addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or
pornographic materials or publications, and such other activities
inimical to the welfare and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and businesses within their territorial limits in
the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of casinos
because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general law and
even by the Constitution itself. The legislative power conferred upon local government units may be exercised over all kinds
of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may
have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them within its
territory pursuant to the authority entrusted to it by the Local Government Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25,
and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the
nation. In giving the local government units the power to prevent or suppress gambling and other social problems, the Local

Page 18 of 69

Government Code has recognized the competence of such communities to determine and adopt the measures best expected
to promote the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local government units to prevent and suppress
gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it meant all forms of gambling
without distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise, it would have expressly excluded from
the scope of their power casinos and other forms of gambling authorized by special law, as it could have easily done. The
fact that it did not do so simply means that the local government units are permitted to prohibit all kinds of gambling within
their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the PAGCOR. The
Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More
than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do not
conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the doubt
must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal interpretation
in favor of the local government units. Section 5 of the Code specifically provides:
Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following rules
shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in
case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower
local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted
in favor of the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local
government units in accelerating economic development and upgrading the quality of life for the people in
the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the Constitution and
several decisions of this Court expressive of the general and official disapprobation of the vice. They invoke the State
policies on the family and the proper upbringing of the youth and, as might be expected, call attention to the old case of U.S.
v. Salaveria, 7 which sustained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry the
immorality of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in
creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the Philippines."
This is the opportune time to stress an important point.
The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to
the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that
matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own
discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of
gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this
Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of
conflicting theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom,
morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the legislative and
executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever
way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge
their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 3375-93
as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid down by law
and not by our own convictions on the propriety of gambling.
The tests of a valid ordinance are well established. A long line of decisions
conform to the following substantive requirements:

has held that to be valid, an ordinance must

1) It must not contravene the constitution or any statute.

2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to prevent
or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of
chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the
Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same
meaning of, words with which it is associated. Accordingly, we conclude that since the word "gambling" is associated with
"and other prohibited games of chance," the word should be read as referring to only illegal gambling which, like the other
prohibited games of chance, must be prevented or suppressed.

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We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The vigorous efforts of
the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve more
than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein
insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in Cagayan de Oro City. The
petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D. 1869 for
an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the Local
Government Code itself, which was also enacted by the national lawmaking authority. In their view, the decree has been, not
really repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino over
the objection of the local government unit concerned. This modification of P.D. 1869 by the Local Government Code is
permissible because one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modified pro tanto,"
they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has
shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not only
prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the
Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no choice but
to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this
construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local
government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot
continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a
prime source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the
provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code.
Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will disclose
the omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government
Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and
issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3)
and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as
amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential
Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464,
477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the
provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of Presidential
Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree
No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this
Code are hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable
showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court explained:
The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of
later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law, this
intention must be given effect; but there must always be a sufficient revelation of this intention, and it has
become an unbending rule of statutory construction that the intention to repeal a former law will not be
imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the
question arises bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points out,
PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of
Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and
R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes.
This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact been
improved as it were to make the entity more responsive to the fiscal problems of the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive
confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as
the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the Code,
the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This is
possible in the case before us. The proper resolution of the problem at hand is to hold that under the Local Government
Code, local government units may (and indeed must) prevent and suppress all kinds of gambling within their territories
except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read into the Code, to
make both the Code and such laws equally effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by law.
Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The petitioners'
suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between these two
forms of gambling without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City of
Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized
by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the
ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and

Page 20 of 69

force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance
despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are
only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by
Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than
those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they
have derived their power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it
may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the
legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong,
sweep from existence all of the municipal corporations in the State, and the corporation could not prevent
it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are,
so to phrase it, the mere tenants at will of the legislature. 11
This basic relationship between the national legislature and the local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we
here confirm that Congress retains control of the local government units although in significantly reduced degree now than
under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the
power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the
local government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of their constituents and their
apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We share the view
that "the hope of large or easy gain, obtained without special effort, turns the head of the workman" 13 and that "habitual
gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be
stamped out. The laws against gambling must be enforced to the limit." George Washington called gambling "the child of
avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the legislature to
decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 and impliedly affirmed in the Local
Government Code. That decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all
official acts. We do not find such contravention here.
We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within
the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local Government
Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a
mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance
No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation
of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced
therein and are therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED, with costs
against the petitioners. It is so ordered.

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G.R. No. 89651 November 10, 1989

ABBAS VS COMELEC
CORTES, J.:
The present controversy relates to the plebiscite in thirteen (13) provinces and nine (9) cities in Mindanao and Palawan, 1
scheduled for November 19, 1989, in implementation of Republic Act No. 6734, entitled "An Act Providing for an Organic Act
for the Autonomous Region in Muslim Mindanao."
These consolidated petitions pray that the Court: (1) enjoin the Commission on Elections (COMELEC) from conducting the
plebiscite and the Secretary of Budget and Management from releasing funds to the COMELEC for that purpose; and (2)
declare R.A. No. 6734, or parts thereof, unconstitutional .
After a consolidated comment was filed by Solicitor General for the respondents, which the Court considered as the answer,
the case was deemed submitted for decision, the issues having been joined. Subsequently, petitioner Mama-o filed a
"Manifestation with Motion for Leave to File Reply on Respondents' Comment and to Open Oral Arguments," which the Court
noted.
The arguments against R.A. 6734 raised by petitioners may generally be categorized into either of the following:
(a) that R.A. 6734, or parts thereof, violates the Constitution, and
(b) that certain provisions of R.A. No. 6734 conflict with the Tripoli Agreement.
The Tripoli Agreement, more specifically, the Agreement Between the government of the Republic of the Philippines of the
Philippines and Moro National Liberation Front with the Participation of the Quadripartie Ministerial Commission Members of
the Islamic Conference and the Secretary General of the Organization of Islamic Conference" took effect on December 23,
1976. It provided for "[t]he establishment of Autonomy in the southern Philippines within the realm of the sovereignty and
territorial integrity of the Republic of the Philippines" and enumerated the thirteen (13) provinces comprising the "areas of
autonomy." 2
In 1987, a new Constitution was ratified, which the for the first time provided for regional autonomy, Article X, section 15 of
the charter provides that "[t]here shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting
of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines."
To effectuate this mandate, the Constitution further provides:
Sec. 16. The President shall exercise general supervision over autonomous regions to ensure that the laws
are faithfully executed.
Sec. 17. All powers, functions, and responsibilities not granted by this Constitution or by law to the
autonomous regions shall be vested in the National Government.
Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure
of government for the region consisting of the executive and representative of the constituent political
units. The organic acts shall likewise provide for special courts with personal, family, and property law
jurisdiction consistent with the provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved by majority of the votes cast by
the constituent units in a plebiscite called for the purpose, provided that only the provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region.
Sec. 19 The first Congress elected under this Constitution shall, within eighteen months from the time of
organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and
the Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws,
the organic act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.
Sec. 21. 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

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applicable laws. The defense and security of the region shall be the responsibility of the National
Government.
Pursuant to the constitutional mandate, R.A. No. 6734 was enacted and signed into law on August 1, 1989.
1. The Court shall dispose first of the second category of arguments raised by petitioners, i.e. that certain provisions of R.A.
No. 6734 conflict with the provisions of the Tripoli Agreement.
Petitioners premise their arguments on the assumption that the Tripoli Agreement is part of the law of the land, being a
binding international agreement . The Solicitor General asserts that the Tripoli Agreement is neither a binding treaty, not
having been entered into by the Republic of the Philippines with a sovereign state and ratified according to the provisions of
the 1973 or 1987 Constitutions, nor a binding international agreement.
We find it neither necessary nor determinative of the case to rule on the nature of the Tripoli Agreement and its binding
effect on the Philippine Government whether under public international or internal Philippine law. In the first place, it is now
the Constitution itself that provides for the creation of an autonomous region in Muslim Mindanao. The standard for any
inquiry into the validity of R.A. No. 6734 would therefore be what is so provided in the Constitution. Thus, any conflict
between the provisions of R.A. No. 6734 and the provisions of the Tripoli Agreement will not have the effect of enjoining the
implementation of the Organic Act. Assuming for the sake of argument that the Tripoli Agreement is a binding treaty or
international agreement, it would then constitute part of the law of the land. But as internal law it would not be superior to
R.A. No. 6734, an enactment of the Congress of the Philippines, rather it would be in the same class as the latter [SALONGA,
PUBLIC INTERNATIONAL LAW 320 (4th ed., 1974), citing Head Money Cases, 112 U.S. 580 (1884) and Foster v. Nelson, 2 Pet.
253 (1829)]. Thus, if at all, R.A. No. 6734 would be amendatory of the Tripoli Agreement, being a subsequent law. Only a
determination by this Court that R.A. No. 6734 contravened the Constitution would result in the granting of the reliefs
sought. 3
2. The Court shall therefore only pass upon the constitutional questions which have been raised by petitioners.
Petitioner Abbas argues that R.A. No. 6734 unconditionally creates an autonomous region in Mindanao, contrary to the
aforequoted provisions of the Constitution on the autonomous region which make the creation of such region dependent
upon the outcome of the plebiscite.
In support of his argument, petitioner cites Article II, section 1(1) of R.A. No. 6734 which declares that "[t]here is hereby
created the Autonomous Region in Muslim Mindanao, to be composed of provinces and cities voting favorably in the
plebiscite called for the purpose, in accordance with Section 18, Article X of the Constitution." Petitioner contends that the
tenor of the above provision makes the creation of an autonomous region absolute, such that even if only two provinces vote
in favor of autonomy, an autonomous region would still be created composed of the two provinces where the favorable votes
were obtained.
The matter of the creation of the autonomous region and its composition needs to be clarified.
Firs, the questioned provision itself in R.A. No. 6734 refers to Section 18, Article X of the Constitution which sets forth the
conditions necessary for the creation of the autonomous region. The reference to the constitutional provision cannot be
glossed over for it clearly indicates that the creation of the autonomous region shall take place only in accord with the
constitutional requirements. Second, there is a specific provision in the Transitory Provisions (Article XIX) of the Organic Act,
which incorporates substantially the same requirements embodied in the Constitution and fills in the details, thus:
SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a
majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this
Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty
(120) days after the approval of this Act: Provided, That only the provinces and cities voting favorably in
such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities
which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing
administrative determination, merge the existing regions.
Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region shall take effect only when approved
by a majority of the votes cast by the constituent units in a plebiscite, and only those provinces and cities where a majority
vote in favor of the Organic Act shall be included in the autonomous region. The provinces and cities wherein such a majority
is not attained shall not be included in the autonomous region. It may be that even if an autonomous region is created, not
all of the thirteen (13) provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall be included
therein. The single plebiscite contemplated by the Constitution and R.A. No. 6734 will therefore be determinative of (1)
whether there shall be an autonomous region in Muslim Mindanao and (2) which provinces and cities, among those
enumerated in R.A. No. 6734, shall compromise it. [See III RECORD OF THE CONSTITUTIONAL COMMISSION 482-492 (1986)].
As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made effective upon the
approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose" [Art. X, sec. 18]. The
question has been raised as to what this majority means. Does it refer to a majority of the total votes cast in the plebiscite in
all the constituent units, or a majority in each of the constituent units, or both?
We need not go beyond the Constitution to resolve this question.
If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would
have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his Constitution shall take effect immediately upon
its ratification by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the provision on the
creation of the autonomous region, which reads:
The creation of the autonomous region shall be effective when approved by majority of the votes cast by
the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X,
sec, 18, para, 2].
it will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the
plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. for if the intention
of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted
the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall
be effective when approved by a majority of the votes cast in a plebiscite called for the purpose."

Page 23 of 69

It is thus clear that what is required by the Constitution is a simple majority of votes approving the organic Act in individual
constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual
constituent units.
More importantly, because of its categorical language, this is also the sense in which the vote requirement in the plebiscite
provided under Article X, section 18 must have been understood by the people when they ratified the Constitution.
Invoking the earlier cited constitutional provisions, petitioner Mama-o, on the other hand, maintains that only those areas
which, to his view, share common and distinctive historical and cultural heritage, economic and social structures, and other
relevant characteristics should be properly included within the coverage of the autonomous region. He insists that R.A. No.
6734 is unconstitutional because only the provinces of Basilan, Sulu, Tawi-Tawi, Lanao del Sur, Lanao del Norte and
Maguindanao and the cities of Marawi and Cotabato, and not all of the thirteen (13) provinces and nine (9) cities included in
the Organic Act, possess such concurrence in historical and cultural heritage and other relevant characteristics. By including
areas which do not strictly share the same characteristics. By including areas which do not strictly share the same
characteristic as the others, petitioner claims that Congress has expanded the scope of the autonomous region which the
constitution itself has prescribed to be limited.
Petitioner's argument is not tenable. The Constitution lays down the standards by which Congress shall determine which
areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of
the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this
ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the
separation of governmental powers. [Angara v. Electoral Commission, 63 Phil 139 (1936); Morfe v. Mutuc, G.R. No. L-20387,
January 31, 1968, 22 SCRA 424].
After assailing the inclusion of non-Muslim areas in the Organic Act for lack of basis, petitioner Mama-o would then adopt the
extreme view that other non-Muslim areas in Mindanao should likewise be covered. He argues that since the Organic Act
covers several non-Muslim areas, its scope should be further broadened to include the rest of the non-Muslim areas in
Mindanao in order for the other non-Muslim areas denies said areas equal protection of the law, and therefore is violative of
the Constitution.
Petitioner's contention runs counter to the very same constitutional provision he had earlier invoked. Any determination by
Congress of what areas in Mindanao should compromise the autonomous region, taking into account shared historical and
cultural heritage, economic and social structures, and other relevant characteristics, would necessarily carry with it the
exclusion of other areas. As earlier stated, such determination by Congress of which areas should be covered by the organic
act for the autonomous region constitutes a recognized legislative prerogative, whose wisdom may not be inquired into by
this Court.
Moreover, equal protection permits of reasonable classification [People v. Vera, 65 Phil. 56 (1963); Laurel v. Misa, 76 Phil. 372
(1946); J.M. Tuason and Co. v. Land tenure Administration, G.R. No. L-21064, February 18, 1970, 31 SCRA 413]. In Dumlao v.
Commission on Elections G.R. No. 52245, January 22, 1980, 95 SCRA 392], the Court ruled that once class may be treated
differently from another where the groupings are based on reasonable and real distinctions. The guarantee of equal
protection is thus not infringed in this case, the classification having been made by Congress on the basis of substantial
distinctions as set forth by the Constitution itself.
Both petitions also question the validity of R.A. No. 6734 on the ground that it violates the constitutional guarantee on free
exercise of religion [Art. III, sec. 5]. The objection centers on a provision in the Organic Act which mandates that should there
be any conflict between the Muslim Code [P.D. No. 1083] and the Tribal Code (still be enacted) on the one had, and the
national law on the other hand, the Shari'ah courts created under the same Act should apply national law. Petitioners
maintain that the islamic law (Shari'ah) is derived from the Koran, which makes it part of divine law. Thus it may not be
subjected to any "man-made" national law. Petitioner Abbas supports this objection by enumerating possible instances of
conflict between provisions of the Muslim Code and national law, wherein an application of national law might be offensive to
a Muslim's religious convictions.
As enshrined in the Constitution, judicial power includes the duty to settle actual controversies involving rights which are
legally demandable and enforceable. [Art. VIII, Sec. 11. As a condition precedent for the power to be exercised, an actual
controversy between litigants must first exist [Angara v. Electoral Commission, supra; Tan v. Macapagal, G.R. No. L-34161,
February 29, 1972, 43 SCRA 677]. In the present case, no actual controversy between real litigants exists. There are no
conflicting claims involving the application of national law resulting in an alleged violation of religious freedom. This being
so, the Court in this case may not be called upon to resolve what is merely a perceived potential conflict between the
provisions the Muslim Code and national law.
Petitioners also impugn the constitutionality of Article XIX, section 13 of R.A. No. 6734 which, among others, states:
. . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the
Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for
inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided, however,
that the President may, by administrative determination, merge the existing regions.
According to petitioners, said provision grants the President the power to merge regions, a power which is not conferred by
the Constitution upon the President. That the President may choose to merge existing regions pursuant to the Organic Act is
challenged as being in conflict with Article X, Section 10 of the Constitution which provides:
No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.
It must be pointed out that what is referred to in R.A. No. 6734 is the merger of administrative regions, i.e. Regions I to XII
and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes [Integrated
Reorganization Plan (1972), which was made as part of the law of the land by Pres. dec. No. 1, Pres. Dec. No. 742].
Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see
Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly provided for in the
Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of
general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the power of
the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities,
municipalities or barangays, not to administrative regions.

