EN BANC

[G.R. No. 127325. March 19, 1997.]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL
ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS DELFIN,
ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities as founding
members of the People's Initiative for Reforms, Modernization and Action
(PIRMA), respondents.

SENATOR
RAUL
S.
ROCO,
DEMOKRASYA-IPAGTANGGOL
ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD
INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.

Roco Bunag Kapunan & Migallos for movant Raul S. Roco.

Rene V . Sarmiento and R.A.V . Saguisag for movants DIK & MABINI.
Pete Quirino Quadra for respondents Sps. Alberto & Carmen Pedrosa.

SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; COMELEC'S FAILURE TO ACT
ON MOTION TO DISMISS AND ITS INSISTENCE TO HOLD ON TO THE PETITION RENDERED
RIPE AND VIABLE THE PETITION UNDER SECTION 2 OF RULE 65 OF THE RULES OF
COURT. Except for the petitioners and intervenor Roco, the parties paid no serious attention to the
fifth issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when
there is a pending case before the COMELEC. . . It must be recalled that intervenor Roco filed with the
COMELEC a motion to dismiss the Delfin Petition on the ground that the COMELEC has no
jurisdiction or authority to entertain the petition. The COMELEC made no ruling thereon evidently
because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December
1996, it required them to submit within five days their memoranda or oppositions/memoranda. The
COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold onto the petition
rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court.
2. ID.; ID.; THE COURT MAY BRUSH ASIDE TECHNICALITIES OF PROCEDURE IN CASES OF
TRANSCENDENTAL IMPORTANCE. The Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.: A Party's standing
before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in
view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed
aside this technicality because 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.

3. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR REVISIONS;

PROVISION ON THE RIGHT OF THE PEOPLE TO DIRECTLY PROPOSE AMENDMENTS TO
THE CONSTITUTION, NOT SELF-EXECUTORY. Section 2 of Article XVII of the Constitution is
not self-executory. In his book, Joaquin Bernas, a member of the 1986 Constitutional Commission,
stated: Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional action, in the last
analysis it still is dependent on congressional action. Bluntly stated the right of the people to directly
propose amendments to the Constitution through the system of initiative would remain entombed in the
cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while
the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for
whatever reason, does not provide for its implementation.
4. ID.; ID.; ID.; R.A. 6735; INTENDED TO COVER INITIATIVE TO PROPOSE AMENDMENTS TO
THE CONSTITUTION. We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No.
21505 and Senate Bill No. 17. The former was prepared by the committee on Suffrage and Electoral
Reforms of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497,
which dealt with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of
the Constitution; and (b) House Bill No. 988, which dealt with the subject matter of House Bill No. 497,
as well as with initiative and referendum under Section 3 of Article XVII of the Constitution. Senate Bill
No. 17 solely, dealt with initiative and referendum concerning ordinances or resolutions of local
government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House
Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate and by
the House of Representatives. This approved bill is now R.A. No. 6735.
5. ID.; ID.; ID.; ID.; CONGRESS, INVESTED WITH THE POWER TO PROVIDE FOR THE RULES
IMPLEMENTING THE EXERCISE OF THE RIGHT. There is, of course, no other better way for
Congress to implement the exercise of the right than through the passage of a statute or legislative act.
This is the essence or rationale of the last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then reading: "The Congress shall by law
provide for the implementation of the exercise of this right with the Congress shall provide for the
implementation of the exercise of this right." This substitute amendment was an investiture on Congress
of a power to provide for the rules implementing the exercise of the right. The "rules" means "the details
on how [the right] is to be carried out."
6. ID.; ID.; ID.; ID.; NOT IN FULL COMPLIANCE WITH THE POWER AND DUTY OF
CONGRESS TO PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THE RIGHT.
First, Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The inclusion of the word "Constitution"
therein was a delayed afterthought. That word is neither germane nor relevant to said section, which
exclusively relates to initiative and referendum on national laws and local laws, ordinances, and
resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative
on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to
"directly propose, enact, approve, or reject, in whole or in part, the Constitution" through the system of
initiative. They can only do so with respect to "laws, ordinances, or resolutions."' . . . Second. It is true
that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and
mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who must submit the proposal.
But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a
petition for initiative on the Constitution. Section 5 paragraph (c) requires, among other things, a
statement of the proposed law sought to be enacted, approve or rejected, amended or repealed, as the

case may be. It does not include, as among the contents of the petition, the provisions of
the Constitution sought to be amended, in the case of initiative on the Constitution. . . . The use of the
clause "proposed laws sought to be enacted, approved or rejected, amended or repealed" only
strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to
the Constitution.Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle, II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for
initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust
of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to
fully provide for the implementation of the initiative on amendments to the Constitution, it could have
provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws. . . . The foregoing brings us to the
conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive
matter are fatal and. cannot be cured by "empowering" the COMELEC "to promulgate such rules and
regulations as may be necessary to carry out the purposes of [the] Act."
7. ID.; ID.; ID.; ID.; SUBTITLING OF THE ACT, NOT ACCURATE. A further examination of the
Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on National
Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, (2) that
portion of Section 1] (Indirect Initiative) referring to indirect initiative with the legislative bodies of
local governments, and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the
findings of sufficiency or insufficiency of the petition for initiative or referendum, which could be
petitions for both national and local initiative and referendum.
8. ID.; ID.; ID.; ID.; SECTION 18 ON AUTHORITY OF COURTS UNDER SUBTITLE ON LOCAL
INITIATIVE AND REFERENDUM, MISPLACED. Section 18 on "Authority of Courts" under
subtitle III on Local Initiative and Referendum is misplaced, since the provision therein applies to both
national and local initiative and referendum.
9. ID.; ID.; ID.; ID.; FAILED TO GIVE SPECIAL ATTENTION ON THE SYSTEM OF INITIATIVE
ON AMENDMENTS TO THE CONSTITUTION WHICH IS MORE IMPORTANT BEING THE
PARAMOUNT SYSTEM OF INITIATIVE. While R.A. No. 6735 exerted utmost diligence and care
in providing for the details in the implementation of initiative and referendum on national and local
legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of
initiative on amendments to the Constitution. Upon the other hand, as to initiative on amendments to
the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions the word
"Constitution" in Section 2. (b) defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by
which the proposition, in an initiative on the Constitution may be approved or rejected by the people.,
(d) reiterates the constitutional requirements as to the number of voters who should sign the petition;
and (e) provides for the date of effectivity of the approved proposition. There was, therefore, an obvious
downgrading of the more important or the paramount system of initiative. R.A. No. 6735 thus delivered
a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a
reluctant lip service.

10. ID.; ID.; ID.; ID.; ARGUMENT THAT INITIATIVE ON AMENDMENTS TO

THE CONSTITUTION IS SUBSUMED UNDER SUBTITLE ON NATIONAL INITIATIVE AND
REFERENDUM, NOT ACCEPTABLE. We cannot accept the argument that the initiative on
amendments to the Constitution is subsumed under the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum) and
Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not

based on the scope of the initiative involved, but on its nature and character. It is national initiative," if
what is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is
"local initiative" if what is proposed to be adopted or enacted is a law,ordinance, or resolution which
only the legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative into national and local is actually
based on Section 3 of the Act.
11. ID.; ID.; ID.; ID.; COMELEC DOES NOT HAVE THE POWER TO VALIDLY PROMULGATE
RULES AND REGULATIONS TO IMPLEMENT THE EXERCISE OF THE RIGHT OF THE
PEOPLE TO DIRECTLY PROPOSE AMENDMENTS TO THE CONSTITUTION UNDER R.A. 6735.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to
implement the exercise of the right of the people to directly propose amendments to
the Constitution through the system of initiative. It does not have that power under R.A. No. 6735.
Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced,
for the laws and regulations referred to therein are those promulgated by the COMELEC under (a)
Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized
and which satisfies the "completeness" and the "sufficient standard" tests.
12. ID.; ID.; ID.; ID.; DELFIN PETITION, DEFECTIVE BECAUSE IT DOES NOT CONTAIN THE
SIGNATURES OF THE REQUIRED NUMBER OF VOTERS. Under Section 2 of Article XVII of
the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the Constitution must be
signed by at least 12% of the total number of registered voters of which every legislative district is
represented by at least 3% of the registered voters therein. The Delfin Petition does not contain
signatures of the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed validly initiated.
13. ID.; ID.; ID.; ID.; DELFIN PETITION, NOTHING MORE THAN A MERE SCRAP OF PAPER.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. . . .
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning,
undocketed. That petition was nothing more than a mere scrap of paper, which should not have been
dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing
Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC
acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and
resources.
14. POLITICAL LAW; LEGISLATIVE DEPARTMENT ; DELEGATION OF POWER; WHAT HAS
BEEN DELEGATED CANNOT BE DELEGATED; EXCEPTIONS THEREOF. The rule is that
what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non
delegari potest. The recognized exceptions to the rule are as follows: (1) Delegation of tariff powers to
the President under Section 28(2) of Article VI of the Constitution; (2) Delegation of emergency powers
to the President under Section 23 (2) of Article VI of the Constitution; (3) Delegation to the people at
large; (4) Delegation to local governments; and (5) Delegation to administrative bodies.
15. ID.; ID.; ID.; REQUISITES FOR VALID DELEGATION; SUFFICIENT STANDARD;
CONSTRUED; R.A. 6735 MISERABLY FAILED TO SATISFY BOTH REQUIREMENTS. In
every case of permissible delegation, there must be a showing that the delegation itself is valid. It is
valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently

determinate and determinable to which the delegate must conform in the performance of his
functions. A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
PUNO, J., concurring and dissenting:
1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR REVISIONS: R.A. 6735;
SUFFICIENTLY IMPLEMENTS THE RIGHTS OF THE PEOPLE TO INITIATE AMENDMENTS
TO THE CONSTITUTION THRU INITIATIVE. I submit that R.A. No. 6735 sufficiently
implements the right of the people to initiate amendments to theConstitution thru initiative. . . . We need
not torture the text of said law to reach the conclusion that it implements people's initiative to amend
the Constitution. R.A. No. 6735 is replete with references to this prerogative of the people. First,
the policy statement declares: "Sec. 2. Statement of Policy. The power of the people under a system
of initiative and referendum to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with
the requirements and guaranteed." Second, the law defines "initiative" as "the power of the people to
propose amendments to the Constitution or to propose and enact legislations through an election called
for the purpose," and "plebiscite" as "the electoral process by which an initiative on theConstitution is
approved or rejected by the people." Third, the law provides the requirements for a petition for initiative
to amend the Constitution. Section 5(b) states that "(a) petition for an initiative on the
1987 Constitution must have at least twelve per centum (12%) of the total number of registered voters
as signatories, of which every legislative district must be represented by at least three per centum (3%)
of the registered voters therein." It also states that "(i)nitiative on the Constitution may be exercised only
after five (5) years from the ratification of the 1987 Constitution and only once every five (5) years
thereafter." Finally, R.A. No. 6735 fixes the effectivity date of the amendment. Section 9(b) states that
"(t)he proposition in an initiative on the Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite."
2. ID.; ID.; ID.; ID.; SUFFICIENTLY STATES THE POLICY AND STANDARDS TO GUIDE THE
COMELEC IN PROMULGATING THE IMPLEMENTING RULES AND REGULATIONS OF THE
LAW; CASE AT BAR. R.A. No. 6735 sufficiently states the policy and the standards to guide the
COMELEC in promulgating the law's implementing rules and regulations of the law. . . . In the case at
bar, the policy and the standards are bright-lined in R.A. No. 6735. A 20-20 look at the law cannot miss
them. They were not written by our legislators in invisible ink. The policy and standards can also be
found in no less than Section 2, Article XVII of the Constitution on Amendments or Revisions. There is
thus no reason to hold that the standards provided for in R.A. No. 6735 are insufficient for in other cases
we have upheld as adequate more general standards such as "simplicity and dignity," "public interest,"
"public welfare," "interest of law and order," "justice and equity," "adequate and efficient instruction,"
"public safety," "public policy," "greater national interest, "protect the local consumer by stabilizing and
subsidizing domestic pump rates," and "promote simplicity, economy and efficiency in government." A
due regard and respect to the legislature, a co-equal and coordinate branch of government, should
counsel this Court to refrain from refusing to effectuate laws unless they are clearly unconstitutional.
3. ID.; ID.; ID.; ID.; COMELEC RESOLUTION NO. 2300 MERELY PROVIDES THE PROCEDURE
TO EFFECTUATE THE POLICY OF R.A. 6735, HENCE, DID NOT VIOLATE THE RULES ON
VALID DELEGATION. In enacting R.A. No. 6735, it cannot be said that Congress totally
transferred its power to enact the law implementing people's initiative to COMELEC. A close look at
COMELEC Resolution No. 2300 will show that it merely provided the procedure to effectuate the
policy of R.A. No. 6735 giving life to the people's initiative to amend the Constitution. The debates in
the Constitutional Commission make it clear that the rules of procedure to enforce the people's initiative
can be delegated. . . . The prohibition against the legislature is to impair the substantive right of the

people to initiate amendments to the Constitution. It is not, however, prohibited from legislating the
procedure to enforce the people's right of initiative or to delegate it to another body like the COMELEC
with proper standard.