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Petitioners likewise question the validity of provisions in the Organic Act which create an Oversight Committee to supervise
the transfer to the autonomous region of the powers, appropriations, and properties vested upon the regional government
by the organic Act [Art. XIX, Secs. 3 and 4]. Said provisions mandate that the transfer of certain national government offices
and their properties to the regional government shall be made pursuant to a schedule prescribed by the Oversight
Committee, and that such transfer should be accomplished within six (6) years from the organization of the regional
government.
It is asserted by petitioners that such provisions are unconstitutional because while the Constitution states that the creation
of the autonomous region shall take effect upon approval in a plebiscite, the requirement of organizing an Oversight
committee tasked with supervising the transfer of powers and properties to the regional government would in effect delay
the creation of the autonomous region.
Under the Constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is
approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous
region immediately takes effect delay the creation of the autonomous region.
Under the constitution, the creation of the autonomous region hinges only on the result of the plebiscite. if the Organic Act is
approved by majority of the votes cast by constituent units in the scheduled plebiscite, the creation of the autonomous
region immediately takes effect. The questioned provisions in R.A. No. 6734 requiring an oversight Committee to supervise
the transfer do not provide for a different date of effectivity. Much less would the organization of the Oversight Committee
cause an impediment to the operation of the Organic Act, for such is evidently aimed at effecting a smooth transition period
for the regional government. The constitutional objection on this point thus cannot be sustained as there is no bases
therefor.
Every law has in its favor the presumption of constitutionality [Yu Cong Eng v. Trinidad, 47 Phil. 387 (1925); Salas v. Jarencio,
G.R. No. L-29788, August 30, 1979, 46 SCRA 734; Morfe v. Mutuc, supra; Peralta v. COMELEC, G.R. No. L-47771, March 11,
1978, 82 SCRA 30]. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish
the basis for such a declaration. otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge
the constitutionality of R.A. No. 6734, the Court finds that petitioners have failed to overcome the presumption. The
dismissal of these two petitions is, therefore, inevitable.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.

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G.R. No. 96754 June 22, 1995

CHIONGBIAN VS ORBOS
MENDOZA, J.:
These suits challenge the validity of a provision of the Organic Act for the Autonomous Region in Muslim Mindanao (R.A. No.
6734), authorizing the President of the Philippines to "merge" by administrative determination the regions remaining after
the establishment of the Autonomous Region, and the Executive Order issued by the President pursuant to such authority,
"Providing for the Reorganization of Administrative Regions in Mindanao." A temporary restraining order prayed for by the
petitioners was issued by this Court on January 29, 1991, enjoining the respondents from enforcing the Executive Order and
statute in question.
The facts are as follows:
Pursuant to Art. X, 18 of the 1987 Constitution, Congress passed R.A. No. 6734, the Organic Act for the Autonomous Region
in Muslim Mindanao, calling for a plebiscite to be held in the provinces of Basilan, Cotobato, Davao del Sur, Lanao del Norte,
Lanao del Sur, Maguindanao, Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and
Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian, Puerto Princesa
and Zamboanga. In the ensuing plebiscite held on November 16, 1989, four provinces voted in favor of creating an
autonomous region. These are the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. In accordance with the
constitutional provision, these provinces became the Autonomous Region in Muslim Mindanao.
On the other hand, with respect to provinces and cities not voting in favor of the Autonomous Region, Art. XIX, 13 of R.A.
No. 6734 provides,
That only the provinces and cities voting favorably in such plebiscites shall be included in the Autonomous
Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions. Provided, however, that the
President may, by administrative determination, merge the existing regions.
Pursuant to the authority granted by this provision, then President Corazon C. Aquino issued on October 12, 1990 Executive
Order No. 429, "providing for the Reorganization of the Administrative Regions in Mindanao." Under this Order, as amended
by E.O. No. 439
(1) Misamis Occidental, at present part of Region X, will become part of Region IX.
(2) Oroquieta City, Tangub City and Ozamiz City, at present parts of Region X will become parts of Region
IX.
(3) South Cotobato, at present a part of Region XI, will become part of Region XII.
(4) General Santos City, at present part of Region XI, will become part of Region XII.
(5) Lanao del Norte, at present part of Region XII, will become part of Region IX.
(6) Iligan City and Marawi City, at present part of Region XII, will become part of Region IX.
Petitioners in G.R. No. 96754 are, or at least at the time of the filing of their petition, members of Congress representing
various legislative districts in South Cotobato, Zamboanga del Norte, Basilan, Lanao del Norte and Zamboanga City. On
November 12, 1990, they wrote then President Aquino protesting E.O. No. 429. They contended that
There is no law which authorizes the President to pick certain provinces and cities within the existing
regions some of which did not even take part in the plebiscite as in the case of the province of Misamis
Occidental and the cities of Oroquieta, Tangub and Ozamiz and restructure them to new administrative
regions. On the other hand, the law (Sec. 13, Art. XIX, R.A. 6734) is specific to the point, that is, that "the
provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall
remain in the existing administrative regions."
The transfer of the provinces of Misamis Occidental from Region X to Region IX; Lanao del Norte from
Region XII to Region IX, and South Cotobato from Region XI to Region XII are alterations of the existing
structures of governmental units, in other words, reorganization. This can be gleaned from Executive Order
No. 429, thus
Whereas, there is an urgent need to reorganize the administrative regions in Mindanao to
guarantee the effective delivery of field services of government agencies taking into
consideration the formation of the Autonomous Region in Muslim Mindanao.
With due respect to Her Excellency, we submit that while the authority necessarily includes the authority
to merge, the authority to merge does not include the authority to reorganize. Therefore, the President's
authority under RA 6734 to "merge existing regions" cannot be construed to include the authority to
reorganize them. To do so will violate the rules of statutory construction.
The transfer of regional centers under Executive Order 429 is actually a restructuring (reorganization) of
administrative regions. While this reorganization, as in Executive Order 429, does not affect the
apportionment of congressional representatives, the same is not valid under the penultimate paragraph of
Sec. 13, Art. XIX of R.A. 6734 and Ordinance appended to the 1986 Constitution apportioning the seats of
the House of Representatives of Congress of the Philippines to the different legislative districts in provinces
and cities. 1
As their protest went unheeded, while Inauguration Ceremonies of the New Administrative Region IX were scheduled on
January 26, 1991, petitioners brought this suit for certiorari and prohibition.
On the other hand, the petitioner in G.R. No. 96673, Immanuel Jaldon, is a resident of Zamboanga City, who is suing in the
capacity of taxpayer and citizen of the Republic of the Philippines.

Page 26 of 69

Petitioners in both cases contend that Art. XIX, 13 of R.A. No. 6734 is unconstitutional because (1) it unduly delegates
legislative power to the President by authorizing him to "merge [by administrative determination] the existing regions" or at
any rate provides no standard for the exercise of the power delegated and (2) the power granted is not expressed in the title
of the law.
In addition, petitioner in G.R. No. 96673 challenges the validity of E.O. No. 429 on the ground that the power granted by Art.
XIX, 13 to the President is only to "merge regions IX and XII" but not to reorganize the entire administrative regions in
Mindanao and certainly not to transfer the regional center of Region IX from Zamboanga City to Pagadian City.
The Solicitor General defends the reorganization of regions in Mindanao by E.O. No. 429 as merely the exercise of a power
"traditionally lodged in the President," as held in Abbas v. Comelec, 2 and as a mere incident of his power of general
supervision over local governments and control of executive departments, bureaus and offices under Art. X, 16 and Art. VII,
17, respectively, of the Constitution.
He contends that there is no undue delegation of legislative power but only a grant of the power to "fill up" or provide the
details of legislation because Congress did not have the facility to provide for them. He cites by analogy the case of
Municipality of Cardona v. Municipality of Binangonan, 3 in which the power of the Governor-General to fix municipal
boundaries was sustained on the ground that
[such power] is simply a transference of certain details with respect to provinces, municipalities, and
townships, many of them newly created, and all of them subject to a more or less rapid change both in
development and centers of population, the proper regulation of which might require not only prompt
action but action of such a detailed character as not to permit the legislative body, as such, to take it
efficiently.
The Solicitor General justifies the grant to the President of the power "to merge the existing regions" as something fairly
embraced in the title of R.A. No. 6734, to wit, "An Act Providing for an Organic Act for the Autonomous Region in Muslim
Mindanao," because it is germane to it.
He argues that the power is not limited to the merger of those regions in which the provinces and cities which took part in
the plebiscite are located but that it extends to all regions in Mindanao as necessitated by the establishment of the
autonomous region.
Finally, he invokes P.D. No. 1416, as amended by P.D. No. 1772 which provides:
1. The President of the Philippines shall have the continuing authority to reorganize the National
Government. In exercising this authority, the President shall be guided by generally acceptable principles
of good government and responsive national government, including but not limited to the following
guidelines for a more efficient, effective, economical and development-oriented governmental framework:
(a) More effective planning implementation, and review functions;
(b) Greater decentralization and responsiveness in decision-making process;
(c) Further minimization, if not, elimination, of duplication or overlapping of purposes,
functions, activities, and programs;
(d) Further development of as standardized as possible ministerial, sub-ministerial and
corporate organizational structures;
(e) Further development of the regionalization process; and
(f) Further rationalization of the functions of and administrative relationships among
government entities.
For purposes of this Decree, the coverage of the continuing authority of the President to
reorganize shall be interpreted to encompass all agencies, entities, instrumentalities,
and units of the National Government, including all government owned or controlled
corporations as well as the entire range of the powers, functions, authorities,
administrative relationships, acid related aspects pertaining to these agencies, entities,
instrumentalities, and units.
2. [T]he President may, at his discretion, take the following actions:
xxx xxx xxx
f. Create, abolish, group, consolidate, merge, or integrate entities, agencies,
instrumentalities, and units of the National Government, as well as expand, amend,
change, or otherwise modify their powers, functions and authorities, including, with
respect to government-owned or controlled corporations, their corporate life,
capitalization, and other relevant aspects of their charters.
g. Take such other related actions as may be necessary to carry out the purposes and
objectives of this Decree.
Considering the arguments of the parties, the issues are:
(1) whether the power to "merge" administrative regions is legislative in character, as petitioners contend, or whether it is
executive in character, as respondents claim it is, and, in any event, whether Art. XIX, 13 is invalid because it contains no
standard to guide the President's discretion;
(2) whether the power given is fairly expressed in the title of the statute; and
(3) whether the power granted authorizes the reorganization even of regions the provinces and cities in which either did not
take part in the plebiscite on the creation of the Autonomous Region or did not vote in favor of it; and

Page 27 of 69

(4) whether the power granted to the President includes the power to transfer the regional center of Region IX from
Zamboanga City to Pagadian City.
It will be useful to recall first the nature of administrative regions and the basis and purpose for their creation. On September
9, 1968, R.A. No. 5435 was passed "authorizing the President of the Philippines, with the help of a Commission on
Reorganization, to reorganize the different executive departments, bureaus, offices, agencies and instrumentalities of the
government, including banking or financial institutions and corporations owned or controlled by it." The purpose was to
promote "simplicity, economy and efficiency in the government." 4 The Commission on Reorganization created under the law
was required to submit an integrated reorganization plan not later than December 31, 1969 to the President who was in turn
required to submit the plan to Congress within forty days after the opening of its next regular session. The law provided that
any reorganization plan submitted would become effective only upon the approval of Congress. 5
Accordingly, the Reorganization Commission prepared an Integrated Reorganization Plan which divided the country into
eleven administrative regions. 6 By P.D. No. 1, the Plan was approved and made part of the law of the land on September 24,
1972. P.D. No. 1 was twice amended in 1975, first by P.D. No. 742 which "restructur[ed] the regional organization of
Mindanao, Basilan, Sulu and Tawi-Tawi" and later by P.D. No. 773 which further "restructur[ed] the regional organization of
Mindanao and divid[ed] Region IX into two sub-regions." In 1978, P.D. No. 1555 transferred the regional center of Region IX
from Jolo to Zamboanga City.
Thus the creation and subsequent reorganization of administrative regions have been by the President pursuant to authority
granted to him by law. In conferring on the President the power "to merge [by administrative determination] the existing
regions" following the establishment of the Autonomous Region in Muslim Mindanao, Congress merely followed the pattern
set in previous legislation dating back to the initial organization of administrative regions in 1972. The choice of the
President as delegate is logical because the division of the country into regions is intended to facilitate not only the
administration of local governments but also the direction of executive departments which the law requires should have
regional offices. As this Court observed in Abbas, "while the power to merge administrative regions is not expressly provided
for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the
power of general supervision over local governments [see Art. X, 4 of the Constitution]." The regions themselves are not
territorial and political divisions like provinces, cities, municipalities and barangays but are "mere groupings of contiguous
provinces for administrative purposes." 7 The power conferred on the President is similar to the power to adjust municipal
boundaries 8 which has been described in Pelaez v. Auditor General 9 or as "administrative in nature."
There is, therefore, no abdication by Congress of its legislative power in conferring on the President the power to merge
administrative regions. The question is whether Congress has provided a sufficient standard by which the President is to be
guided in the exercise of the power granted and whether in any event the grant of power to him is included in the subject
expressed in the title of the law.
First, the question of standard. A legislative standard need not be expressed. It may simply be gathered or implied. 10 Nor
need it be found in the law challenged because it may be embodied in other statutes on the same subject as that of the
challenged legislation. 11
With respect to the power to merge existing administrative regions, the standard is to be found in the same policy
underlying the grant to the President in R.A. No. 5435 of the power to reorganize the Executive Department, to wit: "to
promote simplicity, economy and efficiency in the government to enable it to pursue programs consistent with national goals
for accelerated social and economic development and to improve the service in the transaction of the public business." 12
Indeed, as the original eleven administrative regions were established in accordance with this policy, it is logical to suppose
that in authorizing the President to "merge [by administrative determination] the existing regions" in view of the withdrawal
from some of those regions of the provinces now constituting the Autonomous Region, the purpose of Congress was to
reconstitute the original basis for the organization of administrative regions.
Nor is Art. XIX, 13 susceptible to charge that its subject is not embraced in the title of R.A. No. 6734. The constitutional
requirement that "every bill passed by the Congress shall embrace only one subject which shall be expressed in the title
thereof" 13 has always been given a practical rather than a technical construction. The title is not required to be an index of
the content of the bill. It is a sufficient compliance with the constitutional requirement if the title expresses the general
subject and all provisions of the statute are germane to that subject. 14 Certainly the reorganization of the remaining
administrative regions is germane to the general subject of R.A. No. 6734, which is the establishment of the Autonomous
Region in Muslim Mindanao.
Finally, it is contended that the power granted to the President is limited to the reorganization of administrative regions in
which some of the provinces and cities which voted in favor of regional autonomy are found, because Art. XIX, 13 provides
that those which did not vote for autonomy "shall remain in the existing administrative regions." More specifically, petitioner
in G.R. No. 96673 claims:
The questioned Executive Order No. 429 distorted and, in fact, contravened the clear intent of this
provision by moving out or transferring certain political subdivisions (provinces/cities) out of their legally
designated regions. Aggravating this unacceptable or untenable situation is EO No. 429's effecting certain
movements on areas which did not even participate in the November 19, 1989 plebiscite. The
unauthorized action of the President, as effected by and under the questioned EO No. 429, is shown by the
following dispositions: (1) Misamis Occidental, formerly of Region X and which did not even participate in
the plebiscite, was moved from said Region X to Region IX; (2) the cities of Ozamis, Oroquieta, and Tangub,
all formerly belonging to Region X, which likewise did not participate in the said plebiscite, were
transferred to Region IX; (3) South Cotobato, from Region XI to Region XII; (4) General Santos City: from
Region XI to Region XII; (5) Lanao del Norte, from Region XII to Region IX; and (6) the cities of Marawi and
Iligan from Region XII to Region IX. All of the said provinces and cities voted "NO", and thereby rejected
their entry into the Autonomous Region in Muslim Mindanao, as provided under RA No. 6734. 15
The contention has no merit. While Art. XIX, 13 provides that "The provinces and cities which do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions," this provision is subject to the qualification that "the
President may by administrative determination merge the existing regions." This means that while non-assenting provinces
and cities are to remain in the regions as designated upon the creation of the Autonomous Region, they may nevertheless be
regrouped with contiguous provinces forming other regions as the exigency of administration may require.
The regrouping is done only on paper. It involves no more than are definition or redrawing of the lines separating
administrative regions for the purpose of facilitating the administrative supervision of local government units by the
President and insuring the efficient delivery of essential services. There will be no "transfer" of local governments from one
region to another except as they may thus be regrouped so that a province like Lanao del Norte, which is at present part of
Region XII, will become part of Region IX.

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The regrouping of contiguous provinces is not even analogous to a redistricting or to the division or merger of local
governments, which all have political consequences on the right of people residing in those political units to vote and to be
voted for. It cannot be overemphasized that administrative regions are mere groupings of contiguous provinces for
administrative purposes, not for political representation.
Petitioners nonetheless insist that only those regions, in which the provinces and cities which voted for inclusion in the
Autonomous Region are located, can be "merged" by the President.
To be fundamental reason Art. XIX, 13 is not so limited. But the more fundamental reason is that the President's power
cannot be so limited without neglecting the necessities of administration. It is noteworthy that the petitioners do not claim
that the reorganization of the regions in E.O. No. 429 is irrational. The fact is that, as they themselves admit, the
reorganization of administrative regions in E.O. No. 429 is based on relevant criteria, to wit: (1) contiguity and geographical
features; (2) transportation and communication facilities; (3) cultural and language groupings; (4) land area and population;
(5) existing regional centers adopted by several agencies; (6) socio-economic development programs in the regions and (7)
number of provinces and cities.
What has been said above applies to the change of the regional center from Zamboanga City to Pagadian City. Petitioners
contend that the determination of provincial capitals has always been by act of Congress. But as, this Court said in Abbas, 16
administrative regions are mere "groupings of contiguous provinces for administrative purposes, . . . [They] are not territorial
and political subdivisions like provinces, cities, municipalities and barangays." There is, therefore, no basis for contending
that only Congress can change or determine regional centers. To the contrary, the examples of P.D. Nos. 1, 742, 773 and
1555 suggest that the power to reorganize administrative regions carries with it the power to determine the regional center.
It may be that the transfer of the regional center in Region IX from Zamboanga City to Pagadian City may entail the
expenditure of large sums of money for the construction of buildings and other infrastructure to house regional offices. That
contention is addressed to the wisdom of the transfer rather than to its legality and it is settled that courts are not the
arbiters of the wisdom or expediency of legislation. In any event this is a question that we will consider only if fully briefed
and upon a more adequate record than that presented by petitioners.
WHEREFORE, the petitions for certiorari and prohibition are DISMISSED for lack of merit.
SO ORDERED.

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G.R. No. 79956 January 29, 1990

CORDILLERA BROAD COALITION VS COA
CORTES, J.:
In these consolidated petitions, the constitutionality of Executive Order No. 220, dated July 15, 1987, which created the
(Cordillera Administrative Region, is assailed on the primary ground that it pre-empts the enactment of an organic act by the
Congress and the creation of' the autonomous region in the Cordilleras conditional on the approval of the act through a
plebiscite.
Relative to the creation of autonomous regions, the constitution, in Article X, provides:
AUTONOMOUS REGIONS
Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting
of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and
cultural heritage, economic and social structures, and other relevant characteristics within the framework
of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the
Philippines.
SEC. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are
faithfully executed.
Sec. 17. All powers, functions, and responsibilities not granted Constitution or by law to the autonomous
regions shall be vested in the National Government.
Sec. 18. The Congress shall enact an organic act for each autonomous region with the assistance and
participation of the regional consultative commission composed of representatives appointed by the
President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic
structure of government for the region consisting of the executive department and legislative assembly,
both of which shall be elective and representative of the constituent political units. The organic acts shall
likewise provide for special courts with personal, family and property law jurisdiction consistent with the
provisions of this Constitution and national laws.
The creation of the autonomous region shall be effective when approved by majority of the votes cast by
the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be included in the autonomous region.
Sec. 19. The first Congress elected under this Constitution shall, within eighteen months from the time of
organization of both Houses, pass the organic acts for the autonomous regions in Muslim Mindanao and
the Cordilleras.
Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws,
the organic act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social and tourism development ;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people
of the region.
Sec. 21. 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.
A study of E.O. No. 220 would be incomplete Without reference to its historical background.
In April 1986, just after the EDSA Revolution, Fr. Conrado M. Balweg, S.V.D., broke off on ideological
grounds from the Communist Party of the Philippines (CPP) and its military arm the New People's Army.
(NPA).
After President Aquino was installed into office by People Power, she advocated a policy of national
reconciliation. She called on all revolutionary forces to a peace dialogue. The CPLA heeded this call of the
President. After the preliminary negotiations, President Aquino and some members of her Cabinet flew to
Mt. Data in the Mountain Province on September 13, 1986 and signed with Fr. Conrado M. Balweg (As
Commander of the CPLA and Ama Mario Yag-ao (as President of Cordillera Bodong Administration, the civil
government of the CPLA a ceasefire agreement that signified the cessation of hostilities (WHEREAS No. 7,
E.O. 220).

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The parties arrived at an agreement in principle: the Cordillera people shall not undertake their demands
through armed and violent struggle but by peaceful means, such as political negotiations. The negotiations
shall be a continuing process until the demands of the Cordillera people shall have been substantially
granted.
On March 27, 1987, Ambassador Pelaez [Acting as Chief Negotiator of the government], in pursuance of
the September 13, 1986 agreement, flew to the Mansion House, Baguio City, and signed with Fr. Balweg
(as Chairman of the Cordillera panel) a joint agreement, paragraphs 2 and 3 of which state:
Par. 2- Work together in drafting an Executive Order to create a preparatory body that could perform
policy-making and administrative functions and undertake consultations and studies leading to a draft
organic act for the Cordilleras.
Par. 3- Have representatives from the Cordillera panel join the study group of the R.P. Panel in drafting the
Executive Order.
Pursuant to the above joint agreement, E.O. 220 was drafted by a panel of the Philippine government and
of the representatives of the Cordillera people.
On July 15, 1987, President Corazon C. Aquino signed the joint draft into law, known now as E.O. 220.
[Rejoinder G.R. No. 82217, pp. 2-3].
Executive Order No. 220, issued by the President in the exercise of her legislative powers under Art. XVIII, sec. 6 of the 1987
Constitution, created the Cordillera Administrative Region (CAR) , which covers the provinces of Abra, Benguet, Ifugao,
Kalinga-Apayao and Mountain Province and the City of Baguio [secs. 1 and 2]. It was created to accelerate economic and
social growth in the region and to prepare for the establishment of the autonomous region in the Cordilleras [sec. 3]. Its main
function is to coordinate the planning and implementation of programs and services in the region, particularly, to coordinate
with the local government units as well as with the executive departments of the National Government in the supervision of
field offices and in identifying, planning, monitoring, and accepting projects and activities in the region [sec. 5]. It shall also
monitor the implementation of all ongoing national and local government projects in the region [sec. 20]. The CAR shall have
a Cordillera Regional Assembly as a policy-formulating body and a Cordillera Executive Board as an implementing arm [secs.
7, 8 and 10]. The CAR and the Assembly and Executive Board shall exist until such time as the autonomous regional
government is established and organized [sec. 17].
Explaining the rationale for the issuance of E.O. No. 220, its last "Whereas" clause provides:
WHEREAS, pending the convening of the first Congress and the enactment of the organic act for a
Cordillera autonomous region, there is an urgent need, in the interest of national security and public order,
for the President to reorganize immediately the existing administrative structure in the Cordilleras to suit it
to the existing political realities therein and the Government's legitimate concerns in the areas, without
attempting to pre-empt the constitutional duty of the first Congress to undertake the creation of an
autonomous region on a permanent basis.
During the pendency of this case, Republic Act No. 6766 entitled "An Act Providing for an Organic Act for the Cordillera
Autonomous Region," was enacted and signed into law. The Act recognizes the CAR and the offices and agencies created
under E.O. No. 220 and its transitory nature is reinforced in Art. XXI of R.A. No. 6766, to wit:
SEC. 3. The Cordillera Executive Board, the Cordillera Region Assembly as well as all offices and agencies
created under Execute Order No. 220 shall cease to exist immediately upon the ratification of this Organic
Act.
All funds, properties and assets of the Cordillera Executive Board and the Cordillera Regional Assembly
shall automatically be transferred to the Cordillera Autonomous Government.
I
It is well-settled in our jurisprudence that respect for the inherent and stated powers and prerogatives of the law-making
body, as well as faithful adherence to the principle of separation of powers, require that its enactment be accorded the
presumption of constitutionality. Thus, in any challenge to the constitutionality of a statute, the burden of clearly and
unequivocally proving its unconstitutionality always rests upon the challenger. Conversely, failure to so prove will necessarily
defeat the challenge.
We shall be guided by these principles in considering these consolidated petitions.
In these cases, petitioners principally argue that by issuing E.O. No. 220 the President, in the exercise of her legislative
powers prior to the convening of the first Congress under the 1987 Constitution, has virtually pre-empted Congress from its
mandated task of enacting an organic act and created an autonomous region in the Cordilleras. We have carefully studied
the Constitution and E.O. No. 220 and we have come to the conclusion that petitioners' assertions are unfounded. Events
subsequent to the issuance of E.O. No. 220 also bear out this conclusion.
1. A reading of E.O. No. 220 will easily reveal that what it actually envisions is the consolidation and coordination of the
delivery of services of line departments and agencies of the National Government in the areas covered by the administrative
region as a step preparatory to the grant of autonomy to the Cordilleras. It does not create the autonomous region
contemplated in the Constitution. It merely provides for transitory measures in anticipation of the enactment of an organic
act and the creation of an autonomous region. In short, it prepares the ground for autonomy. This does not necessarily
conflict with the provisions of the Constitution on autonomous regions, as we shall show later.
The Constitution outlines a complex procedure for the creation of an autonomous region in the Cordilleras. A regional
consultative commission shall first be created. The President shall then appoint the members of a regional consultative
commission from a list of nominees from multi-sectoral bodies. The commission shall assist the Congress in preparing the
organic act for the autonomous region. The organic act shall be passed by the first Congress under the 1987 Constitution
within eighteen months from the time of its organization and enacted into law. Thereafter there shall be held a plebiscite for
the approval of the organic act [Art. X, sec. 18]. Only then, after its approval in the plebiscite, shall the autonomous region
be created.

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Undoubtedly, all of these will take time. The President, in 1987 still exercising legislative powers, as the first Congress had
not yet convened, saw it fit to provide for some measures to address the urgent needs of the Cordilleras in the meantime
that the organic act had not yet been passed and the autonomous region created. These measures we find in E.O. No. 220.
The steps taken by the President are obviously perceived by petitioners, particularly petitioner Yaranon who views E.O. No.
220 as capitulation to the Cordillera People's Liberation Army (CPLA) of Balweg, as unsound, but the Court cannot inquire
into the wisdom of the measures taken by the President, We can only inquire into whether or not the measures violate the
Constitution. But as we have seen earlier, they do not.
2. Moreover, the transitory nature of the CAR does not necessarily mean that it is, as petitioner Cordillera Broad Coalition
asserts, "the interim autonomous region in the Cordilleras" [Petition, G.R. No. 79956, p. 25].
The Constitution provides for a basic structure of government in the autonomous region composed of an elective executive
and legislature and special courts with personal, family and property law jurisdiction [Art. X, sec. 18]. Using this as a guide,
we find that E.O. No. 220 did not establish an autonomous regional government. It created a region, covering a specified
area, for administrative purposes with the main objective of coordinating the planning and implementation of programs and
services [secs. 2 and 5]. To determine policy, it created a representative assembly, to convene yearly only for a five-day
regular session, tasked with, among others, identifying priority projects and development programs [sec. 9]. To serve as an
implementing body, it created the Cordillera Executive Board composed of the Mayor of Baguio City, provincial governors
and representatives of the Cordillera Bodong Administration, ethno-linguistic groups and non-governmental organizations as
regular members and all regional directors of the line departments of the National Government as ex-officio members and
headed by an Executive Director [secs. 10 and 11]. The bodies created by E.O. No. 220 do not supplant the existing local
governmental structure, nor are they autonomous government agencies. They merely constitute the mechanism for an
"umbrella" that brings together the existing local governments, the agencies of the National Government, the ethnolinguistic groups or tribes, and non-governmental organizations in a concerted effort to spur development in the Cordilleras.
The creation of the CAR for purposes of administrative coordination is underscored by the mandate of E.O. No. 220 for the
President and appropriate national departments and agencies to make available sources of funds for priority development
programs and projects recommended by the CAR [sec. 21] and the power given to the President to call upon the appropriate
executive departments and agencies of the National Government to assist the CAR [sec. 24].
3. Subsequent to the issuance of E.O. No. 220, the Congress, after it was convened, enacted Republic Act No. 6658 which
created the Cordillera Regional Consultative Commission. The President then appointed its members. The commission
prepared a draft organic act which became the basis for the deliberations of the Senate and the House of Representatives.
The result was Republic Act No. 6766, the organic act for the Cordillera autonomous region, which was signed into law on
October 23, 1989. A plebiscite for the approval of the organic act, to be conducted shortly, shall complete the process
outlined in the Constitution.
In the meantime, E.O. No. 220 had been in force and effect for more than two years and we find that, despite E.O. No. 220,
the autonomous region in the Cordilleras is still to be created, showing the lack of basis of petitioners' assertion. Events have
shown that petitioners' fear that E.O. No. 220 was a "shortcut" for the creation of the autonomous region in the Cordilleras
was totally unfounded.
Clearly, petitioners' principal challenge has failed.
II
A collateral issue raised by petitioners is the nature of the CAR: whether or not it is a territorial and political subdivision. The
Constitution provides in Article X:
Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
xxx xxx xxx
Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly
affected.
We have seen earlier that the CAR is not the autonomous region in the Cordilleras contemplated by the Constitution, Thus,
we now address petitioners' assertion that E. 0. No. 220 contravenes the Constitution by creating a new territorial and
political subdivision.
After carefully considering the provisions of E.O. No. 220, we find that it did not create a new territorial and political
subdivision or merge existing ones into a larger subdivision.
1. Firstly, the CAR is not a public corporation or a territorial and political subdivision. It does not have a separate juridical
personality, unlike provinces, cities and municipalities. Neither is it vested with the powers that are normally granted to
public corporations, e.g. the power to sue and be sued, the power to own and dispose of property, the power to create its
own sources of revenue, etc. As stated earlier, the CAR was created primarily to coordinate the planning and implementation
of programs and services in the covered areas.
The creation of administrative regions for the purpose of expediting the delivery of services is nothing new. The Integrated
Reorganization Plan of 1972, which was made as part of the law of the land by virtue of Presidential Decree No. 1,
established eleven (11) regions, later increased to twelve (12), with definite regional centers and required departments and
agencies of the Executive Branch of the National Government to set up field offices therein. The functions of the regional
offices to be established pursuant to the Reorganization Plan are: (1) to implement laws, policies, plans, programs, rules and
regulations of the department or agency in the regional areas; (2) to provide economical, efficient and effective service to
the people in the area; (3) to coordinate with regional offices of other departments, bureaus and agencies in the area; (4) to
coordinate with local government units in the area; and (5) to perform such other functions as may be provided by law. [See
Part II, chap. III, art. 1, of the Reorganization Plan].
We can readily see that the CAR is in the same genre as the administrative regions created under the Reorganization Plan,
albeit under E.O. No. 220 the operation of the CAR requires the participation not only of the line departments and agencies
of the National Government but also the local governments, ethno-linguistic groups and non-governmental organizations in
bringing about the desired objectives and the appropriation of funds solely for that purpose.

Page 32 of 69

2. Then, considering the control and supervision exercised by the President over the CAR and the offices created under E.O.
No. 220, and considering further the indispensable participation of the line departments of the National Government, the
CAR may be considered more than anything else as a regional coordinating agency of the National Government, similar to
the regional development councils which the President may create under the Constitution [Art. X, sec. 14]. These councils
are "composed of local government officials, regional heads of departments and other government offices, and
representatives from non-governmental organizations within the region for purposes of administrative decentralization to
strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the
units in the region." [Ibid.] In this wise, the CAR may be considered as a more sophisticated version of the regional
development council.
III
Finally, petitioners incidentally argue that the creation of the CAR contravened the constitutional guarantee of the local
autonomy for the provinces (Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain Province) and city (Baguio City) which
compose the CAR.
We find first a need to clear up petitioners' apparent misconception of the concept of local autonomy.
It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec. 2] refers to the
administrative autonomy of local government units or, cast in more technical language, the decentralization of government
authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37 SCRA 1]. Local autonomy is not unique to the 1987
Constitution, it being guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there was no express
guarantee under the 1935 Constitution, the Congress enacted the Local Autonomy Act (R.A. No. 2264) and the
Decentralization Act (R.A. No. 5185), which ushered the irreversible march towards further enlargement of local autonomy in
the country [Villegas v. Subido, supra.]
On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987
Constitution contemplates the grant of political autonomy and not just administrative autonomy these regions. Thus, the
provision in the Constitution for an autonomous regional government with a basic structure consisting of an executive
department and a legislative assembly and special courts with personal, family and property law jurisdiction in each of the
autonomous regions [Art. X, sec. 18].
As we have said earlier, the CAR is a mere transitory coordinating agency that would prepare the stage for political
autonomy for the Cordilleras. It fills in the resulting gap in the process of transforming a group of adjacent territorial and
political subdivisions already enjoying local or administrative autonomy into an autonomous region vested with political
autonomy.
Anent petitioners' objection, we note the obvious failure to show how the creation of the CAR has actually diminished the
local autonomy of the covered provinces and city. It cannot be over-emphasized that pure speculation and a resort to
probabilities are insufficient to cause the invalidation of E.O. No. 220.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.

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[G.R. No. 93054 : December 4, 1990.]