4. ID.; ID.; ID.; ID.; ARGUMENT ON LACK OF SUB-TITLE ON PEOPLE'S INITIATIVE TO

AMEND THE CONSTITUTION, SHOULD BE GIVEN THE WEIGHT OF HELIUM. The
argument that R.A. No. 6735 does not include people's initiative to amend the Constitution simply
because it lacks a sub-title on the subject should be given the weight of helium. Again, the hoary rule in
statutory construction is that headings prefixed to titles, chapters and sections of a statute may be
consulted in aid of interpretation, but inferences drawn therefrom are entitled to very little weight, and
they can never control the plain terms of the enacting clauses.
5. ID.; ID.; ID.; ID.; ID.; LAPSES IN R.A. 6735 ARE TO BE EXPECTED, FOR LAWS ARE NOT
ALWAYS WRITTEN IN IMPECCABLE ENGLISH. It is unfortunate that the majority decision
resorts to a strained interpretation of R.A. No. 6735 to defeat its intent which it itself concedes is to
implement people's initiative to propose amendments to the Constitution. Thus, it laments that the word
"Constitution" is neither germane nor relevant to the Policy thrust of Section 2 and that the statute's
subtitling is not accurate. These lapses are to be expected for laws are not always written in impeccable
English. Rightly, the Constitution does not require our legislators to be word-smiths with the ability to
write bills with poetic commas like Jose Garcia Villa or in lyrical prose like Winston Churchill . But it
has always been our good policy not to refuse to effectuate the intent of a law on the ground that it is
badly written. As the distinguished Vicente Francisco reminds us: "Many laws contain words which
have not been used accurately. But the use of inapt or inaccurate language or words, will not vitiate the
statute if the legislative intention can be ascertained. The same is equally true with reference to
awkward, slovenly, or ungrammatical expressions, that is, such expressions and words will be construed
as carrying the meaning the legislature intended that they bear, although such a construction necessitates
a departure from the literal meaning of the words used."
6. ID.; ID.; ID.; ID.; PETITION AGAINST RESPONDENTS PEDROSAS SHOULD BE DISMISSED
BECAUSE IT STATES NO CAUSE OF ACTION. The petition should be dismissed with respect to
the Pedrosas. The inclusion of the Pedrosas in the petition is utterly baseless. The records show that the
case at bar started when respondent Delfin alone and by himself filed with the COMELEC a Petition to
Amend the Constitution to Lift Term Limits of Elective Officials by People's Initiative. The Pedrosas
did not join the petition. . . . Petitioners sued the COMELEC, Jesus Delfin, Alberto Pedrosa and
Carmen Pedrosa in their capacities as founding members of the People's Initiative for Reform,
Modernization and Action (PIRMA). The suit is an original action for prohibition with prayer for
temporary restraining order and/or writ of preliminary injunction. The petition on its face states no
cause of action against the Pedrosas. The only allegation against the Pedrosas is that they are founding
members of the PIRMA which proposes to undertake the signature drive for people's initiative to amend
the Constitution.
7 ID.; ID.; ID.; ID.; SOLICITATION OF SIGNATURES IS A RIGHT GUARANTEED IN BLACK
AND WHITE BY SECTION 2 OF ARTICLE XVII OF THE CONSTITUTION. One need not draw
a picture to impart the proposition that in soliciting signatures to start a people's initiative to amend
the Constitution the Pedrosas are not engaged in any criminal act. Their solicitation of signatures is a
right guaranteed in black and white by Section 2 of Article XVII of the Constitution which provides that
". . . amendments to this Constitution may likewise be directly proposed by the people through initiative
. . . ." This right springs from the principle proclaimed in Section 1, Article II of theConstitution that in a
democratic and republican state "sovereignty resides in the people and all government authority
emanates from them." The Pedrosas are part of the people and their voice is part of the voice of the
people. They may constitute but a particle of our sovereignty but no power can trivialize them for
sovereignty is indivisible.

8. ID.; ID.; ID.; RESPONDENTS' RIGHT OF SOLICITING SIGNATURES TO AMEND

THE CONSTITUTION, CANNOT BE ABRIDGED WITHOUT ANY IFS AND BUTS. Section 16
of Article XIII of the Constitution provides: "The right of the people and their organizations to effective
and reasonable participation at all levels of social, political and economic decision-making shall not be
abridged. The State shall by law, facilitate the establishment of adequate consultation mechanisms."
This is another novel provision of the 1987 Constitution strengthening the sinews of the sovereignty of
our people. In soliciting signatures to amend the Constitution, the Pedrosas are participating in the
political decision-making process of our people. The Constitution says their right cannot be abridged
without any ifs and buts. We cannot put a question mark on their right.

13. ID.; ID.; ID.; THE COURT HAS PRUDENTIALLY REFRAINED FROM INVALIDATING
ADMINISTRATIVE RULES ON THE GROUND OF LACK OF ADEQUATE STANDARD. A
survey of our case law will show that this Court has prudentially refrained from invalidating
administrative rules on the ground of lack of adequate legislative standard to guide their promulgation.
As aptly perceived by former Justice Cruz, "even if the law itself does not expressly pinpoint the
standard, the courts will bend backward to locate the same elsewhere in order to spare the statute, if it
can, from constitutional infirmity.

9. ID.; ID.; ID.; RESPONDENTS' CAMPAIGN TO AMEND THE CONSTITUTION IS AN

EXERCISE OF THEIR FREEDOM OF SPEECH AND EXPRESSION AND THEIR RIGHT TO
PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES. The Pedrosas' campaign to
amend the Constitution is an exercise of their freedom of speech and expression. We have memorialized
this universal right in all our fundamental laws from the Malolos Constitution to the 1987 Constitution.
We have iterated and reiterated in our rulings that freedom of speech is a preferred right, the matrix of
other important rights of our people. Undeniably, freedom speech enervates the essence of the
democratic creed of think and let think. For this reason, the Constitution encourages speech even if it
protects the speechless.

1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR REVISIONS; R.A. 6735;

DELFIN PETITION, UTTERLY DEFICIENT. The Delfin petition is thus utterly deficient. Instead of
complying with the constitutional imperatives, the petition would rather have much of its burden passed
on, in effect, to the COMELEC. The petition would require COMELEC to schedule "signature gathering
all over the country," to cause the necessary publication of the petition "in newspapers of general and
local circulation," and to instruct "Municipal Election Registrars in all Regions of the Philippines to
assist petitioners and volunteers in establishing signing stations at the time and on the dates designated
for the purpose.

10. ID.; ID.; ID.; RESPONDENTS, RIGHT TO SOLICIT SIGNATURES TO START A PEOPLE'S
INITIATIVE TO AMEND THE CONSTITUTION DOES NOT DEPEND ON ANY LAW. It is thus
evident that the right of the Pedrosas to solicit signatures to start a people's initiative to amend
the Constitution does not depend on any law, much less onR.A. No. 6735 or COMELEC Resolution No.
2300. No law, no Constitution can chain the people to an undesirable status quo. To be sure, there are no
irrepealable laws just as there are no irrepealable Constitutions. Change is the predicate of progress and
we should not fear change. Mankind has long recognized the truism that the only constant in life is
change and so should the majority.
11. STATUTORY CONSTRUCTION; INTENT OF THE LEGISLATURE; THE INTENT OF R.A.
6735 IS TO IMPLEMENT THE PEOPLE'S INITIATIVE TO AMEND THECONSTITUTION. Our
effort to discover the meaning of R.A. No. 6735 should start with the search of the intent of our
lawmakers. A knowledge of this intent is criticalfor the intent of the legislature is the law and the
controlling factor in its interpretation. Stated otherwise, intent is the essence of the law, the spirit which
gives life to its enactment. . . . Since it is crystalline that the intent of R.A. No. 6735 is to implement the
people's initiative to amend the Constitution, it is our bounden duty to interpret the law as it was
intended by the legislature. We have ruled that once intent is ascertained, it must be enforced even if it
may not be consistent with the strict letter of the law and this ruling is as old as the mountain. We have
also held that where a law is susceptible of more than one interpretation, that interpretation which will
most tend to effectuate the manifest intent of the legislature will be adopted. The text of R.A. No.
6735 should therefore be reasonably construed to effectuate its intent to implement the people's
initiative to amend the Constitution. . . . All said, it is difficult to agree with the majority decision that
refuses to enforce the manifest intent or spirit of R.A. No. 6735 to implement the people's initiative to
amend the Constitution. It blatantly disregards the rule cast in concrete that the letter of the law is its
body but its spirit is its soul.
12. POLITICAL LAW; LEGISLATIVE DEPARTMENT; DELEGATION OF POWER; SUFFICIENT
STANDARD; PURPOSE THEREOF. Former Justice Isagani A. Cruz similarly elucidated that "a
sufficient standard is intended to map out the boundaries of the delegates' authority by defining the
legislative policy and indicating the circumstances under which it is to be pursued and effected.
The purpose of the sufficient standard is to prevent a total transference of legislative power from the
lawmaking body to the delegate."

VITUG, J., separate opinion:

2. ID.; ID.; ID.; TEMPORARY RESTRAINING ORDER ISSUED BY THE COURT SHOULD BE
HELD TO COVER ONLY THE DELFIN PETITION. The TRO earlier issued by the Court which,
consequentially, is made permanent under the ponencia should be held to cover only the Delfin petition
and must not be so understood as having intended or contemplated to embrace the signature drive of the
Pedrosas. The grant of such a right is clearly implicit in the constitutional mandate on people initiative.

FRANCISCO, J., dissenting and concurring:

1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR REVISIONS; R.A. 6735;
AMPLY COVERS AN INITIATIVE ON THE CONSTITUTION. Republic Act No. 6735, otherwise
known as "The Initiative and Referendum Act" amply covers an initiative on the Constitution. In its
definition of terms, Republic Act No. 6735 definesinitiative as "the power of the people to propose
amendments to the constitution or to propose and enact legislations through an election called for the
purpose." The same section, in enumerating the three systems of initiative, included in "initiative on
the constitution which refers to a petition proposing amendments to theconstitution." Paragraph (e)
again of Section 3 defines "plebiscite" as "the electoral process by which an initiative on
the constitution is approved or rejected by the people." And as to the material requirements for an
initiative on the Constitution, Section 5(b) distinctly enumerates the following: "A petition for an
initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of
the registered voters as signatories, of which every legislative distinct must be represented by at least
three per centum (3%) of the registered voters therein. Initiative on the constitution may be exercised
only after five (5) years from the ratification of 1987 Constitution and only once every five years
thereafter." These provisions were inserted, on purpose, by Congress the intent being to provide for the
implementation of the right to propose an amendment to the Constitution by way of initiative. "A legal
provision," the Court has previously said, "must not be construed as to be a useless surplusage, and
accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever
thereon". . . . Clearly then,Republic Act No. 6735 covers an initiative on the constitution. Any other
construction as what petitioners foist upon the Court constitute a betrayal of the intent and spirit behind
the enactment.
2. ID.; ID.; ID.; ID.; COMELEC CANNOT TAKE ANY ACTION ON DELFIN PETITION BECAUSE
IT IS UNACCOMPANIED BY THE REQUIRED PERCENTAGE OF REGISTERED VOTERS; CASE
AT BAR. I agree with the ponencia that the Commission on Elections, at present, cannot take any

action (such as those contained in the Commission's orders dated December 6, 9, and 12, 1996 [Annexes
B, C and B-1 ]) indicative of its having already assumed jurisdiction over private respondents' petition.
This is so because from the tenor of Section 5 (b) of R.A. No. 6735 it would appear that proof of
procurement of the required percentage of registered voters at the time the petition for initiative is filed,
is a jurisdictional requirement. Here private respondents' petition is unaccompanied by the required
signatures. This defect notwithstanding, it is without prejudice to the refiling of their petition once
compliance with the required percentage is satisfactorily shown by private respondents. In the absence,
therefore, of an appropriate petition before the Commission on Elections, any determination of whether
private respondents' proposal constitutes an amendment or revision is premature.
3. STATUTORY CONSTRUCTION; EVERY PART OF THE STATUTE MUST BE INTERPRETED
WITH REFERENCE TO THE CONTEXT. It is a rule that every part of the statute must be
interpreted with reference to the context, i.e., that every part of the statute must be construed together
with the other parts and kept subservient to the general intent of the whole enactment. Thus, the
provisions of Republic Act No. 6735 may not be interpreted in isolation. The legislative intent behind
every law is to be extracted from the statute as a whole.

the Constitution and initiative and referendum on national and local laws," not by the incumbent
Commission on Elections by one then composed of Acting Chairperson Haydee B. Yorac, Comms.
Alfredo E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B.
Dimaampao. All of these Commissioners who signed resolution 2300 have retired from the
Commission, and thus we cannot ascribe any vile motive unto them, other than an honest, sincere and
exemplary effort to give life to a cherished right of our people.
5. ID.; ID.; ID.; ID.; THE COURT HAS NO POWER TO RESTRAIN ANYONE FROM EXERCISING
THEIR RIGHT OF INITIATIVE. The Court has no power to restrain them from exercising their
right of initiative. The right to propose amendments to the Constitution is really a species of the right of
free speech and free assembly. And certainly, it would be tyrannical and despotic to stop anyone from
speaking freely and persuading others to conform to his/her beliefs. As the eminent Voltaire once said, "I
may disagree with what you say, but I will defend to the death your right to say it." After all, freedom is
not really for the thought we agree with, but as Justice Holmes wrote, "freedom for the thought that we
hate."