ORDILLO VS COMELEC
GUTIERREZ, JR., J.:
The question raised in this petition is whether or not the province of Ifugao, being the only province which voted favorably
for the creation of the Cordillera Autonomous Region can, alone, legally and validly constitute such Region.
The antecedent facts that gave rise to this petition are as follows:
On January 30, 1990, the people of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao and the
city of Baguio cast their votes in a plebiscite held pursuant to Republic Act No. 6766 entitled "An Act Providing for an Organic
Act for the Cordillera Autonomous Region."
The official Commission on Elections (COMELEC) results of the plebiscite showed that the creation of the Region was
approved by a majority of 5,889 votes in only the Ifugao Province and was overwhelmingly rejected by 148,676 votes in the
rest of the provinces and city above-mentioned.
Consequently, the COMELEC, on February 14, 1990, issued Resolution No. 2259 stating that the Organic Act for the Region
has been approved and/or ratified by majority of the votes cast only in the province of Ifugao. On the same date, the
Secretary of Justice issued a memorandum for the President reiterating the COMELEC resolution and provided:
". . . [A]nd considering the proviso in Sec. 13(A) that only the provinces and city voting favorably shall be included in the
CAR, the province of Ifugao being the only province which voted favorably then, alone, legally and validly constitutes the
CAR." (Rollo, p. 7)
As a result of this, on March 8, 1990, Congress enacted Republic Act No. 6861 setting the elections in the Cordillera
Autonomous Region of Ifugao on the first Monday of March 1991.: nad
Even before the issuance of the COMELEC resolution, the Executive Secretary on February 5, 1990 issued a Memorandum
granting authority to wind up the affairs of the Cordillera Executive Board and the Cordillera Regional Assembly created
under Executive Order No. 220.
On March 9, 1990, the petitioner filed a petition with COMELEC to declare the non-ratification of the Organic Act for the
Region. The COMELEC merely noted said petition.
On March 30, 1990, the President issued Administrative Order No. 160 declaring among others that the Cordillera Executive
Board and Cordillera Regional Assembly and all the offices created under Executive Order No. 220 were abolished in view of
the ratification of the Organic Act.- nad
The petitioners maintain that there can be no valid Cordillera Autonomous Region in only one province as the Constitution
and Republic Act No. 6766 require that the said Region be composed of more than one constituent unit.
The petitioners, then, pray that the Court: (1) declare null and void COMELEC resolution No. 2259, the memorandum of the
Secretary of Justice, the memorandum of the Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861
and prohibit and restrain the respondents from implementing the same and spending public funds for the purpose and (2)
declare Executive Order No. 220 constituting the Cordillera Executive Board and the Cordillera Regional Assembly and other
offices to be still in force and effect until another organic law for the Autonomous Region shall have been enacted by
Congress and the same is duly ratified by the voters in the constituent units. We treat the Comments of the respondents as
an answer and decide the case.
This petition is meritorious.
The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.
It is explicit in Article X, Section 15 of the 1987 Constitution that:
"Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordillera consisting of
provinces, cities, municipalities and geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines."
(Emphasis Supplied)
The keywords provinces, cities, municipalities and geographical areas connote that "region" is to be made up of more than
one constituent unit. The term "region" used in its ordinary sense means two or more provinces. This is supported by the fact
that the thirteen (13) regions into which the Philippines is divided for administrative purposes are groupings of contiguous
provinces. (Integrated Reorganization Plan (1972), which was made as part of the law of the land by P.D. No. 1; P.D. No. 742)
Ifugao is a province by itself. To become part of a region, it must join other provinces, cities, municipalities, and geographical
areas. It joins other units because of their common and distinctive historical and cultural heritage, economic and social
structures and other relevant characteristics. The Constitutional requirements are not present in this case.- nad
The well-established rule in statutory construction that the language of the Constitution, as much as possible should be
understood in the sense it has in common use and that the words used in constitutional provisions are to be given their
ordinary meaning except where technical terms are employed, must then, be applied in this case. (See Baranda v. Gustilo,
165 SCRA 757, 770, [1988]; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 422-423 [1970]).
Aside from the 1987 Constitution, a reading of the provisions of Republic Act No. 6766 strengthens the petitioner's position
that the Region cannot be constituted from only one province.
Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous Region is to be administered by the
Cordillera government consisting of the Regional Government and local government units. It further provides that:
"SECTION 2. The Regional Government shall exercise powers and functions necessary for the proper governance
and development of all provinces, cities, municipalities, and barangay or ili within the Autonomous Region . . ."

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From these sections, it can be gleaned that Congress never intended that a single province may constitute the autonomous
region. Otherwise, we would be faced with the absurd situation of having two sets of officials, a set of provincial officials and
another set of regional officials exercising their executive and legislative powers over exactly the same small area.
Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the Cordillera Assembly whose members shall
be elected from regional assembly districts apportioned among provinces and the cities composing the Autonomous Region.
chanrobles virtual law library
If we follow the respondent's position, the members of such Cordillera Assembly shall then be elected only from the province
of Ifugao creating an awkward predicament of having two legislative bodies the Cordillera Assembly and the Sangguniang
Panlalawigan exercising their legislative powers over the province of Ifugao. And since Ifugao is one of the smallest
provinces in the Philippines, population-wise, it would have too many government officials for so few people.:-cralaw
Article XII, Section 10 of the law creates a Regional Planning and Development Board composed of the Cordillera Governor,
all the provincial governors and city mayors or their representatives, two members of the Cordillera Assembly, and members
representing the private sector. The Board has a counterpart in the provincial level called the Provincial Planning and
Development Coordinator. The Board's functions (Article XII, Section 10, par. 2, Republic Act No. 6766) are almost similar to
those of the Provincial Coordinator's (Title Four, Chapter 3, Article 10, Section 220 (4), Batas Pambansa Blg. 337 Local
Government Code). If it takes only one person in the provincial level to perform such functions while on the other hand it
takes an entire Board to perform almost the same tasks in the regional level, it could only mean that a larger area must be
covered at the regional level. The respondent's theory of the Autonomous Region being made up of a single province must,
therefore, fail.
Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos (P10,000,000.00) to the Regional Government for
its initial organizational requirements cannot be construed as funding only a lone and small province.
These sections of Republic Act No. 6766 show that a one province Cordillera Autonomous Region was never contemplated by
the law creating it.
The province of Ifugao makes up only 11% of the total population of the areas enumerated in Article I, Section 2 (b) of
Republic Act No. 6766 which include Benguet, Mountain Province, Abra, Kalinga-Apayao and Baguio City. It has the second
smallest number of inhabitants from among the provinces and city above mentioned. The Cordillera population is distributed
in round figures as follows: Abra, 185,000; Benguet, 486,000; Ifugao, 149,000; Kalinga-Apayao, 214,000; Mountain Province,
116,000; and Baguio City, 183,000; Total population of these five provinces and one city; 1,332,000 according to the 1990
Census (Manila Standard, September 30, 1990, p. 14).
There are other provisions of Republic Act No. 6766 which are either violated or which cannot be complied with. Section 16
of Article V calls for a Regional Commission on Appointments with the Speaker as Chairman and are (6) members coming
from different provinces and cities in the Region. Under the respondents' view, the Commission would have a Chairman and
only one member. It would never have a quorum. Section 3 of Article VI calls for cabinet members, as far as practicable, to
come from various provinces and cities of the Region. Section 1 of Article VII creates a system of tribal courts for the various
indigenous cultural communities of the Region. Section 9 of Article XV requires the development of a common regional
language based upon the various languages and dialects in the region which regional language in turn is expected to enrich
the national language.
The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is infused with provisions which rule
against the sole province of Ifugao constituting the Region.:-cralaw
To contemplate the situation envisioned by the respondent would not only violate the letter and intent of the Constitution
and Republic Act No. 6766 but would also be impractical and illogical.
Our decision in Abbas, et al. v. COMELEC, (G.R. No. 89651, November 10, 1969), is not applicable in the case at bar contrary
to the view of the Secretary of Justice.
The Abbas case laid down the rate on the meaning of majority in the phrase "by majority of the votes cast by the constituent
units called for the purpose" found in the Constitution, Article X, Section 18. It stated:
x x x
". . . [I]t is thus clear that what is required by the Constitution is simple majority of votes approving the Organic Act
in individual constituent units and not a double majority of the votes in all constituent units put together, as well as
in the individual constituent units."
This was the pronouncement applied by the Secretary of Justice in arriving at his conclusion stated in his Memorandum for
the President that:
x x x
". . . [i]t is believed that the creation of the Cordillera Autonomous Region (CAR) as mandated by R.A. No. 6766
became effective upon its approval by the majority of the votes cast in the province of Ifugao. And considering the
proviso in Section 13 (a) that only the provinces and city voting favorably shall be included in the CAR, the province
of Ifugao being the only province which voted favorably can, alone, legally and validly constitute the CAR." (Rollo.
p. 40).
The plebiscites mandated by the Constitution and Republic Act No. 6766 for the Cordillera and Republic Act No. 6734 for the
Autonomous Region in Muslim Mindanao determine (1) whether there shall be an autonomous region in the Cordillera and
in Muslim Mindanao and (2) which provinces and cities, among those enumerated in the two Republic Acts, shall comprise
said Autonomous Regions. (See III, Record of the Constitutional Commission, 487-492 [1986]).
The Abbas case established the rule to follow on which provinces and cities shall comprise the autonomous region in Muslim
Mindanao which is, consequently, the same rule to follow with regard to the autonomous region in the Cordillera. However,
there is nothing in the Abbas decision which deals with the issue on whether an autonomous region, in either Muslim
Mindanao or Cordillera could exist despite the fact that only one province or one city is to constitute it.chanrobles virtual law
library

Page 35 of 69

Stated in another way, the issue in this case is whether the sole province of Ifugao can validly and legally constitute the
Cordillera Autonomous Region. The issue is not whether the province of Ifugao is to be included in the Cordillera Autonomous
Region. It is the first issue which the Court answers in the instant case.
WHEREFORE, the petition is hereby GRANTED. Resolution No. 2259 of the Commission on Elections, insofar as it upholds the
creation of an autonomous region, the February 14, 1990 memorandum of the Secretary of Justice, the February 5, 1990
memorandum of the Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 are declared null and
void while Executive Order No. 220 is declared to be still in force and effect until properly repealed or amended.
SO ORDERED.

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G.R. No. 176970

December 8, 2008
BAGABUYO VS COMELEC
BRION, J.:
Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for the issuance of a temporary restraining
order and a writ of preliminary injunction, filed by Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections
(COMELEC) from implementing Resolution No. 7837 on the ground that Republic Act No. 9371 2 - the law that Resolution No.
7837 implements - is unconstitutional.
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed and sponsored House Bill No. 5859:
"An Act Providing for the Apportionment of the Lone Legislative District of the City of Cagayan De Oro." 3 This law eventually
became Republic Act (R.A.) No. 9371. 4 It increased Cagayan de Oro's legislative district from one to two. For the election of
May 2007, Cagayan de Oro's voters would be classified as belonging to either the first or the second district, depending on
their place of residence. The constituents of each district would elect their own representative to Congress as well as eight
members of the Sangguniang Panglungsod.
Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:
Legislative Districts - The lone legislative district of the City of Cagayan De Oro is hereby apportioned to commence
in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan,
Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi,
Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise
the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macasandig, Indahag,
Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district. 5
On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376 implementing R.A. No. 9371.
Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27, 2007. 7 On 10 April 2008, the
petitioner amended the petition to include the following as respondents: Executive Secretary Eduardo Ermita; the Secretary
of the Department of Budget and Management; the Chairman of the Commission on Audit; the Mayor and the members of
the Sangguniang Panglungsod of Cagayan de Oro City; and its Board of Canvassers. 8
In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds, the petitioner argued that
the COMELEC cannot implement R.A. No. 9371 without providing for the rules, regulations and guidelines for the conduct of a
plebiscite which is indispensable for the division or conversion of a local government unit. He prayed for the issuance of an
order directing the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution No. 7837,
and to revert instead to COMELEC Resolution No. 7801 which provided for a single legislative district for Cagayan de Oro.
Since the Court did not grant the petitioner's prayer for a temporary restraining order or writ of preliminary injunction, the
May 14 National and Local Elections proceeded according to R.A. No. 9371 and Resolution No. 7837.
The respondent's Comment on the petition, filed through the Office of the Solicitor General, argued that: 1) the petitioner did
not respect the hierarchy of courts, as the Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases
assailing the constitutionality of a statute; 2) R.A. No. 9371 merely increased the representation of Cagayan de Oro City in
the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; 3) the
criteria established under Section 10, Article X of the 1987 Constitution only apply when there is a creation, division, merger,
abolition or substantial alteration of boundaries of a province, city, municipality, or barangay; in this case, no such creation,
division, merger, abolition or alteration of boundaries of a local government unit took place; and 4) R.A. No. 9371 did not
bring about any change in Cagayan de Oro's territory, population and income classification; hence, no plebiscite is required.
The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v. PAGCOR,9 the Court may take
cognizance of this petition if compelling reasons, or the nature and importance of the issues raised, warrant the immediate
exercise of its jurisdiction; 2) Cagayan de Oro City's reapportionment under R.A. No. 9371 falls within the meaning of
creation, division, merger, abolition or substantial alteration of boundaries of cities under Section 10, Article X of the
Constitution; 3) the creation, division, merger, abolition or substantial alteration of boundaries of local government units
involve a common denominator - the material change in the political and economic rights of the local government units
directly affected, as well as of the people therein; 4) a voter's sovereign power to decide on who should be elected as the
entire city's Congressman was arbitrarily reduced by at least one half because the questioned law and resolution only
allowed him to vote and be voted for in the district designated by the COMELEC; 5) a voter was also arbitrarily denied his
right to elect the Congressman and the members of the city council for the other legislative district, and 6) government
funds were illegally disbursed without prior approval by the sovereign electorate of Cagayan De Oro City. 10
THE ISSUES
The core issues, based on the petition and the parties' memoranda, can be limited to the following contentious points:
1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be dismissed on this
ground?
2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro City, or does it involve
the division and conversion of a local government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?
OUR RULING
Except for the issue of the hierarchy of courts rule, we find the petition totally without merit.
The hierarchy of courts principle.
The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.11 It was pursuant to this original jurisdiction that the petitioner filed the present petition.
While this jurisdiction is shared with the Court of Appeals 12 and the RTCs,13 a direct invocation of the Supreme Court's
jurisdiction is allowed only when there are special and important reasons therefor, clearly and especially set out in the
petition. Reasons of practicality, dictated by an increasingly overcrowded docket and the need to prioritize in favor of
matters within our exclusive jurisdiction, justify the existence of this rule otherwise known as the "principle of hierarchy of

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courts." More generally stated, the principle requires that recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court. 14
Among the cases we have considered sufficiently special and important to be exceptions to the rule, are petitions for
certiorari, prohibition, mandamus and quo warranto against our nation's lawmakers when the validity of their enactments is
assailed.15 The present petition is of this nature; its subject matter and the nature of the issues raised - among them,
whether legislative reapportionment involves a division of Cagayan de Oro City as a local government unit - are reasons
enough for considering it an exception to the principle of hierarchy of courts. Additionally, the petition assails as well a
resolution of the COMELEC en banc issued to implement the legislative apportionment that R.A. No. 9371 decrees. As an
action against a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in turn requires a review
by this Court via a Rule 65 petition for certiorari.16 For these reasons, we do not see the principle of hierarchy of courts to be
a stumbling block in our consideration of the present case.
The Plebiscite Requirement.
The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local government unit, and
does not merely provide for the City's legislative apportionment. This argument essentially proceeds from a
misunderstanding of the constitutional concepts of apportionment of legislative districts and division of local government
units.
Legislative apportionment is defined by Black's Law Dictionary as the determination of the number of representatives which
a State, county or other subdivision may send to a legislative body. 17It is the allocation of seats in a legislative body in
proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the
districts.18 Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by
changes in population and mandated by the constitutional requirement of equality of representation.19
Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative apportionment under
its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be composed of not more than two hundred fifty members unless
otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and
the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of
registered national, regional and sectoral parties or organizations.
xxx
(3) Each legislative district shall comprise, as far as practicable, continuous, compact, and adjacent territory. Each
city with a population of at least two hundred fifty thousand, or each province, shall have at least one
representative.
(4) Within three years following the return of every census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in this section.
Separately from the legislative districts that legal apportionment or reapportionment speaks of, are the local government
units (historically and generically referred to as "municipal corporations") that the Constitution itself classified into provinces,
cities, municipalities and barangays.20 In its strict and proper sense, a municipality has been defined as "a body politic and
corporate constituted by the incorporation of the inhabitants of a city or town for the purpose of local government thereof." 21
The creation, division, merger, abolition or alteration of boundary of local government units, i.e., of provinces, cities,
municipalities, and barangays, are covered by the Article on Local Government (Article X). Section 10 of this Article provides:
No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code and subject to
approval by a majority of the votes cast in a plebiscite in the political unit directly affected.
Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has been vested in the
Legislature. The Legislature undertakes the apportionment and reapportionment of legislative districts, 22 and likewise acts on
local government units by setting the standards for their creation, division, merger, abolition and alteration of boundaries
and by actually creating, dividing, merging, abolishing local government units and altering their boundaries through
legislation. Other than this, not much commonality exists between the two provisions since they are inherently different
although they interface and relate with one another.
The concern that leaps from the text of Article VI, Section 5 is political representation and the means to make a legislative
district sufficiently represented so that the people can be effectively heard. As above stated, the aim of legislative
apportionment is "to equalize population and voting power among districts." 23 Hence, emphasis is given to the number of
people represented; the uniform and progressive ratio to be observed among the representative districts; and accessibility
and commonality of interests in terms of each district being, as far as practicable, continuous, compact and adjacent
territory. In terms of the people represented, every city with at least 250,000 people and every province (irrespective of
population) is entitled to one representative. In this sense, legislative districts, on the one hand, and provinces and cities, on
the other, relate and interface with each other. To ensure continued adherence to the required standards of apportionment,
Section 5(4) specifically mandates reapportionment as soon as the given standards are met.
In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10 expressly speaks of how local
government units may be "created, divided, merged, abolished, or its boundary substantially altered." Its concern is the
commencement, the termination, and the modification of local government units' corporate existence and territorial
coverage; and it speaks of two specific standards that must be observed in implementing this concern, namely, the criteria
established in the local government code and the approval by a majority of the votes cast in a plebiscite in the political units
directly affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of income, population and
land area are specified as verifiable indicators of viability and capacity to provide services. 24 The division or merger of
existing units must comply with the same requirements (since a new local government unit will come into being), provided
that a division shall not reduce the income, population, or land area of the unit affected to less than the minimum
requirement prescribed in the Code.25
A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the requirement of a plebiscite. The
Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger,
abolition or alteration of boundary of a local government unit. 26 In contrast, no plebiscite requirement exists under the
apportionment or reapportionment provision. In Tobias v. Abalos,27 a case that arose from the division of the congressional

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district formerly covering San Juan and Mandaluyong into separate districts, we confirmed this distinction and the fact that
no plebiscite is needed in a legislative reapportionment. The plebiscite issue came up because one was ordered and held for
Mandaluyong in the course of its conversion into a highly urbanized city, while none was held for San Juan. In explaining why
this happened, the Court ruled that no plebiscite was necessary for San Juan because the objective of the plebiscite was the
conversion of Mandaluyong into a highly urbanized city as required by Article X, Section 10 the Local Government Code; the
creation of a new legislative district only followed as a consequence. In other words, the apportionment alone and by itself
did not call for a plebiscite, so that none was needed for San Juan where only a reapportionment took place.
The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under Article VI, Section 5 can best
be appreciated by a consideration of the historical roots of these two provisions, the nature of the concepts they embody as
heretofore discussed, and their areas of application.
A Bit of History.
In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American roots of our apportionment provision, noting
its roots from the Fourteenth Amendment29 of the U.S. Constitution and from the constitutions of some American states. The
Philippine Organic Act of 1902 created the Philippine Assembly, 30 the body that acted as the lower house of the bicameral
legislature under the Americans, with the Philippine Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the conformity of the U.S. Senate, the members of the
Philippine Assembly were elected by representative districts previously delineated under the Philippine Organic Act of 1902
pursuant to the mandate to apportion the seats of the Philippine Assembly among the provinces as nearly as practicable
according to population. Thus, legislative apportionment first started in our country.
The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment provision, dividing the country into 12
senate districts and 90 representative districts electing one delegate each to the House of Representatives. Section 16 of the
Act specifically vested the Philippine Legislature with the authority to redistrict the Philippine Islands.
Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment together with "district"
as the basic unit of apportionment; the concern was "equality of representation . . . as an essential feature of republican
institutions" as expressed in the leading case of Macias v. COMELEC.31 The case ruled that inequality of representation is a
justiciable, not a political issue, which ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the holding
of a plebiscite ever came up in these cases and the others that followed, as no plebiscite was required.
Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation "in accordance with the number
of their respective inhabitants and on the basis of a uniform and progressive ratio" with each district being, as far as
practicable, contiguous, compact and adjacent territory. This formulation was essentially carried over to the 1987
Constitution, distinguished only from the previous one by the presence of party-list representatives. In neither Constitution
was a plebiscite required.
The need for a plebiscite in the creation, division, merger, or abolition of local government units was not constitutionally
enshrined until the 1973 Constitution. However, as early as 1959, R.A. No. 2264 33 required, in the creation of barrios by
Provincial Boards, that the creation and definition of boundaries be "upon petition of a majority of the voters in the areas
affected." In 1961, the Charter of the City of Caloocan (R.A. No. 3278) carried this further by requiring that the " Act shall
take effect after a majority of voters of the Municipality of Caloocan vote in favor of the conversion of their municipality into
a city in a plebiscite." This was followed up to 1972 by other legislative enactments requiring a plebiscite as a condition for
the creation and conversion of local government units as well as the transfer of sitios from one legislative unit to another. 34
In 1973, the plebiscite requirement was accorded constitutional status.
Under these separate historical tracks, it can be seen that the holding of a plebiscite was never a requirement in legislative
apportionment or reapportionment. After it became constitutionally entrenched, a plebiscite was also always identified with
the creation, division, merger, abolition and alteration of boundaries of local government units, never with the concept of
legislative apportionment.
Nature and Areas of Application.
The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a political unit because it is the basis for
the election of a member of the House of Representatives and members of the local legislative body. It is not, however, a
political subdivision through which functions of government are carried out. It can more appropriately be described as a
representative unit that may or may not encompass the whole of a city or a province, but unlike the latter, it is not a
corporate unit. Not being a corporate unit, a district does not act for and in behalf of the people comprising the district; it
merely delineates the areas occupied by the people who will choose a representative in their national affairs. Unlike a
province, which has a governor; a city or a municipality, which has a mayor; and a barangay, which has a punong barangay,
a district does not have its own chief executive. The role of the congressman that it elects is to ensure that the voice of the
people of the district is heard in Congress, not to oversee the affairs of the legislative district. Not being a corporate unit also
signifies that it has no legal personality that must be created or dissolved and has no capacity to act. Hence, there is no
need for any plebiscite in the creation, dissolution or any other similar action on a legislative district.
The local government units, on the other hand, are political and corporate units. They are the territorial and political
subdivisions of the state.35 They possess legal personality on the authority of the Constitution and by action of the
Legislature. The Constitution defines them as entities that Congress can, by law, create, divide, abolish, merge; or whose
boundaries can be altered based on standards again established by both the Constitution and the Legislature. 36 A local
government unit's corporate existence begins upon the election and qualification of its chief executive and a majority of the
members of its Sanggunian.37
As a political subdivision, a local government unit is an "instrumentality of the state in carrying out the functions of
government."38 As a corporate entity with a distinct and separate juridical personality from the State, it exercises special
functions for the sole benefit of its constituents. It acts as "an agency of the community in the administration of local
affairs"39 and the mediums through which the people act in their corporate capacity on local concerns. 40 In light of these
roles, the Constitution saw it fit to expressly secure the consent of the people affected by the creation, division, merger,
abolition or alteration of boundaries of local government units through a plebiscite.
These considerations clearly show the distinctions between a legislative apportionment or reapportionment and the division
of a local government unit. Historically and by its intrinsic nature, a legislative apportionment does not mean, and does not
even imply, a division of a local government unit where the apportionment takes place. Thus, the plebiscite requirement that
applies to the division of a province, city, municipality or barangay under the Local Government Code should not apply to
and be a requisite for the validity of a legislative apportionment or reapportionment.

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

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance with the authority
granted to Congress under Article VI, Section 5(4) of the Constitution. Its core provision - Section 1 - provides:
SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan de Oro is hereby apportioned to
commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas,
Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia,
Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and
Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth,
Macansandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all
urban barangays from Barangay 1 to Barangay 40 shall comprise the second district.
Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes place or is mandated.
Cagayan de Oro City politically remains a single unit and its administration is not divided along territorial lines. Its territory
remains completely whole and intact; there is only the addition of another legislative district and the delineation of the city
into two districts for purposes of representation in the House of Representatives. Thus, Article X, Section 10 of the
Constitution does not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two
districts.
Admittedly, the legislative reapportionment carries effects beyond the creation of another congressional district in the city
by providing, as reflected in COMELEC Resolution No. 7837, for additional Sangguniang Panglunsod seats to be voted for
along the lines of the congressional apportionment made. The effect on the Sangguniang Panglunsod, however, is not
directly traceable to R.A. No. 9371 but to another law - R.A. No. 6636 41 - whose Section 3 provides:
SECTION 3. Other Cities. - The provision of any law to the contrary notwithstanding the City of Cebu, City of Davao,
and any other city with more than one representative district shall have eight (8) councilors for each district who
shall be residents thereof to be elected by the qualified voters therein, provided that the cities of Cagayan de Oro,
Zamboanga, Bacolod, Iloilo and other cities comprising a representative district shall have twelve (12) councilors
each and all other cities shall have ten (10) councilors each to be elected at large by the qualified voters of the said
cities: Provided, That in no case shall the present number of councilors according to their charters be reduced.
However, neither does this law have the effect of dividing the City of Cagayan de Oro into two political and corporate units
and territories. Rather than divide the city either territorially or as a corporate entity, the effect is merely to enhance voter
representation by giving each city voter more and greater say, both in Congress and in the Sangguniang Panglunsod.
To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and 12 city council
members citywide for its population of approximately 500,000. 42 By having two legislative districts, each of them with one
congressman, Cagayan de Oro now effectively has two congressmen, each one representing 250,000 of the city's
population. In terms of services for city residents, this easily means better access to their congressman since each one now
services only 250,000 constituents as against the 500,000 he used to represent. The same goes true for the Sangguniang
Panglungsod with its ranks increased from 12 to 16 since each legislative district now has 8 councilors. In representation
terms, the fewer constituents represented translate to a greater voice for each individual city resident in Congress and in the
Sanggunian; each congressman and each councilor represents both a smaller area and fewer constituents whose fewer
numbers are now concentrated in each representative. The City, for its part, now has twice the number of congressmen
speaking for it and voting in the halls of Congress. Since the total number of congressmen in the country has not increased
to the point of doubling its numbers, the presence of two congressman (instead of one) from the same city cannot but be a
quantitative and proportional improvement in the representation of Cagayan de Oro City in Congress.
Equality of representation.
The petitioner argues that the distribution of the legislative districts is unequal. District 1 has only 93,719 registered voters
while District 2 has 127,071. District 1 is composed mostly of rural barangays while District 2 is composed mostly of urban
barangays.43 Thus, R.A. No. 9371 violates the principle of equality of representation.
A clarification must be made. The law clearly provides that the basis for districting shall be the number of the inhabitants of
a city or a province, not the number of registered voters therein. We settled this very same question in Herrera v. COMELEC44
when we interpreted a provision in R.A. No. 7166 and COMELEC Resolution No. 2313 that applied to the Province of
Guimaras. We categorically ruled that the basis for districting is the number of inhabitants of the Province of Guimaras by
municipality based on the official 1995 Census of Population as certified to by Tomas P. Africa, Administrator of the National
Statistics Office.
The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City. However, we
take judicial notice of the August 2007 census of the National Statistics Office which shows that barangays comprising
Cagayan de Oro's first district have a total population of 254,644, while the second district has 299,322 residents.
Undeniably, these figures show a disparity in the population sizes of the districts. 45 The Constitution, however, does not
require mathematical exactitude or rigid equality as a standard in gauging equality of representation. 46 In fact, for cities, all it
asks is that "each city with a population of at least two hundred fifty thousand shall have one representative," while ensuring
representation for every province regardless of the size of its population. To ensure quality representation through
commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is
that every legislative district should comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the
Constitution leaves the local government units as they are found and does not require their division, merger or transfer to
satisfy the numerical standard it imposes. Its requirements are satisfied despite some numerical disparity if the units are
contiguous, compact and adjacent as far as practicable.
The petitioner's contention that there is a resulting inequality in the division of Cagayan de Oro City into two districts
because the barangays in the first district are mostly rural barangays while the second district is mostly urban, is largely
unsubstantiated. But even if backed up by proper proof, we cannot question the division on the basis of the difference in the
barangays' levels of development or developmental focus as these are not part of the constitutional standards for legislative
apportionment or reapportionment. What the components of the two districts of Cagayan de Oro would be is a matter for the
lawmakers to determine as a matter of policy. In the absence of any grave abuse of discretion or violation of the established
legal parameters, this Court cannot intrude into the wisdom of these policies. 47
WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the petitioner. SO ORDERED.

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568 SCRA 402 (2008)

THE PROVINCE OF NORTH COTABATO
VS
THE GRP PEACE PANEL ON ANCESTRAL DOMAIN
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process. While the
facts surrounding this controversy center on the armed conflict in Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing on all areas in the country where there has been a longstanding armed conflict. Yet again, the Court is tasked to perform a delicate balancing act. It must uncompromisingly
delineate the bounds within which the President may lawfully exercise her discretion, but it must do so in strict adherence to
the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their
respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOAAD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it
splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations. 1
The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners,
specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary
Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two
parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of
Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among
others, the commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with
sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue
advantage while the peace negotiations on the substantive agenda are on-going. 2
Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards
the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it
took control of the town hall of Kauswagan, Lanao del Norte. 3 In response, then President Joseph Estrada declared and
carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with
deep reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad
to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss
the matter and, eventually, decided to meet with the GRP. 4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the
parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the
GRP and the MILF. The MILF thereafter suspended all its military actions. 5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRPMILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following
aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the
Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the
Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the
Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the
parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of
the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many
incidence of violence between government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who
was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher
Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the
draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in an instrument - the MOA-AD which is
assailed principally by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain 7 and the Presidential Adviser on the
Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato 8 and Vice-Governor Emmanuel Piol filed a petition, docketed as G.R. No.
183591, for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.9 Invoking the right to information on matters of public concern, petitioners seek to compel respondents to
disclose and furnish them the complete and official copies of the MOA-AD including its attachments, and to prohibit the

Page 41 of 69

slated signing of the MOA-AD, pending the disclosure of the contents of the MOA-AD and the holding of a public consultation
thereon. Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional. 10
This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition 11 filed by
the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for
similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro
Homeland and/or Bangsamoro Juridical Entity and, in the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public
respondents and their agents to cease and desist from formally signing the MOA-AD. 13 The Court also required the Solicitor
General to submit to the Court and petitioners the official copy of the final draft of the MOA-AD, 14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying
that respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the
same, and that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.
The Province of Zamboanga del Norte, 17 Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon,
Rep. Cesar Jalosjos, and the members 18 of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition, 19 docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be
declared null and void and without operative effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition, 20 docketed as
G.R. No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being
unconstitutional and illegal. Petitioners herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention.
Petitioners-in-Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano,
the City of Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat 22 and Gov. Suharto Mangudadatu, the
Municipality of Linamon in Lanao del Norte, 23 Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang
Panlungsod member Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo
Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc.
(Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their respective Comments-inIntervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the
petitions, while some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review
the MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases. In
the succeeding exchange of pleadings, respondents' motion was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that consultation
has become fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on matters of public concern (1987 Constitution, Article III,
Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution, Article II, Sec.
28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or political
subdivision not recognized by law;
b) to revise or amend the Constitution and existing laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of Republic Act
No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of the
Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a justiciable
question; and
7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic of
the Philippines.24

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The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their
memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-inintervention against the MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an
overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four earlier agreements between the GRP and
MILF, but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement
on the Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President
Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the Autonomous Region in Muslim Mindanao
(ARMM)25 and the Indigenous Peoples Rights Act (IPRA), 26 and several international law instruments - the ILO Convention No.
169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of "compact rights entrenchment emanating from the regime of
dar-ul-mua'hada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature
of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was
the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws
held sway, while the second denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or
ineffective.27 This way of viewing the world, however, became more complex through the centuries as the Islamic world
became part of the international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations,
the classical division of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to
describe novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-mua'hada (land of compact) and darul-sulh (land of treaty) referred to countries which, though under a secular regime, maintained peaceful and cooperative
relations with Muslim States, having been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the
other hand, referred to countries which, though not bound by treaty with Muslim States, maintained freedom of religion for
Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the regime of dar-ul-mua'hada and dar-ul-sulh
simply refers to all other agreements between the MILF and the Philippine government - the Philippines being the land of
compact and peace agreement - that partake of the nature of a treaty device, "treaty" being broadly defined as "any solemn
agreement in writing that sets out understandings, obligations, and benefits for both parties which provides for a framework
that elaborates the principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles, Territory,
Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros.'" It defines "Bangsamoro people" as the natives or original inhabitants of
Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and
their descendants whether mixed or of full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes not only " Moros" as traditionally
understood even by Muslims,31 but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in has not been specifically
defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of which is vested exclusively in the
Bangsamoro people by virtue of their prior rights of occupation.32 Both parties to the MOA-AD acknowledge that ancestral
domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on
ancestral territoriality exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku
Ranaw. The sultanates were described as states or "karajaan/kadatuan" resembling a body politic endowed with all the
elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the
sultanates. As gathered, the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically
in the case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities
(pangampong) each ruled by datus and sultans, none of whom was supreme over the others. 35
The MOA-AD goes on to describe the Bangsamoro people as "the First Nation' with defined territory and with a system of
government having entered into treaties of amity and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known
as Indians. In Canada, each of these indigenous peoples is equally entitled to be called "First Nation," hence, all of them are
usually described collectively by the plural "First Nations." 36 To that extent, the MOA-AD, by identifying the Bangsamoro
people as "the First Nation" - suggesting its exclusive entitlement to that designation - departs from the Canadian usage of
the term.

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The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity" (BJE) to which it grants the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and
alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region.38
More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus constituting the following
areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates,
years apart from each other. Thus, Category A areas are to be subjected to a plebiscite not later than twelve (12) months
following the signing of the MOA-AD. 40 Category B areas, also called "Special Intervention Areas," on the other hand, are to
be subjected to a plebiscite twenty-five (25) years from the signing of a separate agreement - the Comprehensive
Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its " internal waters,"
defined as extending fifteen (15) kilometers from the coastline of the BJE area; 42 that the BJE shall also have "territorial
waters," which shall stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines (RP) south
east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the "Central Government"
(used interchangeably with RP) shall exercise joint jurisdiction, authority and management over all natural resources. 43
Notably, the jurisdiction over the internal waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the
BJE, in favor of the latter, through production sharing and economic cooperation agreement. 44 The activities which the Parties
are allowed to conduct on the territorial waters are enumerated, among which are the exploration and utilization of natural
resources, regulation of shipping and fishing activities, and the enforcement of police and safety measures. 45 There is no
similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and
shall have the option to establish trade missions in those countries. Such relationships and understandings, however, are not
to include aggression against the GRP. The BJE may also enter into environmental cooperation agreements. 46
The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is
also bound to "take necessary steps to ensure the BJE's participation in international meetings and events" like those of the
ASEAN and the specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of
incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral
domain.47
With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel,
mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE "as the party having control within
its territorial jurisdiction." This right carries the proviso that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period and under reasonable terms as may be agreed upon by both
Parties, assume or direct the operation of such resources.48
The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in
favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their
territorial and proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever
restoration is no longer possible, reparation is to be in such form as mutually determined by the Parties. 50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions,
Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land
tenure instruments granted by the Philippine Government, including those issued by the present ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the
Comprehensive Compact. This compact is to embody the "details for the effective enforcement" and "the mechanisms
and modalities for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that the participation of the
third party shall not in any way affect the status of the relationship between the Central Government and the BJE. 52
The
between
and the BJE

"associative"
the

Central

relationship
Government

The MOA-AD describes the relationship of the Central Government and the BJE as "associative," characterized by shared
authority and responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial,
and administrative institutions with defined powers and functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal framework" shall take effect upon
signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the nonderogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. As
will be discussed later, much of the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial
and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional
institutions, the details of which shall be discussed in the negotiation of the comprehensive compact.