PANGANIBAN, J., concurring and dissenting:

1. CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR REVISIONS; R.A. 6735;
TAKEN TOGETHER AND INTERPRETED PROPERLY, THE CONSTITUTION, R.A. 6735 AND
COMELEC RESOLUTION 2300 ARE SUFFICIENT TO IMPLEMENT CONSTITUTIONAL
INITIATIVES. While R.A. 6735 may not be a perfect law it was as the majority openly concedes
intended by the legislature to cover and, I respectfully submit, it contains enough provisions to
effectuate an initiative on the Constitution. I completely agree with the inspired and inspiring opinions
of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's
unanimous en banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, that
"provisions for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate and
not hamper the exercise by the voters of the rights granted thereby'; and in Garcia vs. Comelec, that any
effort to trivialize the effectiveness of people's initiatives ought to be rejected."
2. ID.; ID.; ID .; ID.; MAJORITY'S POSITION ALL TOO SWEEPING AND ALL TOO EXTREMIST.
I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the
whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen
Delfin wants the Comelec to do we should reject. But we should not thereby preempt any future effort to
exercise the right of initiative correctly and judiciously. The fact that the Delfin Petition proposes a
misuse of initiative does not justify a ban against its proper use. Indeed, there is a right way to do the
right thing at the right time and for the right reason.
3. ID.; ID.; ID.; ID.; COMELEC CANNOT ENTERTAIN ANY PETITION IN THE ABSENCE OF
THE REQUIRED NUMBER OF SIGNATURES. Until and unless an initiatory petition can show the
required number of signatures in this case, 12% of all the registered voters in the Philippines with at
least 3% in every legislative district no public funds may be spent and no government resources may
be used in an initiative to amend the Constitution. Verily, the Comelec cannot even entertain any petition
absent such signatures.
4. ID.; ID.; ID.; ID.; WISELY EMPOWERED THE COMMISSION ON ELECTIONS TO
PROMULGATE RULES AND REGULATIONS. No law can completely and absolutely cover all
administrative details. In recognition of this, R.A. 6735 wisely empowered the Commission on
Elections "to promulgate such rules and regulations as may be necessary to carry out the purposes of
this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such
Resolution, by its very words, was promulgated "to govern the conduct of initiative on

DECISION

DAVIDE, JR., J p:
The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the
Rules of Court is the right of the people to directly propose amendments to the Constitution through the
system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this
demands special attention, as this system of initiative was unknown to the people of this country, except
perhaps to a few scholars before the drafting of the 1987 Constitution. The 1986 Constitutional
Commission itself, through the original proponent 1 and the main sponsor 2 of the proposed Article on
Amendments or Revision of the Constitution, characterized this system as "innovative". 3 Indeed it is,
for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or
revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its
members and (2) by a constitutional convention. 4 For this and the other reasons hereafter discussed, we
resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission
on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of
Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the
COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for Initiative
on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the dates
designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a
group of citizens desirous to avail of the system intended to institutionalize people power; that he and
the members of the Movement and other volunteers intend to exercise the power to directly propose

amendments to theConstitution granted under Section 2, Article XVII of the Constitution; that the
exercise of that power shall be conducted in proceedings under the control and supervision of the
COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established
all over the country, with the assistance of municipal election registrars, who shall verify the signatures
affixed by individual signatories; that before the Movement and other volunteers can gather signatures,
it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be
issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it
is likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed,
be published in newspapers of general and local circulation, under the control and supervision of the
COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI, 7 Section 4 of Article VII, 8 and Section 8 of Article X9 of the Constitution. Attached to the
petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed
amendments which consist in the deletion from the aforecited sections of the provisions concerning term
limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4
OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be
formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause
the publication of the petition, together with the attached Petition for Initiative on the
1987 Constitution (including the proposal, proposed constitutional amendment, and the signature form),
and the notice of hearing in three (3) daily newspapers of general circulation at his own expense" not
later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty.
Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action
(PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol
ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN). 12Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the
ground that it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
"memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago, Alexander Padilla,
and Maria Isabel Ongpin filed this special civil action for prohibition raising the following
arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can only be
implemented by law to be passed by Congress. No such law has been passed; in fact, Senate
Bill No. 1290 entitled An Act Prescribing and Regulating Constitutional Amendments by
People's Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still
pending before the Senate Committee on Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on
the Constitution, on statutes, and on local legislation. However, it failed to provide any
subtitle initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that
the matter of people's initiative to amend the Constitution was left to some future law.
Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech
delivered before the Senate in 1994: "There is not a single word in that law which can be
considered as implementing [the provision on constitutional initiative]. Such implementing
provisions have been obviously left to a separate law."
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print
media. This indicates that the Act covers only laws and not constitutional amendments
because the latter take effect only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and referendum on national and local laws,
is ultra vires insofar as initiative on amendments to the Constitution is concerned, since the
COMELEC has no power to provide rules and regulations for the exercise of the right of
initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass
the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore,
outside the power of the people's initiative. cdtai
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds for
the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the
event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would
entail expenses to the national treasury for general re-registration of voters amounting to at least P180
million, not to mention the millions of additional pesos in expenses which would be incurred in the
conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled promptly and definitely, brushing aside
technicalities of procedure and calling for the admission of a taxpayer's and legislator's suit. 14 Besides,
there is no other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a nonextendible period of ten days from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent COMELEC from
proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from
conducting a signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty. Quadra, filed their Comment 15 on the petition.
They argue therein that:
1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL
TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT
LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE
COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE
THE COMELEC."
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT

DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE
ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC.
THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID
BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE
CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE
HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE
CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS . COMELEC, ET . AL. G.R. NO.
125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S
SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED
FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO
LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE
LAWS."

initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of
laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to
amend the Constitution approved by the majority of the votes cast in the plebiscite shall
become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be necessary to
carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to,
the Constitution because it seeks to alter only a few specific provisions of theConstitution, or
more specifically, only those which lay term limits. It does not seek to reexamine or overhaul
the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a
plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements
for initiative will be a priority government expense because it will be for the exercise of the sovereign
power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of
the Solicitor General contends that:

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS A

PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE
SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E,
PETITION);

(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power;
and its Section 3, which enumerates the three systems of initiative, includes initiative on
the Constitution and defines the same as the power to propose amendments to
the Constitution. Likewise, its Section 5 repeatedly mentions initiative on the Constitution.

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE

OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION"
OF THECONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF
THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD
BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, SJ.).

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked
pertinent provisions of the law when he claimed that nothing therein was provided
for initiative on the Constitution.

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts
off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on
the 1987 Constitution' . . . which is not formally filed yet." What he filed on 6 December 1996 was an
"Initiatory Pleading" or "Initiatory Petition," which was legally necessary to start the signature
campaign to amend the Constitution or to put the movement to gather signatures under COMELEC
power and function. On the substantive allegations of the petitioners, Delfin maintain as follows:

(4) Extension of term limits of elected officials constitutes a mere amendment to

the Constitution, not a revision thereof.

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the
conduct of initiative to amend the Constitution. The absence therein of a subtitle for such

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does
not deal with initiative on the Constitution.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the COMELEC to
implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay
Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted
the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private

respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas;
and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed
him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on
23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of
Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention.
Attached to the motion was their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of,
the Constitution because, in the words of Fr. Joaquin Bernas, SJ., 18 it would involve a
change from a political philosophy that rejects unlimited tenure to one that accepts unlimited
tenure; and although the change might appear to be an isolated one, it can affect other
provisions, such as, on synchronization of elections and on the State policy of guaranteeing
equal access to opportunities for public service and prohibiting political
dynasties. 19 A revision cannot be done by initiative which, by express provision of Section
2 of Article XVII of the Constitution, is limited toamendments.
(2) The prohibition against reelection of the President and the limits provided for all other
national and local elective officials are based on the philosophy of governance, "to open up
the political arena to as many as there are Filipinos qualified to handle the demands of
leadership, to break the concentration of political and economic powers in the hands of a few,
and to promote effective proper empowerment for participation in policy and decisionmaking for the common good"; hence, to remove the term limits is to negate and nullify the
noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative particularly in a conflict-ofinterest situation. Initiative is intended as a fallback position that may be availed of by the
people only if they are dissatisfied with the performance of their elective officials, but not as
a premium for good performance. 20
(4) R.A. No 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people's initiative on amendments to the Constitution. It fails to state (a) the
proper parties who may file the petition, (b) the appropriate agency before whom the petition
is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and
means of gathering the signatures of the voters nationwide and 3% per legislative district, (f)
the proper parties who may oppose or question the veracity of the signatures, (g) the role of
the COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the
appeal from any decision of the COMELEC, (i) the holding of a plebiscite, and (g) the
appropriation of funds for such people's initiative. Accordingly, there being no enabling law,
the COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiative under Section 2 of Article XVII of the Constitution. That
function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a
legal basis for the Resolution, as the former does not set a sufficient standard for a valid
delegation of power.

and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was
empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless,
he contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin
Petition and to order its publication because the said petition is not the initiatory pleading contemplated
under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests
jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for
initiative which is signed by the required number of registered voters. He also submits that the
proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC
to assist them in securing the required number of signatures, as the COMELEC's role in an initiative on
the Constitution is limited to the determination of the sufficiency of the initiative petition and the call
and supervision of a plebiscite, if warranted.cdt
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of
the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on
the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required
number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by
Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the
DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention
of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of
five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and
the respondents to comment thereon within a nonextendible period of five days from receipt of the said
Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which
the Court formulated in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or coverinitiative on
amendments to the Constitution; and if so, whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on
National and Local Laws) regarding the conduct of initiative on amendments to
the Constitution is valid, considering the absence in the law of specific provisions on the
conduct of such initiative.

On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. 21 He avers that R.A. No.
6735 is the enabling law that implements the people's right to initiate constitutional amendments. This
law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill

3. Whether the lifting of term limits of elective national and local officials, as proposed in the
draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an
amendment to, the Constitution.

adverse environmental consequences on the body politic of the questioned Comelec order.
The consequent climate of legal confusion and political instability begs for judicial
statesmanship.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely
intended to obtain an order (a) fixing the time and dates for signature gathering; (b)
instructing municipal election officers to assist Delfin's movement and volunteers in
establishing signature stations; and (c) directing or causing the publication of, inter alia, the
unsigned proposed Petition for Initiative on the 1987 Constitution.

30. In the final analysis, when the system of constitutional law is threatened by the political
ambitions of man, only the Supreme Court can save a nation in peril and uphold the
paramount majesty of the Constitution. 25

5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is
a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin
Petition for failure to state a sufficient cause of action and that the Commission's failure or refusal to do
so constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of
the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee,
Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill
No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in
Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time,
their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC
OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is
a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for
prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior
tribunal from usurping a jurisdiction with which it is not legally vested. (People v. Vera,
supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive and

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently because after having heard the arguments
of Delfin and the oppositors at the hearing on 12 December 1996, it required them to submit within five
days their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it
practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing;
and by setting the case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the instant petition under Section 2 of Rule
65 of the Rules of Court, which provides:
SEC. 2. Petition for prohibition. Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal or
any other plain, speedy and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant to desist from
further proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the required minimum number of signatures of
registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these
claims, the instant case may likewise be treated as a special civil action for certiorariunder Section I of
Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan,
Inc. v. Guingona, Jr.; 28
A party's standing before this Court is a procedural technicality which it may, in the exercise
of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because 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.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON
AMENDMENTS
TO THE CONSTITUTION,
BUT
IS,
UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per

centum of the registered voters therein. No amendment under this section shall be authorized
within five years following the ratification of this Constitution nor oftener than once every
five years thereafter.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no
details in the provision on how to carry this out. Do we understand therefore that we are
leaving this matter to the legislature?

The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986
Constitutional Commission, stated:

MR. SUAREZ.
That is right, Madam President.

Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional action, in
the last analysis it still is dependent on congressional action.

FR. BERNAS.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through the
system of initiative would remain entombed in the cold niche of the Constitution until Congress
provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that
right, the people cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.

MR. SUAREZ.

And do we also understand, therefore, that for as long as the legislature does not pass the
necessary implementing law on this, this will not operate?

SEC. 1. Any amendment to, or revision of, this Constitution may be proposed:

That matter was also taken up during the committee hearing, especially with respect to the
budget appropriations which would have to be legislated so that the plebiscite could be
called. We deemed it best that this matter be left to the legislature. The Gentleman is right. In
any event, as envisioned, no amendment through the power of initiative can be called until
after five years from the date of the ratification of this Constitution. Therefore, the first
amendment that could be proposed through the exercise of this initiative power would be
after five years. It is reasonably expected that within that five-year period, the National
Assembly can come up with the appropriate rules governing the exercise of this power.

(a) by the National Assembly upon a vote of three-fourths of all its members; or

FR. BERNAS.

(b) by a constitutional convention; or

Since the matter is left to the legislature the details on how this is to be carried out is it
possible that, in effect, what will be presented to the people for ratification is the work of the
legislature rather than of the people? Does this provision exclude that possibility?

This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That
section reads as follows:

(c) directly by the people themselves thru initiative as provided for in Article _____ Section
_____ of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ.
Thank you, Madam President. May we respectfully call attention of the Members of the
Commission that pursuant to the mandate given to us last night, we submitted this afternoon
a complete Committee Report No. 7 which embodies the proposed provision governing the
matter of initiative. This is now covered by Section 2 of the complete committee report. With
the permission of the Members, may I quote Section 2:
"The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters."

MR. SUAREZ.
No, it does not exclude that possibility because even the legislature itself as a body could
propose that amendment, maybe individually or collectively, if it fails to muster the threefourths vote in order to constitute itself as a constituent assembly and submit that proposal to
the people for ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO.
Do I understand from the sponsor that the intention in the proposal is to vest constituent
power in the people to amend the Constitution?
MR. SUAREZ.

This completes the blanks appearing in the original Committee Report No. 7. 32

That is absolutely correct, Madam President.

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:

MS. AQUINO.

FR. BERNAS.

I fully concur with the underlying precept of the proposal in terms of institutionalizing
popular participation in the drafting of the Constitution or in the amendment thereof, but I
would have a lot of difficulties in terms of accepting the draft of Section 2, as written. Would

Madam President, just two simple, clarificatory questions.

10

the sponsor agree with me that in the hierarchy of legal mandate, constituent power has
primacy over all other legal mandates?

amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead

of setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ.

MR. SUAREZ.

The Commissioner is right, Madam President.

We would be amenable except that, as we clarified a while ago, this process of initiative is
limited to the matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense that was conveyed by
the Committee.

MS. AQUINO.
And would the sponsor agree with me that in the hierarchy of legal values,
the Constitution is source of all legal mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the Constitution?
MR. SUAREZ.
That proposition is nondebatable.
MS. AQUINO.
Such that in order to underscore the primacy of constituent power we have a separate article
in the Constitution that would specifically cover the process and the modes of amending
the Constitution?

MS. AQUINO.
In other words, the Committee was attempting to distinguish the coverage of modes (a) and
(b) in Section 1 to include the process of revision; whereas theprocess of initiation to amend,
which is given to the public, would only apply to amendments?
MR. SUAREZ.
That is right. Those were the terms envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:

MR. SUAREZ.

MR. DAVIDE.

That is right, Madam President.

Thank you Madam President. I propose to substitute the entire Section 2 with the following:

MS. AQUINO.

xxx xxx xxx

Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the
legislature the process or the requirement of determining the mechanics of amending
the Constitution by people's initiative?

MR. DAVIDE.

MR. SUAREZ.
The matter of implementing this could very well be placed in the hands of the National
Assembly, not unless we can incorporate into this provision the mechanics that would
adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to
AMEND not to REVISE the Constitution; thus:
MR. SUAREZ.
. . . This proposal was suggested on the theory that this matter of initiative, which came about
because of the extraordinary developments this year, has to be separated from the traditional
modes of amending the Constitution as embodied in Section 1. The committee members felt
that this system of initiative should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on Amendment or
Revision. 34
xxx xxx xxx
MS. AQUINO.
In which case, I am seriously bothered by providing this process of initiative as a separate
section in the Article on Amendment. Would the sponsor be amenable to accepting an

Madam President, I have modified the proposed amendment after taking into account the
modifications submitted by the sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of
the proposed Section 2 will now read as follows:
"SEC. 2. AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION
OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED
BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

PROVIDE

FOR

THE

MR. SUAREZ.
Madam President, considering that the proposed amendment is reflective of the sense
contained in Section 2 of our completed Committee Report No. 7, we accept the proposed
amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that
it was a legislative act which must implement the exercise of the right. Thus:

11

MR. ROMULO.
Under Commissioner Davide's amendment, is it possible for the legislature to set forth
certain procedures to carry out the initiative . . .?
MR. DAVIDE.
It can.
xxx xxx xxx
MR. ROMULO.
But the Commissioner's amendment does not prevent the legislature from asking another
body to set the proposition in proper form.
MR. DAVIDE.
The Commissioner is correct. In other words, the implementation of this particular right
would be subject to legislation, provided the legislature cannot determine anymore the
percentage of the requirement.
MR. ROMULO.
But the procedures, including the determination of the proper form for submission to the
people, may be subject to legislation.
MR. DAVIDE.
As long as it will not destroy the substantive right to initiate. In other words, none of the
procedures to be proposed by the legislative body must diminish or impair the right conceded
here.
MR. ROMULO.
In that provision of the Constitution can the procedures which I have discussed be
legislated?

No, it does not, because "amendments" and "revision" should be covered by Section 1. So
insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on legislation. Thus:
MR. DAVIDE.
A distinction has to be made that under this proposal, what is involved is an amendment to
the Constitution. To amend a Constitution would ordinarily require a proposal by the
National Assembly by a vote of three-fourths; and to call a constitutional convention would
require a higher number. Moreover, just to submit the issue of calling a constitutional
convention, a majority of the National Assembly is required, the import being that the
process of amendment must be made more rigorous and difficult than probably initiating an
ordinary legislation or putting an end to a law proposed by the National Assembly by way of
a referendum. I cannot agree to reducing the requirement approved by the Committee on the
Legislative because it would require another voting by the Committee, and the voting as
precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by
way of an amendment, when the Commission shall take up the Article on the Legislative or
on the National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final version,
which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE.
Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO
THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION
SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION
OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.

MR. DAVIDE.
Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to NOT REVISION of the Constitution. Thus:
MR. DAVIDE.
With pleasure, Madam President.
MR. MAAMBONG.
My first question: Commissioner Davide's proposed amendment on line 1 refers to
"amendment." Does it not cover the word "revision" as defined by Commissioner Padilla
when he made the distinction between the words "amendments" and "revision"?
MR. DAVIDE.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE

IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. 40

FOR

THE

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July
1986. 41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article
was again approved on Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended by changing
"percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second
paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation of the
exercise of this right. 44This amendment was approved and is the text of the present second paragraph
of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section
2 of Article XVII of the Constitution is not self-executory.

12

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A.
No. 6735.

The Congress 45 shall by law provide for the implementation of the exercise of this right.

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not
provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires,
among other things, statement of the proposed law sought to be enacted, approved or rejected, amended
or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions
of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph
(c) reads in full as follows: cda

with

(c) The petition shall state the following:

The Congress shall provide for the implementation of the exercise of this right.

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended
or repealed, as the case may be;

There is, of course, no other better way for Congress to implement the exercise of the right than through
the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment
by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then
reading:

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be carried
out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of
Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497, 47 which
dealt with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of
the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject matter of House Bill No.
497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and
initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely
dealt with initiative and referendum concerning ordinances or resolutions of local government units. The
Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a
draft bill, which was subsequently approved on 8 June 1989 by the Senate 50 and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest
an initiative on amendments to the Constitution. The said section reads:
SEC. 2. Statement and Policy. The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed.
(Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither
germane nor relevant to said section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on
the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to
AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject, in
whole or in part, the Constitution" through the system of initiative. They can only do so with respect
to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of
Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and
appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52

c.2 the proposition;

c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition. (Emphasis
supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or repealed"
only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to
the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for
Local Initiative and Referendum (Subtitle III), no subtitle is provided forinitiative on the Constitution.
This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right
of the people to directly propose amendments to theConstitution is far more important than the initiative
on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under
the subtitle on National Initiative and Referendum because it is national in scope. Our reading of
Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on the scope of the initiative involved, but
on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to be
adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This
classification of initiative into national and local is actually based on Section 3 of the Act, which we
quote for emphasis and clearer understanding:
SEC. 3. Definition of Terms
xxx xxx xxx
There are three (3) systems of initiative, namely:

13

a.1 Initiative on the Constitution which refers to a petition proposing amendments to

the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation;
and

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of
general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

As regards local initiative, the Act provides for the following:

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on
amendments to the Constitution. 53

(a) The preliminary requirement as to the number of signatures of registered voters for the
petition;

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane
to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c)
of Section 9, which reads:

(b) The submission of the petition to the local legislative body concerned;

(b) The proposition in an initiative on the Constitution approved by the majority of the votes
cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of
the power of initiative as a consequence thereof;
(d) The formulation of the proposition;

(c) A national or local initiative proposition approved by majority of the votes cast in an
election called for the purpose shall become effective fifteen (15) days after certification and
proclamation of the Commission. (Emphasis supplied).

(e) The period within which to gather the signatures;

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative
bodies of local governments; thus:

(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have been
obtained;

SEC. 11. Indirect Initiative. Any duly accredited people's organization, as defined by law,
may file a petition for indirect initiative with the House of Representatives, and other
legislative bodies. . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for
both national and local initiative and referendum.

(f) The persons before whom the petition shall be signed;

(h) The setting of a date by the COMELEC for the submission of the proposition to the
registered voters for their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and
referendum. It reads:
SEC. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the proper
courts from declaring null and void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local legislative body to enact the said
measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to
the Constitution. Anent the initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the
petition;
(b) The conduct and date of the initiative;

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative
on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution may be
approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of
voters who should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. R.A. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to
the Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its
lacunae on this substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to
promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. 58

(c) The submission to the electorate of the proposition and the required number of votes for
its approval;

14

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim:potestas
delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of
the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of
the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate
rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in
every case of permissible delegation, there must be a showing that the delegation itself is valid. It is
valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out,
or implemented by the delegate; and (b) fixes a standard the limits of which are sufficiently
determinate and determinable to which the delegate must conform in the performance of his
functions. 61 A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which the
legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably
failed to satisfy both requirements in subordinate legislation. The delegation of the power to the
COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO
THECONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement
the exercise of the right of the people to directly propose amendments to the Constitution through the
system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's
power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations
referred to therein are those promulgated by the COMELEC under (a) Section 3 of Article IX-C of
the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to
implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin
Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b)of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters of

which every legislative district is represented by at least 3% of the registered voters therein. The Delfin
Petition does not contain signatures of the required number of voters. Delfin himself admits that he has
not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be deemed validly
initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The
only participation of the COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; 63 (2) to issue through its Election Records and Statistics Office a
certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through its
election registrars, in the establishment of signature stations; 65 and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and voters'
identification cards used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have
been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order
directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the
COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time,
energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits
of elective national and local officials is an amendment to, and not a revision of, the Constitution is
rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a
sufficient law shall have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not
tarry any longer in complying with the constitutional mandate to provide for the implementation of the
right of the people under that system. cdll

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;
b) DECLARING R. A. No. 6735 inadequate to cover the system of initiative on amendments
to the Constitution, and to have failed to provide sufficient standard for subordinate
legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to
the Constitution; and

15

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition

(UND-96-037).
The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
||| (Defensor Santiago v. COMELEC, G.R. No. 127325, [March 19, 1997])

KILUSANG MAYO UNO represented by its Secretary General Joel

Maglunsod, HEAD represented by its Secretary General Dr. Gene Alzona
Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito
Cabillas, MIGRANTE represented by its Chairperson Concepcion
Bragas-Regalado, GABRIELA represented by its Secretary General
Emerenciana de Jesus, GABRIELA WOMEN'S PARTY represented by
Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented by
Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of
Concerned Professionals and Businessmen, DR. DARBY SANTIAGO of
the Solidarity of Health Against Charter Change, DR. REGINALD
PAMUGAS of Health Action for Human Rights, intervenors.

LORETA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA

THERESA HONTIVEROS-BARAQUEL, intervenors.

LUWALHATI RIACASA ANTONINO, intervenor.

ARTURO M. DE CASTRO, intervenor.

EN BANC
[G.R. No. 174153. October 25, 2006.]
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH
6,327,952 REGISTERED VOTERS, petitioners, vs. THE COMMISSION
ON ELECTIONS,respondent.