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As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons
of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD
identifies the signatories as "the representatives of the Parties," meaning the GRP and MILF themselves, and not merely of
the negotiating panels.53 In addition, the signature page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin
Abd Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY" Ambassador Sayed Elmasry, Adviser to
Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in Southern Philippines,
and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin
Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and
barangays under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies. 54 Courts decline to issue advisory opinions or to
resolve hypothetical or feigned problems, or mere academic questions. 55 The limitation of the power of judicial review to
actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the
courts will not intrude into areas committed to the other branches of government. 56
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and jurisprudence. 57 The Court can decide the
constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial
determination.58
Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging it. 59 For a case to be considered
ripe for adjudication, it is a prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture, 60 and the petitioner must allege the existence of an immediate or threatened injury to itself
as a result of the challenged action.61 He must show that he has sustained or is immediately in danger of sustaining some
direct injury as a result of the act complained of. 62
The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions,
reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative enactments as well
as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be a proposal
that does not automatically create legally demandable rights and obligations until the list of operative acts required have
been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues based on
hypothetical or feigned constitutional problems or interests with no concrete bases. Considering the preliminary character of
the MOA-AD, there are no concrete acts that could possibly violate petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly, petitioners and
intervenors' perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)
The Solicitor General cites 63 the following provisions of the MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the Government stipulates to conduct and deliver, using
all possible legal measures, within twelve (12) months following the signing of the MOA-AD, a plebiscite covering the areas
as enumerated in the list and depicted in the map as Category A attached herein (the "Annex"). The Annex constitutes an
integral part of this framework agreement. Toward this end, the Parties shall endeavor to complete the negotiations and
resolve all outstanding issues on the Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing
of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to nonderogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. 64
(Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this
Court held:

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x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have
ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is seriously
alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the responsibility of
the courts.66
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held that the challenge to the
constitutionality of the school's policy allowing student-led prayers and speeches before games was ripe for adjudication,
even if no public prayer had yet been led under the policy, because the policy was being challenged as unconstitutional on
its face.68
That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States,69
decided in 1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of
the Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect
until January 1, 1996, because the parties agreed that New York had to take immediate action to avoid the provision's
consequences.70
The present petitions pray for Certiorari, 71 Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law
when any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or
in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction. 72 Mandamus is a
remedy granted by law 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 or enjoyment of a right or office to which such other is entitled. 73 Certiorari, Mandamus and Prohibition are
appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and
executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001. 75
The said executive order requires that "[t]he government's policy framework for peace, including the systematic approach
and the administrative structure for carrying out the comprehensive peace process x x x be governed by this Executive
Order." 76
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without
consulting the local government units or communities affected, nor informing them of the proceedings. As will be discussed
in greater detail later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that "any
provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their authority , by violating their duties
under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a branch of
government 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.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "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."78
Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary
question frequently arises as to this interest in the constitutional question raised. 79
When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the
statute or act complained of. 80 When the issue concerns a public right, it is sufficient that the petitioner is a citizen and has
an interest in the execution of the laws.81
For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an
illegal purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. 82 The
Court retains discretion whether or not to allow a taxpayer's suit. 83
In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a
derivative but nonetheless substantial injury that can be questioned by legislators. A member of the House of
Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.84
An organization may be granted standing to assert the rights of its members, 85 but the mere invocation by the Integrated
Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe
it with standing.86
As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the
other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law
authorizing intervention,88 such as a legal interest in the matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has
exercised, highlighted in the case of David v. Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the

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constitutional issues raised being of paramount public interest or of transcendental importance deserving the attention of
the Court in view of their seriousness, novelty and weight as precedents. 90 The Court's forbearing stance on locus standi on
issues involving constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of
government have kept themselves within the limits of the Constitution and the laws and have not abused the discretion
given them, has brushed aside technical rules of procedure. 91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte
(G.R. No. 183951), City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-inintervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the
direct and substantial injury that they, as LGUs, would suffer as their territories, whether in whole or in part, are to be
included in the intended domain of the BJE. These petitioners allege that they did not vote for their inclusion in the ARMM
which would be expanded to form the BJE territory. Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as
citizens and taxpayers for their failure to specify that they would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of
Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the transcendental importance of the
issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would
be expended for the conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone,
they can be given legal standing. Their allegation that the issues involved in these petitions are of "undeniable
transcendental importance" clothes them with added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to
enforce compliance by respondents of the public's constitutional right to be informed of the MOA-AD, as well as on a genuine
legal interest in the matter in litigation, or in the success or failure of either of the parties. He thus possesses the requisite
standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3 rd district of Davao City, a taxpayer and a
member of the Bagobo tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino
Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer,
they failed to allege any proper legal interest in the present petitions. Just the same, the Court exercises its discretion to
relax the procedural technicality on locus standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice
and the attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a nongovernment organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the case may be, in the
resolution of the petitions concerning the MOA-AD, and prays for the denial of the petitions on the grounds therein stated.
Such legal interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by
petitioners and the subsequent pronouncement of the Executive Secretary that "[n]o matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA." 92
In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP
Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle not being a magical formula that
automatically dissuades courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a)
there is a grave violation of the Constitution; 95 (b) the situation is of exceptional character and paramount public interest is
involved;96 (c) the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and
the public;97 and (d) the case is capable of repetition yet evading review. 98
Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained
of by the defendant or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not
automatically deprive the tribunal of power to hear and determine the case and does not render the case moot especially
when the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation. 99
The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds
cited above in David are just as applicable in the present cases as they were, not only in David, but also in Province of
Batangas v. Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the merits, supervening events
that would ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP
Peace Panel did not moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due
to the Court's issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of consensus points," especially given
its nomenclature, the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the farreaching Constitutional implications of these "consensus points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and
effect necessary changes to the existing legal framework for certain provisions of the MOA-AD to take effect .
Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but to other on-going and
future negotiations and agreements necessary for its realization. The petitions have not, therefore, been rendered moot and
academic simply by the public disclosure of the MOA-AD, 102 the manifestation that it will not be signed as well as the
disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest

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There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the
country's territory and the wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject
to further legal enactments including possible Constitutional amendments more than ever provides impetus
for the Court to formulate controlling principles to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on issues which no longer legitimately
constitute an actual case or controversy [as this] will do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled
was a stand-alone government procurement contract for a national broadband network involving a one-time contractual
relation between two parties-the government and a private foreign corporation. As the issues therein involved specific
government procurement policies and standard principles on contracts, the majority opinion in Suplico found nothing
exceptional therein, the factual circumstances being peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli
Agreement 2001. The MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such
component to be undertaken following the implementation of the Security Aspect in August 2001 and the Humanitarian,
Rehabilitation and Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that
"no matter what the Supreme Court ultimately decides[,] the government will not sign the MOA[-AD]," mootness will not set
in in light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain
Aspect of the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because that is the only way that long-lasting peace can be assured," it
is minded to render a decision on the merits in the present petitions to formulate controlling principles to guide the
bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding
Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v.
Reyes104 in which he stated that the doctrine of "capable of repetition yet evading review" can override mootness, "provided
the party raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their
issuance." They contend that the Court must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No.
183893 (City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as
it has far reaching implications and raises questions that need to be resolved. 105 At all events, the Court has jurisdiction over
most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what
it had done in a number of landmark cases. 106 There is a reasonable expectation that petitioners, particularly the Provinces of
North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality
of Linamon, will again be subjected to the same problem in the future as respondents' actions are capable of repetition, in
another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of
August 7, 2008, provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one
relating to the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when
they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7,
Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and
to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to examine and inspect public records,
a right which was eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been
recognized as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to public records is predicated on the right
of the people to acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a
legitimate interest in matters of social and political significance.

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x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic perception by the public of the nation's problems, nor a meaningful
democratic decision-making if they are denied access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times. As has been aptly observed: "Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the
flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope with the exigencies of their time, access to
information of general interest aids the people in democratic decision-making by giving them a better perspective of the
vital issues confronting the nation 112 so that they may be able to criticize and participate in the affairs of the government in
a responsible, reasonable and effective manner. It is by ensuring an unfettered and uninhibited exchange of ideas among a
well-informed public that a government remains responsive to the changes desired by the people. 113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public concern 114 faces no serious challenge. In
fact, respondents admit that the MOA-AD is indeed of public concern.115 In previous cases, the Court found that the regularity
of real estate transactions entered in the Register of Deeds, 116 the need for adequate notice to the public of the various
laws,117 the civil service eligibility of a public employee, 118 the proper management of GSIS funds allegedly used to grant
loans to public officials, 119 the recovery of the Marcoses' alleged ill-gotten wealth, 120 and the identity of party-list nominees, 121
among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public
concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of
the public at large.
Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of
the contract. In not distinguishing as to the executory nature or commercial character of agreements, the Court has
categorically ruled:
x x x [T]he right to information "contemplates inclusion of negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too
late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous
to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of
public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent
the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed "policy of full disclosure of all its transactions involving public interest." 122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights is the policy of public disclosure
under Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. 124
The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on
matters of public concern found in the Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by following
such policy.126 These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at
all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have to
be enacted by Congress, Mr. Presiding Officer. 128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman correctly as having
said that this is not a self-executing provision? It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner Regalado, so
that the safeguards on national interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide for
reasonable safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of
the conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved,
revoking this principle, which is inconsistent with this policy. 129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress
cannot revoke this principle, it is merely directed to provide for "reasonable safeguards." The complete and effective
exercise of the right to information necessitates that its complementary provision on public disclosure derive the same selfexecutory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader 130 right to information on
matters of public concern is already enforceable while the correlative duty of the State to disclose its transactions involving
public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.

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An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's will. 131 Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the government
provide feedback mechanisms so that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of
the government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a message
and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?
I think when we talk about the feedback network, we are not talking about public officials but also network of
private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more
credence or credibility on the private network of volunteers and voluntary community-based organizations. So I do not think
we are afraid that there will be another OMA in the making.132 (Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is evident in the "marching orders" to
respondents. The mechanics for the duty to disclose information and to conduct public consultation regarding the peace
agenda and process is manifestly provided by E.O. No. 3. 133 The preambulatory clause of E.O. No. 3 declares that there is a
need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the
people's participation.
One of the three underlying principles of the comprehensive peace process is that it "should be community-based, reflecting
the sentiments, values and principles important to all Filipinos" and "shall be defined not by the government alone, nor by
the different contending groups only, but by all Filipinos as one community." 134 Included as a component of the
comprehensive peace process is consensus-building and empowerment for peace, which includes "continuing consultations
on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of
people's participation in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate "continuing" consultations,
contrary to respondents' position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to "[c]onduct regular dialogues
with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as
well as to render appropriate and timely reports on the progress of the comprehensive peace process." 137 E.O. No. 3
mandates the establishment of the NPF to be "the principal forum for the PAPP to consult with and seek advi[c]e from the
peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation
of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-building on peace
agenda and initiatives." 138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace agenda, as a corollary to the
constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive
process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority , and
amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however,
require him to comply with the law and discharge the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort in justifying the denial of
petitioners' right to be consulted. Respondents' stance manifests the manner by which they treat the salient provisions of
E.O. No. 3 on people's participation. Such disregard of the express mandate of the President is not much different from
superficial conduct toward token provisos that border on classic lip service. 140 It illustrates a gross evasion of positive duty
and a virtual refusal to perform the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument
defies sound reason when contrasted with E.O. No. 3's explicit provisions on continuing consultation and dialogue on both
national and local levels. The executive order even recognizes the exercise of the public's right even before the GRP
makes its official recommendations or before the government proffers its definite propositions.141 It bear emphasis that E.O.
No. 3 seeks to elicit relevant advice, information, comments and recommendations from the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of
the official copies of the final draft of the MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution,
without a prayer for the document's disclosure in camera, or without a manifestation that it was complying therewith ex
abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State policy to "require all national
agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions"142 is well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned
is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. 143 (Italics and
underscoring supplied)

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In Lina, Jr. v. Hon. Pao,144 the Court held that the above-stated policy and above-quoted provision of the LGU apply only to
national programs or projects which are to be implemented in a particular local community. Among the programs and
projects covered are those that are critical to the environment and human ecology including those that may call for the
eviction of a particular group of people residing in the locality where these will be implemented.145 The MOA-AD is one
peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro
people,146 which could pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein
by petitioner Lopez and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate
fully at all levels of decision-making in matters which may affect their rights, lives and destinies. 147 The MOA-AD, an
instrument recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said
Act,148 which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise. The recognition of the ancestral domain is the
raison d'etre of the MOA-AD, without which all other stipulations or "consensus points" necessarily must fail. In proceeding to
make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the
MOA-AD, respondents clearly transcended the boundaries of their authority. As it seems, even the heart of the MOAAD is still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity of
all provisions requiring changes to the legal framework, such clause is itself invalid, as will be discussed in the following
section.
Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public
cognizance. This has to be so if the country is to remain democratic, with sovereignty residing in the people and all
government authority emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the
present Constitution and laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD
itself recognizes the need to amend the existing legal framework to render effective at least some of its provisions.
Respondents, nonetheless, counter that the MOA-AD is free of any legal infirmity because any provisions therein which are
inconsistent with the present legal framework will not be effective until the necessary changes to that framework are made.
The validity of this argument will be considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE exceed those granted to any local government under present laws, and even go
beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the BJE,
however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOAAD, namely, the international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept,
indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE.
It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship
between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative
characterized by shared authority and responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD by its inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of
association may be brought to bear in understanding the use of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one
state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its
international status as a state. Free associations represent a middle ground between integration and
independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part
of the U.S.-administered Trust Territory of the Pacific Islands, 151 are associated states of the U.S. pursuant to a Compact of
Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they
issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed
by the UN Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct
foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources,
trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is
obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards
as relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is understood as an international
association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's
national constitution, and each party may terminate the association consistent with the right of independence. It has been

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said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of
free association is actually based on an underlying status of independence. 152
In international practice, the "associated state" arrangement has usually been used as a transitional device of former
colonies on their way to full independence. Examples of states that have passed through the status of associated states as a
transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the
BJE's right to participate in Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming part of the
ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an
associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as having an "associative" relationship
with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution
to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a
transitory status that aims to prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.
The
BJE
is
entity
than
recognized in the Constitution

a
the

far

more
autonomous

powerful
region

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention,154 namely, a permanent population, a defined territory, a government,
and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit
animating it - which has betrayed itself by its use of the concept of association - runs counter to the national
sovereignty and territorial integrity of the Republic.
The defining concept underlying the relationship between the national government and the BJE being itself
contrary to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on
the formation and powers of the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region shall be effective when
approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous
region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term
"autonomous region" in the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under
paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the
municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan,
Pantar, Tagoloan and Tangkal - are automatically part of the BJE without need of another plebiscite, in contrast to the areas
under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the abovementioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary
under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE.
The
comply
the Constitution

with

MOA-AD,

Article

moreover,
X,

Section

would
20

of

not

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic
act of autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;

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(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region .
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment
that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD
must, itself, comply with other provisions of the Constitution. It would not do, for instance, to merely pass legislation vesting
the BJE with treaty-making power in order to accommodate paragraph 4 of the strand on RESOURCES which states: "The BJE
is free to enter into any economic cooperation and trade relations with foreign countries: provided, however, that such
relationships and understandings do not include aggression against the Government of the Republic of the Philippines x x x."
Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is regarded as the sole organ and authority in
external relations and is the country's sole representative with foreign nations. As the chief architect of foreign
policy, the President acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested
with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treatymaking, the President has the sole authority to negotiate with other states. (Emphasis and underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to
be effected. That constitutional provision states: "The State recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and development." (Underscoring supplied) An associative arrangement
does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE
and the national government, the act of placing a portion of Philippine territory in a status which, in international practice,
has generally been a preparation for independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with prevailing statutory law,
among which are R.A. No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of "Bangsamoro
people" used in the MOA-AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted
as "Bangsamoros". The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and
its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants
whether mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which,
rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly
distinguishes between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of
the national community; and
(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their
own social, economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The
MOA-AD's manner of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure.
By paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may be initiated by the NCIP with the consent of
the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and
other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such
ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:

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1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned with
other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces and the
like; and
10) Write-ups of names and places derived from the native dialect of the community.
e) Preparation of Maps. - On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains
Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural
features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the preliminary census and a report of investigation,
shall be prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in the native language of the ICCs/IPs
concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be
posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation
once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from
date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a
valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not
available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains
Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of ancestral
domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in coming up with a
preliminary resolution of the conflict, without prejudice to its full adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the generally accepted principles of
international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,158 held that the Universal Declaration of
Human Rights is part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian
descent whose deportation order had not been executed even after two years. Similarly, the Court in Agustin v. Edu159
applied the aforesaid constitutional provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples," understood not merely as the entire
population of a State but also a portion thereof. In considering the question of whether the people of Quebec had a right to
unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC 160 had occasion to
acknowledge that "the right of a people to self-determination is now so widely recognized in international conventions that
the principle has acquired a status beyond convention' and is considered a general principle of international law."
Among the conventions referred to are the International Covenant on Civil and Political Rights 161 and the International
Covenant on Economic, Social and Cultural Rights 162 which state, in Article 1 of both covenants, that all peoples, by virtue of
the right of self-determination, "freely determine their political status and freely pursue their economic, social, and cultural
development."
The people's right to self-determination should not, however, be understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-determination of a people is normally
fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural
development within the framework of an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined circumstances. x x x
External self-determination can be defined as in the following statement from the Declaration on Friendly
Relations, supra, as