TRADE UNION CONGRESS OF THE PHILIPPINES, intervenor.

LUWALHATI RICASA ANTONINO, intervenor.

PHILIPPINE CONSTITUTION ASSOCIATION

(PHILCONSA),
CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, intervenors.

ALTERNATIVE LAW GROUPS, INC., intervenor.

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO
BAYA, intervenors.
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE and CARLOS P. MEDINA, JR., intervenors.

PHILIPPINE
TRANSPORT
ORGANIZATION
(PTGWO)
BALAIS, intervenors.

AND
and

GENERAL
WORKERS
MR.
VICTORINO
F.

ATTY. PETE QUIRINO QUADRA, intervenor.

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo,

BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca,

SENATE OF THE PHILIPPINES, represented by its President,

MANUEL VILLAR, JR., intervenor.

16

SULONG BAYAN MOVEMENT FOUNDATION, INC., intervenor.

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA

A.
LAT,
ANTONIO
L.
SALVADOR,
and
RANDALL
TABAYOYONG, intervenors.

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU

PROVINCE CHAPTERS, intervenors.

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and

SENATORS SERGIO R. OSMEA III, JAMBY MADRIGAL, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO LACSON, intervenors.

JOSEPH EJERCITO
PILIPINO, intervenors.

ESTRADA

and

PWERSA

NG

MASANG

5(b) and (c) 2 and Section 7 3 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA
6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at
least twelve per centum (12%) of all registered voters, with each legislative district represented by at
least three per centum (3%) of its registered voters. The Lambino Group also claimed that COMELEC
election registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
Article VI (Legislative Department) 4 and Sections 1-4 of Article VII (Executive Department) 5 and by
adding Article XVIII entitled "Transitory Provisions." 6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino Group
prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF
THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT
FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A
UNICAMERAL-PARLIAMENTARY
SYSTEM,
AND
PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative. 7

[G.R. No. 174299. October 25, 2006.]

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE
A.V. SAGUISAG, petitioners, vs. COMMISSION ON ELECTIONS,
represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A.
TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO
NICODEMO T. FERRER, and John Doe and Peter Doe, respondents.

DECISION

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's
petition for lack of an enabling law governing initiative petitions to amend the Constitution. The
COMELEC invoked this Court's ruling in Santiago v. Commission on Elections 8 declaring RA
6735 inadequate to implement the initiative clause on proposals to amend the Constitution. 9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus
to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC to give due
course to their initiative petition. The Lambino Group contends that the COMELEC committed grave
abuse of discretion in denying due course to their petition since Santiago is not a binding precedent.
Alternatively, the Lambino Group claims that Santiago binds only the parties to that case, and their
petition deserves cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC
Commissioners to show cause why they should not be cited in contempt for the COMELEC's
verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent
injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention.

CARPIO, J p:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on
Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups 1 and individuals, commenced gathering signatures
for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group filed
a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under Section

In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the
petitioners, urging the Court to grant the petition despite the Santiagoruling. The Solicitor General
proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to implement
the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or opposing the
Lambino Group's petition. The supporting intervenors 10 uniformly hold the view that the COMELEC
committed grave abuse of discretion in relying on Santiago. On the other hand, the opposing
intervenors 11 hold the contrary view and maintain that Santiago is a binding precedent. The opposing
intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the
signature gathering and verification process; (3) the Lambino Group's compliance with the minimum

17

requirement for the percentage of voters supporting an initiative petition under Section 2, Article XVII
of the 1987 Constitution; 12 (4) the nature of the proposed changes as revisions and not mere
amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino
Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative petitions to
only one subject. ACETIa
The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the
parties' memoranda, the Court considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2,
Article
XVII
of
the Constitution on
amendments
to
the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and
conditions" to implement the initiative clause on proposals to
amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying
due course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisitSantiago, as the present petition
warrants dismissal based alone on the Lambino Group's glaring failure to comply with the basic
requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse of
discretion is attributable to the Commission on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on
Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a
people's initiative to propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed
by the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters of which every legislative
district must be represented by at least three per centum of the registered voters
therein. . . . . (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to
propose a constitutional amendment. Is the draft of the proposed
constitutional amendment ready to be shown to the people when they are
asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and
shown to them before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft
shown to them and they are asked whether or not they want to propose
this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal
and pass it around for signature. 13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The
framers plainly stated that "before they sign there is already a draft shown to them." The framers
also "envisioned" that the people should sign on the proposal itself because the proponents must
"prepare that proposal and pass it around for signature."
The essence of amendments "directly proposed by the people through initiative upon a petition" is
that the entire proposal on its face is a petition by the people. This means two essential elements
must be present. First, the people must author and thus sign the entire proposal. No agent or
representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be
embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first shown to
the people who express their assent by signing such complete proposal in a petition. Thus, an
amendment is "directly proposed by the people through initiative upon a petition" only if the
people sign on a petition that contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the petition, or attached
to it. If so attached, the petition must state the fact of such attachment. This is an assurance that every
one of the several millions of signatories to the petition had seen the full text of the proposed
amendments before signing. Otherwise, it is physically impossible, given the time constraint, to prove
that every one of the millions of signatories had seen the full text of the proposed amendments before
signing.
The framers of the Constitution directly borrowed 14 the concept of people's initiative from the United
States where various State constitutions incorporate an initiative clause. In almost all States 15 which
allow initiative petitions, the unbending requirement is that the people must first see the full text of
the proposed amendments before they sign to signify their assent, and that the people must sign on
an initiative petition that contains the full text of the proposed amendments. 16
The rationale for this requirement has been repeatedly explained in several decisions of various courts.
Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts, affirmed by the
First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying
the signature has not first seen what it is that he or she is signing. Further,
and more importantly, loose interpretation of the subscription requirement can
pose a significant potential for fraud. A person permitted to describe orally the
contents of an initiative petition to a potential signer, without the signer having
actually examined the petition, could easily mislead the signer by, for example,
omitting, downplaying, or even flatly misrepresenting, portions of the petition

18

that might not be to the signer's liking. This danger seems particularly acute
when, in this case, the person giving the description is the drafter of the
petition, who obviously has a vested interest in seeing that it gets the
requisite signatures to qualify for the ballot. 17 (Boldfacing and
underscoring supplied)
Likewise, in Kerr v. Bradbury, 18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative
commonly are described in similar terms. . . . (The purpose of the full text
requirement is to provide sufficient information so that registered voters
can intelligently evaluate whether to sign the initiative petition."); . . .
(publication of full text of amended constitutional provision required because it
is "essential for the elector to have . . . the section which is proposed to be
added to or subtracted from. If he is to vote intelligently, he must have this
knowledge. Otherwise in many instances he would be required to vote in the
dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed" and failure to do so is "deceptive and misleading" which renders the
initiative void. 19
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the
full text of the proposed amendments. However, the deliberations of the framers of
our Constitution clearly show that the framers intended to adopt the relevant American jurisprudence on
people's initiative. In particular, the deliberations of the Constitutional Commission explicitly
reveal that the framers intended that the people must first see the full text of the proposed
amendments before they sign, and that the people must sign on a petition containing such full text .
Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino
Group invokes as valid, requires that the people must sign the "petition . . . as signatories." cADTSH
The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials. The proponents are not disinterested
parties who can impartially explain the advantages and disadvantages of the proposed amendments to
the people. The proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay those who gather the
signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements in gathering
the signatures. The proponents bear the burden of proving that they complied with the constitutional
requirements in gathering the signatures that the petition contained, or incorporated by
attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that the
people signed as their initiative petition. The Lambino Group submitted to this Court a copy of
a signature sheet 20 after the oral arguments of 26 September 2006 when they filed their Memorandum
on 11 October 2006. The signature sheet with this Court during the oral arguments was the signature
sheet attached 21 to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete
Quirino-Quadra.

Verified
Legislative District: Barangay: Signatures:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF
THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII
AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO
ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which
shall form part of the petition for initiative to amend theConstitution signifies my support for the
filing thereof.
There is not a single word, phrase, or sentence of text of the Lambino Group's
proposed changes in the signature sheet. Neither does the signature sheet state that the text
of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during
the oral arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from the BicameralPresidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the signature
sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution envisioned
when they formulated the initiative clause in Section 2, Article XVII of theConstitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to
August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the
Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When
asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed
his answer and stated that what his group circulated was the draft of the 30 August 2006 amended
petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006
amended petition almost seven months earlier in February 2006 when they started gathering
signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August 2006 petition,
as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my
personal capacity as a registered voter, for and on behalf of the Union of
Local Authorities of the Philippines, as shown by ULAP Resolution No.
2006-02 hereto attached, and as representative of the mass of signatories
hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines" 22 has posted the
full text of Resolution No. 2006-02, which provides:

The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the
Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full:
Province: City/Municipality: No. of

RESOLUTION NO. 2006-02

19

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S

CONSULTATIVE
COMMISSION
ON
CHARTER
CHANGE
THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE
OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the
Philippines (ULAP) to adopt a common stand on the approach to support the
proposals of the People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional reforms as
embodied in the ULAP Joint Declaration for Constitutional Reforms signed by
the members of the ULAP and the majority coalition of the House of
Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change
created by Her Excellency to recommend amendments to the
1987 Constitution has submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in
Congress which militates against the use of the expeditious form of amending
the 1987Constitution;
WHEREAS, subject to the ratification of its institutional members and the
failure of Congress to amend the Constitution as a constituent assembly, ULAP
has unanimously agreed to pursue the constitutional reform agenda through
People's Initiative and Referendum without prejudice to other pragmatic means
to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED,
THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S
INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on
14 January 2006 at the Century Park Hotel, Manila. 23 (Underscoring
supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006
petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution No.
2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter
Change through people's initiative and referendum as a mode of amending the 1987 Constitution." The
proposals of the Consultative Commission 24 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the
COMELEC.
For example, the proposed revisions of the Consultative Commission affect all provisions of the
existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions have
profound impact on the Judiciary and the National Patrimony provisions of the existing Constitution,
provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's proposed

changes purport to affect only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the
filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC.
However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused
the circulation of the draft petition, together with the signature sheets, six months before the filing with
the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino
Group's claim that they circulated the draft petition together with the signature sheets. ULAP
Resolution No. 2006-02 does not refer at all to the draft petition or to the Lambino Group's
proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group
declared:
After the Petition was filed, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more specifically, paragraph 3 of Section 4
and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately
stated and failed to correctly reflect their proposed amendments. AaDSEC
The Lambino Group did not allege that they were amending the petition because the amended
petition was what they had shown to the people during the February to August 2006 signaturegathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC that they circulated printed copies of the draft petition together with the
signature sheets. Likewise, the Lambino Group did not allege in their present petition before this Court
that they circulated printed copies of the draft petition together with the signature sheets. The signature
sheets do not also contain any indication that the draft petition is attached to, or circulated with, the
signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first
claimed that they circulated the "petition for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic)
fraud, a signer who did not read the measure attached to a referendum
petition cannot question his signature on the ground that he did not
understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan,
224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the
signature sheets circulated together with the petition for initiative filed
with the COMELEC below, are presumed to have understood the proposition
contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for initiative filed with
the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the Philippines
(Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that the signature
sheets did not contain the text of the proposed changes. In their Consolidated Reply, the Lambino Group
alleged that they circulated "the petition for initiative" but failed to mention the amended petition.
This contradicts what Atty. Lambino finally stated during the oral arguments that what they circulated
was the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not
read the measure attached to a referendum petition cannot question his signature on the ground that
he did not understand the nature of the act." The Lambino Group quotes an authority that cites