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The establishment of a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely determined by a people constitute
modes of implementing the right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved within a framework of respect for the
territorial integrity of existing states. The various international documents that support the existence of a people's right
to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be
sufficiently limited to prevent threats to an existing state's territorial integrity or the stability of relations between sovereign
states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise,
namely, where a people is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and
- less definitely but asserted by a number of commentators - is blocked from the meaningful exercise of its right to internal
self-determination. The Court ultimately held that the population of Quebec had no right to secession, as the same is not
under colonial rule or foreign domination, nor is it being deprived of the freedom to make political choices and pursue
economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and judicial
institutions within Canada, even occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF
JURISTS ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION. 163 There, Sweden presented to the Council of the
League of Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by
plebiscite if the archipelago should remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The
Council, before resolving the question, appointed an International Committee composed of three jurists to submit an opinion
on the preliminary issue of whether the dispute should, based on international law, be entirely left to the domestic
jurisdiction of Finland. The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is
essentially an attribute of the sovereignty of every State. Positive International Law does not recognize the
right of national groups, as such, to separate themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by
plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such a question, under normal conditions therefore,
bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned.
Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating
difficulties and a lack of stability which would not only be contrary to the very idea embodied in term "State," but would also
endanger the interests of the international community. If this right is not possessed by a large or small section of a nation,
neither can it be held by the State to which the national group wishes to be attached, nor by any other State. (Emphasis and
underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international
law to the domestic jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground
for departing from the general rule, however, was a very narrow one, namely, the Aaland Islands agitation originated at a
time when Finland was undergoing drastic political transformation. The internal situation of Finland was, according to the
Committee, so abnormal that, for a considerable time, the conditions required for the formation of a sovereign State did not
exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish national government was disputed by a
large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from carrying out its
duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was
not, during the relevant time period, a "definitively constituted" sovereign state. The Committee, therefore, found that
Finland did not possess the right to withhold from a portion of its population the option to separate itself - a right which
sovereign nations generally have with respect to their own populations.
Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as
international, regional, and state practices, to refer to groups with distinct cultures, histories, and connections to land
(spiritual and otherwise) that have been forcibly incorporated into a larger governing society. These groups are regarded as
"indigenous" since they are the living descendants of pre-invasion inhabitants of lands now dominated by others. Otherwise
stated, indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler
societies born of the forces of empire and conquest. 164 Examples of groups who have been regarded as indigenous peoples
are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do not have a general right to
independence or secession from those states under international law, 165 but they do have rights amounting to what was
discussed above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the
Rights of Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the
Philippines being included among those in favor, and the four voting against being Australia, Canada, New Zealand, and the
U.S. The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the
right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status
and freely pursue their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in
matters relating to their internal and local affairs, as well as ways and means for financing their autonomous
functions.
Article 5

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Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural
institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life
of the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination." 166 The extent of self-determination provided for in the UN DRIP is more
particularly defined in its subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their
cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their
rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against
them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions,
including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health
and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders,
women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally
owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess
by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise
acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public
interest or otherwise freely agreed with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and
in particular through their representative institutions, prior to using their lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their
lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or
territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water
or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall
be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their successors and to have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in
treaties, agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative
measures, to achieve the ends of this Declaration.

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Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary
international law - a question which the Court need not definitively resolve here - the obligations enumerated therein do not
strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and
powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for
flexibility in its application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and
internal security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples
against acts like the forced dispossession of their lands - a function that is normally performed by police officers. If the
protection of a right so essential to indigenous people's identity is acknowledged to be the responsibility of the State, then
surely the protection of rights less significant to them as such peoples would also be the duty of States. Nor is there in the
UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it
upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant
indigenous peoples the near-independent status of an associated state. All the rights recognized in that document are
qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage
in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it
would not suffice to uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the
Constitution and the laws as presently worded. Respondents proffer, however, that the signing of the MOA-AD alone
would not have entailed any violation of law or grave abuse of discretion on their part, precisely because it stipulates that
the provisions thereof inconsistent with the laws shall not take effect until these laws are amended. They cite paragraph 7 of
the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be spelt out in
the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non
derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected. While the word "Constitution" is not mentioned in the
provision now under consideration or anywhere else in the MOA-AD, the term "legal framework" is certainly
broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the
provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated
the Memorandum of Instructions From The President dated March 1, 2001, which states that the "negotiations shall be
conducted in accordance with x x x the principles of the sovereignty and territorial integrity of the Republic of the
Philippines." (Emphasis supplied) Establishing an associative relationship between the BJE and the Central Government is, for
the reasons already discussed, a preparation for independence, or worse, an implicit acknowledgment of an independent
status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is
invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which
states that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be
"appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with
rebel groups." These negotiating panels are to report to the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the
MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the
components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths to Peace," is the pursuit
of social, economic, and political reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of
E.O. No. 3, which reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive peace process comprise the processes known as
the "Paths to Peace". These component processes are interrelated and not mutually exclusive, and must therefore be
pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous implementation of
various policies, reforms, programs and projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of
E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to "think outside the box," so to
speak. Hence, they negotiated and were set on signing the MOA-AD that included various social, economic, and political
reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new
legislation and constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here, because it must be asked whether the
President herself may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).

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The President cannot delegate a power that she herself does not possess. May the President, in the course of peace
negotiations, agree to pursue reforms that would require new legislation and constitutional amendments, or should the
reforms be restricted only to those solutions which the present laws allow? The answer to this question requires a discussion
of the extent of the President's power to conduct peace negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the
Constitution does not mean that she has no such authority. In Sanlakas v. Executive Secretary,168 in issue was the authority
of the President to declare a state of rebellion - an authority which is not expressly provided for in the Constitution. The Court
held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7
margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's
. . . unstated residual powers which are implied from the grant of executive power and which are necessary for
her to comply with her duties under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to
limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of
specific powers of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the
general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as
Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence. 169
As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely
attained by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the
nation's constitutional structure is required. The observations of Dr. Kirsti Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict peacebuilding mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without modification of
the political environment, even where state-building is undertaken through technical electoral assistance and institution- or
capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from conflict return to
conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an important role in the political and governance
transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a state and a road
map on how to get there. The constitution can be partly a peace agreement and partly a framework setting up the rules by
which the new democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that
the typical way that peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking
them to new constitutional structures addressing governance, elections, and legal and human rights institutions. 171
In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less
than the framers of the Constitution. Behind the provisions of the Constitution on autonomous regions 172 is the framers'
intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the
MNLF, signed by then Undersecretary of National Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to ask them if they
are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very
well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we
have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right that certain definite
steps have been taken to implement the provisions of the Tripoli Agreement with respect to an autonomous
region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to
the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement,
and now by state policy. 173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters,
been partly successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the
Government and the MILF. If the President is to be expected to find means for bringing this conflict to an end and to achieve
lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace negotiations, solutions that
may require changes to the Constitution for their implementation. Being uniquely vested with the power to conduct peace
negotiations with rebel groups, the President is in a singular position to know the precise nature of their grievances which, if
resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be
prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant
to the legal procedures for constitutional amendment and revision. In particular, Congress would have the option, pursuant
to Article XVII, Sections 1 and 3 of the Constitution, to propose the recommended amendments or revision to the people, call
a constitutional convention, or submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative and referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the interim National Assembly which was the body vested by the

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1973 Constitution with the power to propose such amendments. President Marcos, it will be recalled, never convened the
interim National Assembly. The majority upheld the President's act, holding that "the urges of absolute necessity" compelled
the President as the agent of the people to act as he did, there being no interim National Assembly to propose constitutional
amendments. Against this ruling, Justices Teehankee and Muoz Palma vigorously dissented. The Court's concern at present,
however, is not with regard to the point on which it was then divided in that controversial case, but on that which was not
disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the President may directly submit
proposed constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the
President's action along with the majority had the President convened the interim National Assembly and coursed his
proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted
to but has been withheld from the President or Prime Minister, it follows that the President's questioned decrees proposing
and submitting constitutional amendments directly to the people (without the intervention of the interim National
Assembly in whom the power is expressly vested) are devoid of constitutional and legal basis." 176 (Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the President - in the course of conducting peace
negotiations - may validly consider implementing even those policies that require changes to the Constitution, but she may
not unilaterally implement them without the intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a
plebiscite similar to what President Marcos did in Sanidad, but for their independent consideration of whether these
recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the President's suggestions to the people, for any
further involvement in the process of initiative by the Chief Executive may vitiate its character as a genuine "people's
initiative." The only initiative recognized by the Constitution is that which truly proceeds from the people. As the Court stated
in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the people's voice.' However, the Lambino Group unabashedly states in
ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ULAP maintains its unqualified
support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group
thus admits that their people's' initiative is an unqualified support to the agenda' of the incumbent President to
change the Constitution. This forewarns the Court to be wary of incantations of people's voice' or sovereign will' in the
present initiative."
It will be observed that the President has authority, as stated in her oath of office, 178 only to preserve and defend the
Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to
recommend proposed amendments or revision. As long as she limits herself to recommending these changes and submits to
the proper procedure for constitutional amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.
The foregoing discussion focused on the President's authority to propose constitutional amendments, since her authority to
propose new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose
new legislation. One of the more prominent instances the practice is usually done is in the yearly State of the Nation Address
of the President to Congress. Moreover, the annual general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a proposal for new legislation coming from the
President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed standards
Given the limited nature of the President's authority to propose constitutional amendments, she cannot guarantee to any
third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite . The most
she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers
are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the
present Constitution and laws "shall come into force upon signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework." This stipulation does not bear the marks of a suspensive condition - defined in
civil law as a future and uncertain event - but of a term. It is not a question of whether the necessary changes to the legal
framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the
paragraph goes on to state that the contemplated changes shall be "with due regard to non derogation of prior agreements
and within the stipulated timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework
contemplated in the MOA-AD - which changes would include constitutional amendments, as discussed earlier. It bears noting
that,
By the time these changes are put in place, the MOA-AD itself would be counted among the "prior
agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the implementing details for these "consensus
points" and, notably, the deadline for effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the President's authority to
propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of
the Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be
struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision appearing in the 1996 final peace
agreement between the MNLF and the GRP is most instructive.

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As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a
three-year transitional period involving the putting up of new administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the Southern Philippines Council for Peace and Development
(SPCPD), while Phase II covered the establishment of the new regional autonomous government through amendment or
repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region
envisioned by the parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial
difference between the two agreements. While the MOA-AD virtually guarantees that the "necessary changes to the
legal framework" will be put in place, the GRP-MNLF final peace agreement states thus: "Accordingly, these provisions
[on Phase II] shall be recommended by the GRP to Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of
the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine government to the international community
that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily
lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An
examination of the prevailing principles in international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord Amnesty 180 (the Lom Accord case) of the Special Court of Sierra
Leone is enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra
Leone and the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were non-contracting signatories to the agreement, among which
were the Government of the Togolese Republic, the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government,
another agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an international court, was to try persons who bore the greatest
responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of
Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision for the full pardon of the members of the RUF with respect to
anything done by them in pursuit of their objectives as members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord created an internationally binding obligation not to
prosecute the beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and that it can only create binding obligations and rights between the
parties in municipal law, not in international law. Hence, the Special Court held, it is ineffective in depriving an international
court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue
with some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact
that in addition to the parties to the conflict, the document formalizing the settlement is signed by foreign
heads of state or their representatives and representatives of international organizations, means the
agreement of the parties is internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement, or
persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict, are not
contracting parties and who do not claim any obligation from the contracting parties or incur any obligation from the
settlement.
41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no
status of statehood and is to all intents and purposes a faction within the state. The non-contracting
signatories of the Lom Agreement were moral guarantors of the principle that, in the terms of Article XXXIV
of the Agreement, "this peace agreement is implemented with integrity and in good faith by both parties". The
moral guarantors assumed no legal obligation. It is recalled that the UN by its representative appended, presumably
for avoidance of doubt, an understanding of the extent of the agreement to be implemented as not including certain
international crimes.
42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so
that a breach of its terms will be a breach determined under international law which will also provide principle means of
enforcement. The Lom Agreement created neither rights nor obligations capable of being regulated by
international law. An agreement such as the Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of peace that the international community acting
through the Security Council may take note of. That, however, will not convert it to an international agreement
which creates an obligation enforceable in international, as distinguished from municipal, law. A breach of the
terms of such a peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with possible
legal consequences arising from the new situation of conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the breach. A peace agreement which settles an internal armed
conflict cannot be ascribed the same status as one which settles an international armed conflict which,
essentially, must be between two or more warring States. The Lom Agreement cannot be characterised as an
international instrument. x x x" (Emphasis, italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties
to the Agreement would not have sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State,
binding under international law, that it would comply with all the stipulations stated therein, with the result that it would

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have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is
Australia v. France,181 also known as the Nuclear Tests Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's nuclear tests in the South Pacific. France
refused to appear in the case, but public statements from its President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the
case.182 Those statements, the ICJ held, amounted to a legal undertaking addressed to the international community, which
required no acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in
issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the
intention of the State making the declaration that it should become bound according to its terms, that
intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally
required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly,
and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply
or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent
with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in
relation to a particular matter with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive
interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government
conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It
was bound to assume that other States might take note of these statements and rely on their being effective.
The validity of these statements and their legal consequences must be considered within the general
framework of the security of international intercourse, and the confidence and trust which are so essential in the
relations among States. It is from the actual substance of these statements, and from the circumstances
attending their making, that the legal implications of the unilateral act must be deduced. The objects of these
statements are clear and they were addressed to the international community as a whole, and the Court holds
that they constitute an undertaking possessing legal effect. The Court considers *270 that the President of the
Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the international community
to which his words were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a
unilateral declaration only when the following conditions are present: the statements were clearly addressed to the
international community, the state intended to be bound to that community by its statements, and that not to give legal
effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations
arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina
Faso v. Mali,183 also known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a foreign press agency, that Mali would abide by the decision to
be issued by a commission of the Organization of African Unity on a frontier dispute then pending between Mali and Burkina
Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was not a unilateral act with legal
implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French
declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances
in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant
States were not the only ones concerned at the possible continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53).
In the particular circumstances of those cases, the French Government could not express an intention to be
bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a
negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct
was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder
the Parties from manifesting an intention to accept the binding character of the conclusions of the
Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis
of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no
grounds to interpret the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications
in regard to the present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being
bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and
international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they
participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact
that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not
be detrimental to the security of international intercourse - to the trust and confidence essential in the relations among
States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already
discussed, the Mali President's statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there
was also nothing to hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that
intention by formal agreement. Here, that formal agreement would have come about by the inclusion in the MOA-AD of a

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clear commitment to be legally bound to the international community, not just the MILF, and by an equally clear indication
that the signatures of the participating states-representatives would constitute an acceptance of that commitment. Entering
into such a formal agreement would not have resulted in a loss of face for the Philippine government before the international
community, which was one of the difficulties that prevented the French Government from entering into a formal agreement
with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention
to be bound to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration
under international law.
The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents'
almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute
grave abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem,
the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign
Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through
the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through
an undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the
sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities
affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their
authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any
branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the
Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping
with the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace
Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the
public; and (d) the fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace
signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one
drawn up that could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in
providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid
symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II
of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28
recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the
right to information necessitates that its complementary provision on public disclosure derive the same self-executory
nature, subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In
declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract,
jurisprudence finds no distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the
government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public
consultation was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the exercise of the people's right to be
consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a
principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct
regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and
concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations
before any project or program critical to the environment and human ecology including those that may call for the eviction of
a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and
drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior
informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the
Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents
effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for
judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the
pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive

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process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts
to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty
and a virtual refusal to perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very
concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its way
to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will
not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOAAD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover,
as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee.
Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive
can ensure the outcome of the amendment process is through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under
international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders
the MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and
hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is
declared contrary to law and the Constitution.
SO ORDERED.