20

a proposed changeattached to the petition signed by the people. Even the authority the Lambino
Group quotes requires that the proposed change must be attached to the petition. The same authority the
Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with,
or attached to, the initiative petition signed by the people. In the present initiative, the Lambino Group's
proposed changes were not incorporated with, or attached to, the signature sheets. The Lambino Group's
citation of Corpus Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August
2006 during the signature-gathering period, the draft of the petition or amended petition they filed later
with the COMELEC. The Lambino Group are less than candid with this Court in their belated claim that
they printed and circulated, together with the signature sheets, the petition or amended
petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during
the signature-gathering period, the Lambino Group admitted circulating only very limited
copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies
of the draft petition they filed more than six months later with the COMELEC. Atty. Lambino
added that he also asked other supporters to print additional copies of the draft petition but he could not
state with certainty how many additional copies the other supporters printed. Atty. Lambino could only
assure this Court of the printing of 100,000 copies because he himself caused the printing of these
100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group
expressly admit that "petitioner Lambino initiated the printing and reproduction of 100,000
copies of the petition for initiative . . . ." 25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show the full text of the proposed
changes to the great majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one
copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and
company attached one copy of the petition to each signature sheet, only 100,000 signature sheets could
have circulated with the petition. Each signature sheet contains space for ten signatures. Assuming ten
people signed each of these 100,000 signature sheets with the attached petition, the maximum number
of people who saw the petition before they signed the signature sheets would not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature
sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million
signatories the full text of the proposed changes. If ever, not more than one million signatories saw
the petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes,
either on the face of the signature sheets, or as attachment with an indication in the signature sheet of
such attachment. Petitioner Atty. Lambino admitted this during the oral arguments, and this
admission binds the Lambino Group. This fact is also obvious from a mere reading of the
signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in the
signature sheets renders the initiative void for non-compliance with the constitutional requirement that
the amendment must be "directly proposed by the people through initiative upon a petition." The
signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full
text of the proposed changes before signing. They could not have known the nature and effect of the
proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus
members of Parliament can be re-elected indefinitely; 26
2. The interim Parliament can continue to function indefinitely until its
members, who are almost all the present members of Congress,
decide to call for new parliamentary elections. Thus, the members
of the interim Parliament will determine the expiration of their
own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or
revisions to theConstitution. 28
These three specific amendments are not stated or even indicated in the Lambino Group's signature
sheets. The people who signed the signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial. The people could not have inferred
or divined these proposed changes merely from a reading or rereading of the contents of the signature
sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people
during the signature-gathering that the elections for the regular Parliament would be held during
the 2007 local elections if the proposed changes were ratified before the 2007 local elections. However,
the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition,
states:
Section 5(2). The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials. . . . .
(Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously
with the 2007 local elections. This section merely requires that the elections for the regular
Parliament shall be held simultaneously with the local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have
easily written the word "next" before the phrase "election of all local government officials." This would
have insured that the elections for the regular Parliament would be held in the next local elections
following the ratification of the proposed changes. However, the absence of the word "next" allows the
interim Parliament to schedule the elections for the regular Parliament simultaneously with any future
local elections. CDISAc
Thus, the members of the interim Parliament will decide the expiration of their own term of office. This
allows incumbent members of the House of Representatives to hold office beyond their current threeyear term of office, and possibly even beyond the five-year term of office of regular members of the
Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group to the
6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3
million signatories, and even the entire nation.

21

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full
text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3
million signatories had to rely on the verbal representations of Atty. Lambino and his group because
the signature sheets did not contain the full text of the proposed changes. The result is a grand
deception on the 6.3 million signatories who were led to believe that the proposed changes would
require the holding in 2007 of elections for the regular Parliament simultaneously with the local
elections.
The Lambino Group's initiative springs another surprise on the people who signed the signature sheets.
The proposed changes mandate the interim Parliament to make further amendments or revisions to
the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or revisions of,
thisConstitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court
and the people should simply ignore it. Far from being a surplusage, this provision invalidates the
Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling
when the initiative petition incorporates an unrelated subject matter in the same petition. This puts the
people in a dilemma since they can answer only either yes or no to the entire proposition, forcing them
to sign a petition that effectively contains two propositions, one of which they may find unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only
the unrelated subject matter. Thus, in Fine v. Firestone, 29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes
"logrolling," which, if our judicial responsibility is to mean anything, we
cannot permit. The very broadness of the proposed amendment amounts to
logrolling because the electorate cannot know what it is voting on the
amendment's proponents' simplistic explanation reveals only the tip of the
iceberg. . . . . The ballot must give the electorate fair notice of the proposed
amendment being voted on. . . . . The ballot language in the instant case fails to
do that. The very broadness of the proposal makes it impossible to state what it
will affect and effect and violates the requirement that proposed amendments
embrace only one subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine, 30 the Supreme
Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems
that the single-subject rule was enacted to prevent are exacerbated. There is a
greater danger of logrolling, or the deliberate intermingling of issues to
increase the likelihood of an initiative's passage, and there is a greater
opportunity for "inadvertence, stealth and fraud" in the enactment-byinitiative process. The drafters of an initiative operate independently of any
structured or supervised process. They often emphasize particular provisions of
their proposition, while remaining silent on other (more complex or less
appealing) provisions, when communicating to the public. . . . Indeed,
initiative promoters typically use simplistic advertising to present their
initiative to potential petition-signers and eventual voters. Many voters will

never read the full text of the initiative before the election. More importantly,
there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from the
legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be
undertaken by the interim Parliament as a constituent assembly. The people who signed the signature
sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to
the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to
amend or revise again the Constitution within 45 days from ratification of the proposed changes, or
before the May 2007 elections. In the absence of the proposed Section 4(4), the interim Parliament has
the discretion whether to amend or revise again the Constitution. With the proposed Section 4(4), the
initiative proponents want the interim Parliament mandated to immediately amend or revise again
the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or revising again so
soon the Constitution. The signature sheets do not also explain what specific amendments or revisions
the initiative proponents want the interim Parliament to make, and why there is a need for such further
amendments or revisions. The people are again left in the dark to fathom the nature and effect of
the proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the
people do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August
2006. The proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of
Parliament until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the
interim Parliament does not schedule elections for the regular Parliament by 30 June 2010.
However, there is no counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June 2007, three years earlier than
that of half of the present Senators. Thus, all the present members of the House will remain
members of the interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all
the powers of the President. If the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010, the Prime Minister will come only from the present members of the House
of Representatives to theexclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3 million people
who signed the signature sheets could not have known that their signatures would be used to
discriminate against the Senators. They could not have known that their signatures would be used
to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of
the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the people the full text of
the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the
people. That is why the Constitution requires that an initiative must be "directly proposed by the
people . . . in a petition" meaning that the people must sign on a petition that contains the full text of

22

the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of
the text of the proposed amendments cannot be hidden from the people under a general or special
power of attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to the Constitution.
This Court trusts the wisdom of the people even if the members of this Court do not personally know
the people who sign the petition. However, this trust emanates from a fundamental assumption: the
full text of the proposed amendment is first shown to the people before they sign the petition, not
after they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply
with the requirement of Section 2, Article XVII of the Constitutionthat the initiative must be "directly
proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the Constitution and
not to its revision. In contrast, Congress or a constitutional convention can propose both amendments
and revisions to the Constitution. Article XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members,
or CcTIDH
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed
by the people through initiative . . . . (Emphasis supplied)

initiative upon petition of at least ten percent of the registered

voters.
This completes the blanks appearing in the original Committee Report No. 7.
This proposal was suggested on the theory that this matter of initiative, which
came about because of the extraordinary developments this year, has to be
separated from the traditional modes of amending the Constitution as
embodied in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution and should
not extend to the revision of the entire Constitution, so we removed it from
the operation of Section 1 of the proposed Article on Amendment or
Revision. . . . .
xxx xxx xxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative
as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul of
the Constitution. That was the sense that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include the
process of revision; whereas, the process of initiation to amend, which is
given to the public, would only apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the
Committee.

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is
through Congress upon three-fourths vote of all its Members. The second mode is through a
constitutional convention. The third mode is through a people's initiative.

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or
revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode, applies
only to "[A]mendments to this Constitution." This distinction was intentional as shown by the
following deliberations of the Constitutional Commission:

MR. MAAMBONG: My first question: Commissioner Davide's proposed

amendment on line 1 refers to "amendments." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that
pursuant to the mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of the
complete committee report. With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru

xxx xxx xxx

MR. DAVIDE: No, it does not, because "amendments" and "revision"

should be covered by Section 1. So insofar as initiative is concerned, it can
only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you. 31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear
distinction between "amendment" and "revision" of the Constitution. The framers intended, and wrote,
that only Congress or a constitutional convention may propose revisions to the Constitution.
The framers intended, and wrote, that a people's initiative may propose only amendments to
the Constitution. Where the intent and language of the Constitution clearly withhold from the people the

23

power to propose revisions to the Constitution, the people cannot propose revisions even as they are
empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v.
Jordan, 32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to
the Constitution . . . applies only to the proposing and the adopting or
rejecting of 'laws and amendments to the Constitution' and does not
purport to extend to a constitutional revision. . . . . It is thus clear that a
revision of the Constitution may be accomplished only through ratification by
the people of a revised constitution proposed by a convention called for that
purpose as outlined hereinabove. Consequently if the scope of the proposed
initiative measure (hereinafter termed 'the measure') now before us is so broad
that if such measure became law a substantial revision of our present
state Constitution would be effected, then the measure may not properly be
submitted to the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner should issue. . . . .
(Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling: 33
It is well established that when a constitution specifies the manner in which it
may be amended or revised, it can be altered by those who favor amendments,
revision, or other change only through the use of one of the specified means.
The constitution itself recognizes that there is a difference between an
amendment and a revision; and it is obvious from an examination of the
measure here in question that it is not an amendment as that term is generally
understood and as it is used in Article IV, Section 1. The document appears to
be based in large part on the revision of the constitution drafted by the
'Commission for Constitutional Revision' authorized by the 1961 Legislative
Assembly, . . . and submitted to the 1963 Legislative Assembly. It failed to
receive in the Assembly the two-third's majority vote of both houses required
by Article XVII, Section 2, and hence failed of adoption, . . . .
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the
present constitution . . . .
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can
be submitted to the people through the initiative. If a revision, it is subject to
the requirements of Article XVII, Section 2(1); if a new constitution, it can
only be proposed at a convention called in the manner provided in Article
XVII, Section 1. . . . .

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There can
be no deviation from the constitutionally prescribed modes of revising the Constitution. A popular
clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific modes
prescribed in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364: 34

It is a fundamental principle that a constitution can only be revised or
amended in the manner prescribed by the instrument itself, and that any
attempt to revise a constitution in a manner other than the one provided
in the instrument is almost invariably treated as extra-constitutional and
revolutionary. . . . . "While it is universally conceded that the people are
sovereign and that they have power to adopt a constitution and to change their
own work at will, they must, in doing so, act in an orderly manner and
according to the settled principles of constitutional law. And where the people,
in adopting a constitution, have prescribed the method by which the people
may alter or amend it, an attempt to change the fundamental law in violation of
the self-imposed restrictions, is unconstitutional." . . . . (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its
solemn oath and duty to insure compliance with the clear command of the Constitution that a
people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or revision of
the Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition
should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of a constitution. One
of the earliest cases that recognized the distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and
abiding nature, and the provisions contained therein for its revision indicate
the will of the people that the underlying principles upon which it rests, as
well as the substantial entirety of the instrument, shall be of a like
permanent and abiding nature. On the other hand, the significance of the term
"amendment" implies such an addition or change within the lines of the
original instrument as will effect an improvement, or better carry out the
purpose for which it was framed. 35 (Emphasis supplied) CDISAc
Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects substantial
provisions of theconstitution. On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved. Revision generally affects several
provisions of the constitution, while amendment generally affects only the specific provision being
amended.
In California where the initiative clause allows amendments but not revisions to the constitution just like
in our Constitution, courts have developed a two-part test: the quantitative test and the qualitative test.
The quantitative test asks whether the proposed change is "so extensive in its provisions as to change
directly the 'substantial entirety' of the constitution by the deletion or alteration of numerous existing
provisions." 36 The court examines only the number of provisions affected and does not consider the
degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The
main inquiry is whether the change will "accomplish such far reaching changes in the nature of our
basic governmental plan as to amount to a revision." 37 Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic governmental
plan" includes "change in its fundamental framework or the fundamental powers of its Branches." 38 A

24

change in the nature of the basic governmental plan also includes changes that "jeopardize the
traditional form of government and the system of check and balances." 39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles
Article VI on the Legislature and Article VII on the Executive affecting a total of 105 provisions in
the entire Constitution. 40Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the three great coequal branches of government in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a
Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and
executive branches is a radical change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters the separation
of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone of one
chamber of Congress alters the system of checks-and-balances within the legislature and constitutes a
revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a UnicameralParliamentary system, involving the abolition of the Office of the President and the abolition of one
chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the
Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the
framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable
provisions. The guiding original intention of an amendment is to improve
specific parts or to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have become obsolete or
that are judged to be dangerous. In revision, however, the guiding original
intention and plan contemplates a re-examination of the entire document, or of
provisions of the document which have over-all implications for the entire
document, to determine how and to what extent they should be altered. Thus,
for instance a switch from the presidential system to a parliamentary
system would be a revision because of its over-all impact on the entire
constitutional structure. So would a switch from a bicameral system to a
unicameral system be because of its effect on other important provisions
of the Constitution. 41 (Emphasis supplied)
In Adams v. Gunter, 42 an initiative petition proposed the amendment of the Florida
State constitution to shift from a bicameral to a unicameral legislature. The issue turned on whether
the initiative "was defective and unauthorized where [the] proposed amendment would . . . affect several
other provisions of [the]Constitution." The Supreme Court of Florida, striking down the initiative as
outside the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to
provide for a Unicameral Legislature affects not only many other provisions
of theConstitution but provides for a change in the form of the legislative
branch of government, which has been in existence in the United States
Congress and in all of the states of the nation, except one, since the earliest
days. It would be difficult to visualize a more revolutionary change. The
concept of a House and a Senate is basic in the American form of

government. It would not only radically change the whole pattern of

government in this state and tear apart the whole fabric of
the Constitution, but would even affect the physical facilities necessary to
carry on government.
xxx xxx xxx
We conclude with the observation that if such proposed amendment were
adopted by the people at the General Election and if the Legislature at its next
session should fail to submit further amendments to revise and clarify the
numerous inconsistencies and conflicts which would result, or if after
submission of appropriate amendments the people should refuse to adopt them,
simple chaos would prevail in the government of this State. The same result
would obtain from an amendment, for instance, of Section 1 of Article V, to
provide for only a Supreme Court and Circuit Courts-and there could be other
examples too numerous to detail. These examples point unerringly to the
answer.
The purpose of the long and arduous work of the hundreds of men and women
and many sessions of the Legislature in bringing about the Constitution of
1968 was to eliminate inconsistencies and conflicts and to give the State a
workable, accordant, homogenous and up-to-date document. All of this could
disappear very quickly if we were to hold that it could be amended in the
manner proposed in the initiative petition here. 43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to
merge the executive and legislative departments. The initiative in Adams did not even touch the
executive department.

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would
be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's present
initiative, no less than 105 provisions of the Constitution would be affected based on the count of
Associate Justice Romeo J. Callejo, Sr. 44 There is no doubt that the Lambino Group's present initiative
seeks far more radical changes in the structure of government than the initiative inAdams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of
procedure, not of substance. The Lambino Group posits that when a deliberative body drafts and
proposes changes to the Constitution, substantive changes are called "revisions" because members of
the deliberative body work full-time on the changes. However, the same substantive changes, when
proposed through an initiative, are called "amendments" because the changes are made by ordinary
people who do not make an "occupation, profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions
expressly provide for both "amendment" and "revision" when it speaks of
legislators and constitutional delegates, while the same provisions expressly
provide only for "amendment" when it speaks of the people. It would seem that
the apparent distinction is based on the actual experience of the people, that on
one hand the common people in general are not expected to work full-time on
the matter of correcting theconstitution because that is not their occupation,

25

profession or vocation; while on the other hand, the legislators and

constitutional convention delegates are expectedto work full-time on the same
matter because that is their occupation, profession or vocation. Thus, the
difference between the words "revision" and "amendment" pertain only
to the process or procedure of coming up with the corrections, for purposes
of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and
"revision" cannot reasonably be in the substance or extent of the
correction. . . . . (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same
proposed changes that the Lambino Group wrote in the present initiative, the changes would constitute a
revision of the Constitution. Thus, the Lambino Group concedes that the proposed changes in the
present initiative constitute a revision if Congress or a constitutional convention had drafted the
changes. However, since the Lambino Group as private individuals drafted the proposed changes, the
changes are merely amendments to the Constitution. The Lambino Group trivializes the serious matter
of changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the Lambino
Group's theory. Where the intent of the framers and the language of the Constitution are clear and
plainly stated, courts do not deviate from such categorical intent and language. 45 Any theory espousing
a construction contrary to such intent and language deserves scant consideration. More so, if such theory
wreaks havoc by creating inconsistencies in the form of government established in the Constitution.
Such a theory, devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution,
only exposes the flimsiness of the Lambino Group's position. Any theory advocating that a proposed
change involving a radical structural change in government does not constitute a revision justly deserves
rejection.
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling, 46the Supreme Court of
Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to
the constitution proposed by initiative. His theory is that Article XVII,
section 2 merely provides a procedure by which the legislature can
propose a revision of the constitution, but it does not affect proposed
revisions initiated by the people. AcaEDC
Plaintiffs argue that the proposed ballot measure constitutes a wholesale
change to the constitution that cannot be enacted through the initiative process.
They assert that the distinction between amendment and revision is determined
by reviewing the scope and subject matter of the proposed enactment, and that
revisions are not limited to "a formal overhauling of the constitution." They
argue that this ballot measure proposes far reaching changes outside the lines
of the original instrument, including profound impacts on existing fundamental
rights and radical restructuring of the government's relationship with a defined
group of citizens. Plaintiffs assert that, because the proposed ballot measure
"will refashion the most basic principles of Oregon constitutional law," the trial
court correctly held that it violated Article XVII, section 2, and cannot appear
on the ballot without the prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not
prohibit revisions instituted by initiative. In Holmes v. Appling, . . ., the

Supreme Court concluded that a revision of the constitution may not be

accomplished by initiative, because of the provisions of Article XVII, section
2. After reviewing Article XVII, section1, relating to proposed amendments,
the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes
the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use
as a means of revising the constitution." . . . .
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is
the only section of the constitution which provides the means for constitutional
revision and it excludes the idea that an individual, through the initiative, may
place such a measure before the electorate." . . . .
Accordingly, we reject Mabon's argument that Article XVII, section 2,
does not apply to constitutional revisions proposed by initiative. (Emphasis
supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express intent of
the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the
other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in
determining whether there is an amendment or revision. The present initiative is indisputably located at
the far end of the red spectrum where revision begins. The present initiative seeks a radical overhaul of
the existing separation of powers among the three co-equal departments of government, requiring farreaching amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without affecting any
other section or article, the change may generally be considered an amendment and not a revision. For
example, a change reducing the voting age from 18 years to 15 years 47 is an amendment and not a
revision. Similarly, a change reducing Filipino ownership of mass media companies from 100 percent to
60 percent is an amendment and not a revision. 48 Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an amendment and not a revision. 49
The changes in these examples do not entail any modification of sections or articles of
the Constitution other than the specific provision being amended. These changes do not also affect the
structure of government or the system of checks-and-balances among or within the three branches.
These three examples are located at the far green end of the spectrum, opposite the far red end where the
revision sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a
single word of one sentence of the Constitution may be a revision and not an amendment. For example,
the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1, Article II 50 of
the Constitutionradically overhauls the entire structure of government and the fundamental ideological
basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending
on how it affects other provisions, as well as how it affects the structure of government, the carefully
crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a constitution,
a deliberative body with recorded proceedings is best suited to undertake a revision. A revision
requires harmonizing not only several provisions, but also the altered principles with those that remain
unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or
constitutional conventions to undertake revisions. On the other hand, constitutions allow people's

26

initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to
undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of
the 1987Constitution which shall hereby be amended and Sections 18 and 24
which shall be deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case,
they shall be amended to conform with a unicameral parliamentary form
of government; . . . . (Emphasis supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior
law, the later law prevails. This rule also applies to construction of constitutions. However, the Lambino
Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of construction by
stating that in case of such irreconcilable inconsistency, the earlier provision "shall be amended to
conform with a unicameral parliamentary form of government." The effect is to freeze the two
irreconcilable provisions until the earlier one "shall be amended," which requires a future separate
constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded
during the oral arguments that the requirement of a future amendment is a "surplusage." In short, Atty.
Lambino wants to reinstate the rule of statutory construction so that the later provision automatically
prevails in case of irreconcilable inconsistency. However, it is not as simple as that.

3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2,
Article XVII of the Constitution on the conduct and scope of a people's initiative to amend
the Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA
6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of
initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome
of the present petition. Thus, this Court must decline to revisit Santiago which effectively ruled that RA
6735 does not comply with the requirements of the Constitution to implement the initiative clause on
amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the
Court can be resolved on some other grounds. Such avoidance is a logical consequence of the wellsettled doctrine that courts will not pass upon the constitutionality of a statute if the case can be resolved
on some other grounds. 51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on
initiatives to amend the Constitution, this will not change the result here because the present petition
violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative
must first comply with Section 2, Article XVII of the Constitution even before complying with RA
6735. IATSHE
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an
initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of
registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign the
"petition . . . as signatories."

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not
between a provision in Article VI of the 1987 Constitution and a provision in the proposed changes. The
inconsistency is between a provision in Article VI of the 1987 Constitution and the "Parliamentary
system of government," and the inconsistency shall be resolved in favor of a "unicameral
parliamentary form of government."

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and
Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L. Lambino
and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act
"together with" the 6.3 million signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the COMELEC did not even
comply with the basic requirement of RA 6735 that the Lambino Group claims as valid.

Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed
changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are among
the few countries with unicameral parliaments? The proposed changes could not possibly refer to the
traditional and well-known parliamentary forms of government the British, French, Spanish,
German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did
the people who signed the signature sheets realize that they were adopting the Bangladeshi,
Singaporean, Israeli, or New Zealand parliamentary form of government?

The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be submitted to the electorate; . . . ." The proposed
Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further
amendments or revisions to theConstitution, is a subject matter totally unrelated to the shift in the form
of government. Since the present initiative embraces more than one subject matter, RA 6735prohibits
submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino
Group's initiative will still fail.

This drives home the point that the people's initiative is not meant for revisions of the Constitution but
only for amendments. A shift from the present Bicameral-Presidential to a Unicameral-Parliamentary
system requires harmonizing several provisions in many articles of the Constitution. Revision of
the Constitution through a people's initiative will only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to
this Constitution."

4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this
Court's ruling in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v.
COMELEC. 52 For following this Court's ruling, no grave abuse of discretion is attributable to the
COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court
should reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion
could be attributed to the public respondent COMELEC in dismissing the
petition filed by PIRMA therein, it appearing that it only complied with the

27

dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on

March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all
the citizens of this nation. No one can trivialize the Constitutionby cavalierly amending or revising it in
blatant violation of the clearly specified modes of amendment and revision laid down in
the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be
tossed and turned by every dominant political group of the day. If this Court allows today a cavalier
change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant
political group that comes will demand its own set of changes in the same cavalier and unconstitutional
fashion. A revolving-door constitution does not augur well for the rule of law in this country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast 53
approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the
unmistakable voice of the people, the full expression of the people's sovereign will. That approval
included the prescribed modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group,
can change our Constitution contrary to the specific modes that the people, in their sovereign capacity,
prescribed when they ratified the Constitution. The alternative is an extra-constitutional change, which
means subverting the people's sovereign will and discarding the Constitution. This is one act the
Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to
perform its solemn duty to defend and protect the Constitution, which embodies the real sovereign will
of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the
specific modes of changing the Constitution as prescribed in theConstitution itself. Otherwise,
the Constitution the people's fundamental covenant that provides enduring stability to our society
becomes easily susceptible to manipulative changes by political groups gathering signatures through
false promises. Then, the Constitution ceases to be the bedrock of the nation's stability.
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.
This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution,
which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend and
protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively
gathered signatures, to alter basic principles in the Constitution is to allow a desecration of
the Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre.

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

SO ORDERED.

||| (Lambino v. COMELEC, G.R. No. 174153, 174299, , [October 25, 2006])EN BANC
[G.R. No. L-34150. October 16, 1971.]
ARTURO M. TOLENTINO, petitioner, vs. COMMISSION ON ELECTIONS, and THE CHIEF
ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE 1971
CONSTITUTIONAL CONVENTION, respondents, RAUL S. MANGLAPUS, JESUS G.
BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B. FERNAN,
JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and JUAN V. BORRA,
intervenors.
Arturo M. Tolentino in his own behalf.
Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional
Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971
Constitutional Convention.
Intervenors in their own behalf.
SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; DETERMINATION OF PROPER ALLOCATION
OF POWERS IN GOVERNMENT. As early as Angara vs. Electoral Commission (63 Phil. 139,
157), this Court speaking through one of the leading members of the Constitutional Convention and a
respected professor of Constitutional Law, Dr. Jose P. Laurel declared that "the judicial department is
the only constitutional organ which can called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof."
2. CONSTITUTIONAL LAW; AMENDMENTS TO CONSTITUTION; POWER TO AMEND OR
PROPOSE AMENDMENTS VESTED IN THE PEOPLE. The power to amend the Constitution or to
propose amendments thereto is not included in the general grant of legislative powers to Congress
(Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent powers of the people is
the repository of sovereignty in a republican state, such as ours (Section 1, Art. II, Constitution of the
Philippines) to make, and, hence, to amend their own Fundamental Law.
3. ID.; ID.; ID.; CONGRESS, AS CONSTITUENT ASSEMBLY ALSO EMPOWERED TO PROPOSE
AMENDMENTS. Congress may propose amendments to the Constitution merely because the same
explicitly grants such power (Sec. 1, Art. XV. Constitution of the Philippines). Hence, when exercising
the same, it is said that Senators and members of the House of Representatives act, not as members of
Congress, but as component elements of a constituent assembly. When acting as such, the members of
Congress derive their authority from the Constitution, unlike the people, when performing the same
function, (Of amending the Constitution) for their authority does not emanate from the Constitution
they are the very source of all powers of government, including the Constitution itself .
4. ID.; ID.; ID.; ID.; CONSTITUTIONALITY OF ACTS, JUSTICIABLE, NOT POLITICAL
QUESTION. The issue whether or not a Resolution of Congress acting as a constituent assembly
violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial review,
and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez Vito,
(supra) the latter should be deemed modified accordingly. The Members of the Court are unanimous on
this point.