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G.R. No. 94010 December 2, 1991

EVARDONE VS COMELEC

PADILLA, J.:p

These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by the respondent
Commission on Elections (COMELEC) dated 20 June 1990 which approved the recommendation of the Election Registrar of
Sulat, Eastern Samar to hold and conduct the signing of the petition for recall of the incumbent Mayor of Sulat, Eastern
Samar, on 14 July 1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a restraining order and/or writ of
preliminary injunction to restrain the holding of the signing of the petition for recall on 14 July 1990.
G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No. 90-0660 of the
respondent COMELEC nullifying the signing process held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor
Evardone of said municipality and en banc Resolution No. 90-0777 denying petitioners' motion for reconsideration, on the
basis of the temporary restraining order issued by this Court on 12 July 1990 in G.R. No. 94010.
Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat, Eastern Samar, having been
elected to the position during the 1988 local elections. He assumed office immediately after proclamation.
On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival (hereinafter referred to as Apelado, et al.)
filed a petition for the recall of Evardone with the Office of the Local Election Registrar, Municipality of Sulat.
In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557, approving the recommendation
of Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on 14 July 1990 the signing of the petition for
recall against incumbent Mayor Evardone of the said Municipality.
On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for immediate issuance of
restraining order and/or writ of preliminary injunction, which was docketed as G.R. No. 94010.
On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective immediately and continuing until
further orders from the Court, ordering the respondents to cease and desist from holding the signing of the petition for recall
on 14 July 1990, pursuant to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.
On the same day (12 July 1990), the notice of TRO was received by the Central Office of the respondent COMELEC. But it was
only on 15 July 1990 that the field agent of the respondent COMELEC received the telegraphic notice of the TROa day after
the completion of the signing process sought to be temporarily stopped by the TRO.
In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the signing process held in
Sulat, Eastern Samar for being violative of the order (the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a motion
for reconsideration and on 29 August 1990, the respondent COMELEC denied said motion holding that:
. . . The critical date to consider is the service or notice of the Restraining Order on 12 July 1990 upon the
principal i.e. the Commission on Election, and not upon its agent in the field. 1
Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc
Resolution No. 90-0660 of respondent COMELEC.
In G.R. No. 94010, Evardone contends that:
I. The COMELEC committed grave abuse of discretion in approving the recommendation of the Election
Registrar of Sulat, Eastern Samar to hold the signing of the petition for recall without giving petitioner his
day in court.
II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess of jurisdiction
in promulgating Resolution No. 2272 on May 22, 1990 which is null and void for being unconstitutional. 2
In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the petition for recall held on 14
July 1990 has been rendered nugatory by the TRO issued by this court in G.R. No. 94010 dated 12 July 1990 but received by
the COMELEC field agent only on 15 July 1990.
The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272 promulgated by respondent
COMELEC on 23 May 1990 by virtue of its powers under the Constitution and Batas Pambansa Blg. 337 (Local Government
Code). The resolution embodies the general rules and regulations on the recall of elective provincial, city and municipal
officials.
Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg. 337 in favor of one to be
enacted by Congress. Said Section 3 provides:
Sec. 3. The Congress shall enact a local government code shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units their
powers, responsibilities and resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties local officials, and all other matters relating to the
organization operation of the local units.
Since there was, during the period material to this case, no local government code enacted by Congress after the
effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of elected government
officials, Evardone contends that there is no basis for COMELEC Resolution No. 2272 and that the recall proceedings
in the case at bar is premature.
The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:

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The constitutional provision does not refer only to a local government code which is in futurum but also in
esse. It merely sets forth the guidelines which Congress will consider in amending the provisions of the
present Local Government Code. Pending the enactment of the amendatory law, the existing Local
Government Code remains operative. The adoption of the 1987 Constitution did not abrogate the
provisions of BP No. 337, unless a certain provision thereof is clearly irreconciliable with the provisions of
the 1987 Constitution. In this case, Sections 54 to 59 of Batas Pambansa No. 337 are not inconsistent with
the provisions of the Constitution. Hence, they are operative. 3
We find the contention of the respondent COMELEC meritorious.
Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not inconsistent with the 1987
Constitution shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in
Sec. 534, Title Four of said Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and therefore
the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case. Prior to the enactment of the
new Local Government Code, the effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the 1986
Constitutional Commission. Thus
MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the report of the
Committee on Amendments and Transitory Provisions, the former Local Government Code, which is Batas
Pambansa Blg. 337 shall continue to be effective until repealed by the Congress of the Philippines. 4
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59
expressly authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the
exercise of such powers, promulgate the necessary rules and regulations.
The Election Code contains no special provisions on the manner of conducting elections for the recall of a local official. Any
such election shall be conducted in the manner and under the rules on special elections, unless otherwise provided by law or
rule of the COMELEC. 5 Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated Resolution
No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional. Consequently,
the respondent COMELEC had the authority to approve the petition for recall and set the date for the signing of said petition.
The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the signing process of the
petition for recall held pursuant to Resolution No. 2272.
In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et al., 6 this Court held:
. . . What is sought in this suit is to enjoin respondents particularly respondent Commission from
implementing Batas Pambansa Blg. 86, specifically "from conducting, holding and undertaking the
plebiscite provided for in said act." The petition was filed on December 5, 1980. There was a plea for a
restraining order, but Proclamation No. 2034 fixing the date for such plebiscite on December 6, 1980 had
been issued as far as back as November 11, 1980. Due this delay in to this suit, attributable solely to
petitioners, there was no time even to consider such a plea. The plebiscite was duly held. The certificate of
canvass and proclamation of the result disclosed that out of 2,409 total votes cast in such plebiscite, 2,368
votes were cast in favor of the creation of the new municipality, which, according to the statute, will be
named municipality of Aguinaldo. There were only 40 votes cast against. As a result, such municipality was
created. There is no turning back the clock. The moot and academic character of this petition is thus
apparent.
In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, et al. on or about 21
February 1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in following up and determining the
outcome of such notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know about the
Resolution of respondent COMELEC setting the signing of the petition for recall on 14 July 1990. But despite his urgent prayer
for the issuance of a TRO, Evardone filed the petition for prohibition only on 10 July 1990.
Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just the same on the
scheduled date through no fault of the respondent COMELEC and Apelado, et al. The signing process was undertaken by the
constituents of the Municipality of Sulat and its Election Registrar in good faith and without knowledge of the TRO earlier
issued by this Court. As attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern
Samar or about 34% signed the petition for recall. As held in Parades vs. Executive Secretary 7 there is no turning back the
clock.
The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage. It
is based on the theory that the electorate must maintain a direct and elastic control over public
functionaries. It is also predicated upon the idea that a public office is "burdened" with public interests and
that the representatives of the people holding public offices are simply agents or servants of the people
with definite powers and specific duties to perform and to follow if they wish to remain in their respective
offices. 8
Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political question.
It belongs to the realm of politics where only the people are the judge. 9 "Loss of confidence is the formal withdrawal by an
electorate of their trust in a person's ability to discharge his office previously bestowed on him by the same electorate. 10
The constituents have made a judgment and their will to recall the incumbent mayor (Evardone) has already been
ascertained and must be afforded the highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern
Samar, for the recall of Mayor Felipe P. Evardone of said municipality is valid and has legal effect.
However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P. Blg, 337, which
states:
Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held. . . .
(2) No recall shall take place within two years from the date of the official's assumption of office or one
year immediately preceding a regular local election.

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The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or more specifically, as
provided for in Article XVIII, Sec. 5 on the second Monday of May, 1992. 11 Thus, to hold an election on recall
approximately seven (7) months before the regular local election will be violative of the above provisions of the applicable
Local Government Code (B.P. Blg. 337)
ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.
SO ORDERED.

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G.R. No. 112243 February 23, 1995

SECRETARY OF HEALTH VS CA
BIDIN, J.:
Petitioners seek the reversal of respondent court's decision dated July 21, 1993 dismissing petitioners' petition for certiorari
and prohibition in CA-G.R No. 28361 assailing the decision and orders of respondent Presiding Judge the Regional Trial Court,
Branch 1 of Tuguegarao Cagayan restraining petitioners from enforcing the order of preventive suspension issued against
respondent Fe Sibbaluca, former Administrative Officer of the Provincial Health Office of Cagayan.
The antecedent facts of the case as found by respondent court are as follows:
This petition for certiorari and prohibition filed by petitioners stemmed from the administrative complaint
filed against private respondent Fe Sibbaluca, the Administrative Officer III of the Provincial Health Office of
Cagayan, for grave misconduct, dishonesty; etc. The case was docketed as Administrative Case No.
000023 S. 1991 of the Department of Health, Manila.
As a consequence of the administrative case, private respondent was placed under preventive suspension
for ninety [90] days per order dated December 17, 1991, issued by herein petitioner Secretary of Health.
Private respondent sought the lifting of her suspension thru a motion dated January 8, 1992.
Pending resolution of her said motion, private respondent instituted an action for prohibition, mandamus,
and injunction with a prayer for a temporary restraining order and a writ of preliminary injunction before
the Regional Trial Court (RTC) of Tuguegarao (Branch 1), docketed as Civil Case No. 4379 and 4397,
seeking the nullification of the order of preventive suspension and of the entire administrative
proceedings. Her action is anchored on her contention that when the New Local Government Code took
effect on January 1, 1992, the Secretary of Health had lost his disciplinary power and authority over her,
considering that such power to discipline the personnel of the Provincial Health Office is now vested in the
Provincial Governor.
Finding merit to the ancillary remedy sought by private respondent, the Regional Trial Court, thru the
herein respondent Judge, issued a temporary restraining order on January 15, 1992, restraining the
Secretary of Health and his representatives from enforcing the preventive suspension order and from
conducting further proceedings in the administrative case against private respondent.
On February 3, 1992, the Secretary of Health filed an omnibus motion to dismiss private respondent's
action and to quash the temporary restraining order, with opposition to the issuance of a preliminary
injunction, contending inter alia that private respondent had failed to exhaust administrative remedies and
that the New Local Government Code did not divest the Secretary of Health of his disciplinary jurisdiction
over the private respondent.
During the hearing of the omnibus motion as well as the application for a preliminary injunction, the
counsel for the Secretary of Health manifested that they are not participating in the proceedings. Thus,
private respondent presented her testimony, who was then cross-examined by the counsel for the other
two petitioners herein, Dr. Orlando Pua, the Director of the Regional Health Office No. 2, and Dr. Jose
Cabrera, the Officer-in-Charge of the Provincial Health Office of Cagayan.
After the hearing, the parties were directed to submit their respective memoranda.
In a decision dated March 25, 1992, the respondent Judge rendered judgment in favor of private
respondent and against petitioners, the pertinent portion of which reads:
The Court is aware that ordinarily it should not interfere with in the prosecution of
administrative complaint as in the case at bar based on the doctrine of exhaustion of
administrative remedies and forum shopping. Considering, however, that with the
enactment of the Local Government Code of 1991 which took effect on January 1, 1992,
the provincial health board headed by the governor is empowered to create committees
which shall advise local health agencies on matters of grievance and complaints,
personal discipline, it is clear that the Secretary of Health ceases to have jurisdiction
over the person of the petitioner and consequently the power and authority to issue the
order of suspension (Sec. 102 of the Local Government Code of 1991).
WHEREFORE, judgment is hereby rendered in favor of the petitioner and against the
respondents restraining immediately the latter from enforcing the order of preventive
suspension dated December 17, 1991 until the administrative case is investigated and
resolved by the provincial health board.
For insufficiency of evidence the contempt charge is hereby dismissed.
SO ORDERED. (p. 39, Rollo)
The private respondent, in a motion dated April 3, 1992, sought clarification of the decision. She also
moved for the execution of the same. Acting on the motion, the respondent Judge issued an order dated
April 14, 1992, ordering the issuance of a writ of execution "to implement the decision of the Court dated
March 25, 1992." The order further states: "On the motion for clarification, considering the finding of this
Court that the Secretary of Health ceases to have jurisdiction to discipline the petitioner (now private
respondent, necessarily, the order of suspension and all other orders emanating thereafter are null and
void and of no further effect" (Annex "B", Petition; p. 40, Rollo).
Copies of the decision dated March 25, 1992 and the order dated April 14, 1992 were received by
petitioners on April 10, 1992 and April 15, 1992, respectively.

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On April 27, 1992, petitioners filed a motion for reconsideration of the March 25, 1992 decision and of the
April 14, 1992 order, insisting that the Secretary of Health has jurisdiction over the administrative case.
Petitioners also contended, among other things, that respondent Judge has no jurisdiction to nullify all
orders issued by the secretary of Health, "they being of equal rank."
Petitioners' motion for reconsideration was denied in an order dated May 28, 1992 (Annex "A", Petition; p.
58, Rollo).
On the same date of May 28, 1992, the Secretary of Health filed a Notice of Appeal with the court a quo,
giving notice that he is appealing the decision dated March 25, 1992 to the Court of Appeals on both
questions of fact and law (pp. 13 and 103, Rollo).
On June 17, 1992, the Secretary of Health filed another motion to stay the execution of the assailed
decision.
Both the notice of appeal and the motion to stay execution were denied upon the ground that the notice of
appeal was filed out of time and that the assailed decision had already become final and executory. The
denial was contained in a decision dated June 26, 1992 which convicted co-petitioner Dr. Jose Cabrera of
indirect contempt of court for refusing to comply with the writ of execution (Annex "C", Petition; p. 41,
Rollo).
Hence, this petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court, assailing the
decision dated March 25, 1992, the order dated April 14, 1992 and the decision dated June 26, 1992.
(Rollo, pp. 32-35)
Respondent court dismissed the petition filed by petitioners and ruled that an ordinary appeal by mere notice of appeal is
the plain and adequate remedy of petitioners against the three assailed processes of the lower court ( Rollo, p. 35). The
Motion for Reconsideration filed by petitioners was also denied (Rollo, p. 54).
The petitioners raise the following errors allegedly committed by the Court of Appeals, to wit:
I
RESPONDENT COURT OF APPEALS ERRED IN NOT GIVING DUE COURSE TO THE SPECIAL CIVIL ACTION OF
CERTIORARI AND PROHIBITION FILED BY PETITIONERS DOCKETED AS CA-G.R. SP NO. 28361.
II
RESPONDENT COURT OF APPEALS ERRED IN NOT TOUCHING ON THE MERITS OF THE PETITION. (Rollo, pp.
17-18)
We find merit in this petition.
At the outset, it should be noted that petitioners' notice of appeal was filed out of time. Petitioners then filed a petition for
certiorari and prohibition before respondent court.
Respondent court, believing that the said petition was made as a substitute for the lost remedy of appeal, held that where
the proper remedy is appeal, the action for certiorari will not entertained. Thus, the petition for certiorari filed by petitioners
was dismissed.
In a long line of cases we held that the special civil action for certiorari under Rule 65 of the Rules of Court will not lie as a
substitute for an available or lost appeal (Sy v. Romero, 214 SCRA 187 [1992]). Nevertheless, even when appeal is available
and is the proper remedy, this Court has allowed a writ of certiorari when the orders of the lower court were issued either in
excess of or without jurisdiction (PNB v. Florendo, 206 SCRA 582 [1992]).
In the present case, the petition for certiorari filed before respondent court was not filed as a mere substitute for appeal. The
facts and circumstances of this case warrant the filing of the petition for certiorari and prohibition. The lower court issued a
writ of execution of its March 25, 1992 decision. The motion to stay execution of the said decision filed by petitioner
Secretary of Health was denied. Likewise, the notice of appeal filed by the said petitioner was also denied. In the same order,
petitioner Dr. Jose Cabrera was found guilty of indirect contempt and a penalty of three months imprisonment was imposed
upon him for allegedly refusing to comply with the writ of execution.
Most importantly, petitioners question the jurisdiction of the lower court in enjoining the order issued by the Secretary of
Health preventively suspending and subsequently dismissing private respondent and declaring that the said department
does not have the jurisdiction to issue the said order.
On the merits, petitioners' main contention is that the court a quo erred in finding that the Secretary of Health has ceased to
have administrative jurisdiction over the person of private respondent in view of the enactment of the Local Government
Code of 1991 which took effect on January 1, 1992 (Rollo, p. 19).
The resolution of the main issue raised by the petitioners calls for the determination of the date of effectivity of the Local
Government Code of 1991.
The pertinent provision of the Local Government Code of 1991 provides:
Sec. 536. Effectivity Clause. This code shall take effect on January first, nineteen hundred ninety-two,
unless otherwise, provided herein, after its complete publication in at least one (1) newspaper of general
circulation. (Emphasis Supplied)

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It is explicit in the abovestated law that the local Government Code of 1991 shall take effect on January 1, 1992. It is an
elementary principle of statutory construction that where the words and phrases of a statute are not obscure and
ambiguous, the meaning and intention of the legislature should be determined from the language employed, and where
there is no ambiguity in the words, there is no room for construction (Allarde v. Commission on Audit, 218 SCRA 227 [1993]).
Furthermore, it is well-settled that jurisdiction is determined by the statute in force at the time of the commencement of the
action (Philippine Singapore Ports Corporation v. NLRC, 218 SCRA 77 [1993]).
In the case at bar, respondent Fe Sibbaluca was administratively charged before petitioner department in 1991. The case
was docketed as Administrative Case No. 000023 S. 1991 and the suspension order was issued by petitioner Secretary of
Health on December 17, 1991. At the time of the commencement of the administrative action, the operative laws are the
Administrative Code of 1987 and Executive Order No. 119. Under the said laws, the Secretary of Health exercises control,
direction and supervision over his subordinates, which include private respondent. Consequently, since jurisdiction has been
acquired by the Secretary of Health over the person of private respondent before the effectivity of the Local Government
Code on January 1, 1992, it continues until the final disposition of the administrative case.
This Court already ruled in a number of cases that jurisdiction once acquired by a court over a case remains with it until the
full termination of the case, unless a law provides the contrary (Bueno Industrial and Development Corporation v. Enage, 104
SCRA 600 [1981]).
At this juncture, it bears stressing that private respondent, a civil servant, cannot use the courts of justice as a shield to
prevent the implementation of administrative sanctions of executive against erring public servants.
WHEREFORE, respondent court's decision is hereby REVERSED and SET ASIDE. The challenged decision and orders of the
Regional Trial Court, Branch I, of Tuguegarao, Cagayan are hereby ANNULLED and SET ASIDE.
SO ORDERED.

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