28

5. ID.; ID.; ID.; ID.; EFFECTIVITY OF PROPOSED AMENDMENTS DEPENDENT ON PEOPLE'S

RATIFICATION. True it is that once convened, the Constitutional Convention became endowed with
extraordinary powers generally beyond the control of any department of the existing government, but
the compass of such powers can be co-extensive only with the purpose for which the convention was
called and as it is self-evident that the amendments it may propose cannot have any effect as part of the
Constitution until the same are duly ratified by the people, it necessarily follows that the acts of the
convention, its officers and members are not immune from attack on constitutional grounds. The present
Constitution is in full force and effect in its entirely and in everyone of its parts, the existence of the
Convention notwithstanding, and operates even within the walls of that assembly.
6. ID.; ID.; ID.; ID.; EXTENT THEREOF. While it is indubitable that in its internal operation and
the performance of its task to propose amendments to the Constitution it is not subject to any degree of
restraint or control by any other authority than itself, it is equally beyond cavil that neither the
Convention nor any of its officers or members can rightfully deprive any person of life, liberty or
property without due process of law, deny to anyone in this country the equal protection of the laws or
the freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution.
Nor, for that matter, can such Convention validly pass any resolution providing for the taking of private
property without just compensation or for the imposition or exacting of any tax, impost, or assessment,
or declare war or call the Congress to a special session, suspend the privilege of the writ of habeas
corpus, pardon a convict or render judgment in a controversy between private individuals or between
such individuals and the state, in violation of the distribution of powers in the Constitution.
7. POLITICAL LAW; JUDICIARY; "JUDICIAL SUPREMACY" OR POWER OF JUDICIAL
REVIEW. When the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy" which properly is the power of judicial review under
the Constitution.
8. ID.; ID.; ID.; LIMITATIONS. This power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its
functions is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency
of legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice
of the people as expressed through their representatives in the executive and legislative departments of
the government.
9. POLITICAL LAW; ELECTORAL COMMISSION; POWER AND LIMITATIONS THEREOF.
The Electoral Commission, is a constitutional organ, created for a specific purpose, namely, to
determine all contests resulting to the elections, returns and qualifications of the members of the
National Assembly. Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional
mechanism adopted by die people and that it is not subject to constitutional restriction. The Electoral
Commission is not a separate department of the government, and even if it were, conflicting claims of
authority under the fundamental law between departmental powers and agencies of the government are
necessarily determined by the judiciary in justiciable and appropriate cases.

10. CONSTITUTIONAL LAW; SECTION 1, ARTICLE XV OF CONSTITUTION; CONGRESS AS

CONSTITUENT ASSEMBLY; PROPOSED AMENDMENTS, SUBJECT TO RATIFICATION BY
PEOPLE; ONLY ONE ELECTION TO BE HELD THEREFOR. The language of Section 1 of
Article XV of the Constitution is sufficiently clear. It says distinctly that either Congress sitting as a
constituent assembly or a convention called for the purpose "may propose amendments to this
Constitution," thus placing no limit as to the number of amendments that Congress or the Convention
may propose. The same provision also as definitely provides that "such amendments shall be valid as
part of the this Constitution when approved by a majority of the votes cast as an election at which the
amendments are submitted to the people for their ratification," thus leaving no room for doubt as to how
many "elections" or plebiscites may be held to ratify any amendment or amendments proposed by the
same constituent assembly of Congress or convention, and the provision unequivocally says "an
election" which means only one.
REYES, J.B.L., ZALDIVAR, RUIZ CASTRO and MAKASIAR, JJ., concurring:
1. CONSTITUTIONAL LAW; AMENDMENTS TO CONSTITUTION; REQUIREMENTS FOR
PROPER SUBMISSION THEREOF TO PEOPLE. Amendments must be fairly laid before the
people for their blessing or spurning. The people are not to be mere rubber stamps. They are not to vote
blindly. They must be afforded ample opportunity to mull over the original provisions, compare them
with the proposed amendments, and to reach a conclusion as the dictates of their conscience suggest,
free from the incubus of extraneous or possibly insidious influences. We believe the word "submitted"
can only mean that the government, within its maximum capabilities, should strain every efforts to
inform every citizen of the provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. By this, we are not to be understood as saying that, if one citizen or 100
citizens cannot be reached, then there is no submission within the meaning of the word as intended by
the framers of the Constitution. What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or agency within its
structural framework to enlighten the people, educate them with respect to their act of ratification or
rejection. For as we have earlier stated, one thing is submission and another is ratification. There must
be fair submission, intelligent consent or rejection.

FERNANDO, J., concurring and dissenting:

1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; CONSTITUTIONAL CONVENTION, NOT
SOVEREIGN IN CHARACTER. It does not thereby follow that while free from legislative control,
a constitutional convention may lay claim to an attribute sovereign in character. The Constitution is
quite explicit that it is to the people, and to the people alone, in whom sovereignty resides. Such a
prerogative is therefore withheld from a convention. It is an agency entrusted with the responsibility of
high import and significance, it is true; it is denied unlimited legal competence though. That is what
sovereignty connotes. It has to yield to the superior force of the Constitution. There can then be no basis
for the exaggerated pretension that it is an alter ego of the people.
2. ID.; ID.; ID.; AUTONOMY IN PROPOSING CONSTITUTIONAL AMENDMENTS. The view
that commends itself for acceptance is that legislature and constitutional convention, aliked recognized
by the Constitution, are coordinate, there being no superiority of one over the other. Insofar as the
constituent power of proposing amendments to the Constitution is concerned, a constitutional
convention enjoys a wide sphere of autonomy consistently with the Constitution which can be the only
source of valid restriction on its competence. It is true it is to the legislative body that the call to a
convention must proceed, but once convened, it cannot in any wise be interfered with, much less
controlled by Congress. A contrary conclusion would impair its usefulness for the delicate and

29

paramount task assigned to it. A convention then is to be looked upon as if it were one of the three
coordinate departments which under the principle of separation of powers is supreme within its field and
has exclusive cognizance of matters properly subject to its jurisdiction.
3. STATUTORY CONSTRUCTION, RULES OF GRAMMAR NOT DULY RELIABLE IN
CONSTITUTIONAL INTERPRETATION. No undue reliance should be accorded rules of grammar;
they do not exert a compelling force in constitutional interpretation. Meaning is to be sought not from
specific language in the singular but from the mosaic of significance derived from the total context. It
could be, if it were not thus, self-defeating. Such a mode of construction does not commend itself. The
words used in the Constitution are not inert; they derive vitality from the obvious purposes at which
they are aimed.
DECISION

assembly convened for the purpose of calling a convention to propose amendments to the Constitution,
namely, Resolutions 2 and 4 of the joint sessions of Congress held on March 16, 1967 and June 17,
1969, respectively. The delegates to the said Constitution were all elected under and by virtue of said
resolutions and the implementing legislation thereof, Republic Act 6132. The pertinent portions of
Resolution No. 2 read as follows:
"SECTION 1. There is hereby called a convention to propose amendments to the Constitution of the
Philippines, to be composed of two elective Delegates from each representative district who shall have
the same qualifications as those required of Members of the House of Representatives.
xxx xxx xxx
"SECTION 7. The amendments proposed by the Convention shall be valid and considered part of the
Constitution when approved by a majority of the votes cast in an election at which they are submitted to
the people for their ratification pursuant to Article XV of the Constitution."

BARREDO, J p:
Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional amendment
"reducing the voting age" in Section 1 of Article V of the Constitution of the Philippines to eighteen
years "shall be submitted" for ratification by the people pursuant to Organic Resolution No. 1 of the
Constitutional Convention of 1971, and the subsequent implementing resolutions, by declaring said
resolutions to be without the force and effect of law in so far as they direct the holding of such plebiscite
and by also declaring the acts of the respondent Commission (COMELEC) performed and to be done by
it in obedience to the aforesaid Convention resolutions to be null and void, for being violative of the
Constitution of the Philippines.
As a preliminary step, since the petition named as respondent only the COMELEC, the Court required
that copies thereof be served on the Solicitor General and the Constitutional Convention, through its
President, for such action as they may deem proper to take. In due time, respondent COMELEC filed its
answer joining issues with petitioner. To further put things in proper order, and considering that the
fiscal officers of the Convention are indispensable parties in a proceeding of this nature, since the acts
sought to be enjoined involve the expenditure of funds appropriated by law for the Convention, the
Court also ordered that the Disbursing Officer, Chief Accountant and Auditor of the Convention be
made respondents. After the petition was so amended, the first appeared thru Senator Emmanuel Pelaez
and the last two thru Delegate Ramon Gonzales. All said respondents, thru counsel, resist petitioner's
action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel, their
interests would be adequately protected already, the Court had to limit the number of intervenors from
the ranks of the delegates to the Convention who, more or less, have legal interest in the success of the
respondents, and so, only Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor
de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B.
Borra, all distinguished lawyers in their own right, have been allowed to intervene jointly. The Court
feels that with such an array of brilliant and dedicated counsel, all interests involved should be duly and
amply represented and protected. At any rate, notwithstanding that their corresponding motions for
leave to intervene or to appear as amicus curiae 1 have been denied, the pleadings filed by the other
delegates and some private parties, the latter in representation of their minor children allegedly to be
affected by the result of this case are with the records and the Court acknowledges that they have not
been without value as materials in the extensive study that has been undertaken in this case.
The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by
virtue of two resolutions of the Congress of the Philippines approved in its capacity as a constituent

Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces
fixed originally in Resolution No. 2.
After the election of the delegates held on November 10, 1970, the Convention held its inaugural
session on June 1, 1971. Its preliminary labors of election of officers, organization of committees and
other preparatory works over, as its first formal proposal to amend the Constitution, its session which
began on September 27, 1971, or more accurately, at about 3:30 in the morning of September 28, 1971,
the Convention approved Organic Resolution No. 1 reading thus:
"CC ORGANIC RESOLUTION NO. 1
"A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION OF THE
PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18.
"BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
"Section 1. Section One of Article V of the Constitution of the Philippines is amended to as follows:
"Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise disqualified by
law, who are (twenty-one) EIGHTEEN years or over and are able to read and write, and who shall have
resided in the Philippines for one year and in the municipality wherein they propose to vote for at least
six months preceding the election.'
"Section 2. This amendment shall be valid as part of the Constitution of the Philippines when approved
by a majority of the votes cast in a plebiscite to coincide with the local elections in November 1971.
"Section 3. This partial amendment, which refers only to the age qualification for the exercise of
suffrage shall be without prejudice to other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended Section or on other portions of the entire
Constitution.
"Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings or from
its unexpended funds for the expense of the advanced plebiscite; provided, however that should there be
no savings or unexpended sums, the Delegates waive P250.00 each or the equivalent of 2-1/2 days per
diem.'"
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec
"to help the Convention implement (the above) resolution." The said letter reads:

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"September 28, 1971

"The Committee on Plebiscite and Ratification filed a report on the progress of the implementation of
the plebiscite in the afternoon of October 7, 1971, enclosing copies of the order, resolution and letters of
transmittal above referred to (Copy of the report is hereto attached as Annex 8-Memorandum)

"The Commission on Elections

"RECESS RESOLUTION
Manila
Thru the Chairman

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:

"In its plenary session in the evening of October 7, 1971, the Convention approved a resolution authored
by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of the Convention from November
1, 1971 to November 9, 1971 to permit the delegates to campaign for the ratification of Organic
Resolution No. 1. (Copies of the resolution and the transcript of debate thereon are hereto attached as
Annexes 9 and 9-A Memorandum, respectively).

xxx xxx xxx

"RESOLUTION CONFIRMING IMPLEMENTATION

(see above)

"On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose Ozamiz
confirming the authority of the President of the Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee ratifying all acts performed in connection with said
implementation."

Gentlemen:

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the Constitutional
Convention Act of 1971, may we call upon you to help the Convention implement this resolution:
Sincerely,
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL
President"
On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will
hold the plebiscite on condition that:
"(a) The Constitutional Convention will undertake the printing of separate official ballots, election
returns and tally sheets for the use of said plebiscite at its expense;
"(b) The Constitutional Convention will adopt its own security measures for the printing and shipment
of said ballots and election forms; and

"(c) Said official ballots and election forms will be delivered to the Commission in time so that they
could be distributed at the same time that the Commission will distribute its official and sample ballots
to be used in the elections on November 8, 1971."
What happened afterwards may best be stated by quoting from intervenors' statement of the genesis of
the above proposal:
"The President of the Convention also issued an order forming an Ad Hoc Committee to implement the
Resolution.
"This Committee issued implementing guidelines which were approved by the President who then
transmitted them to the Commission on Elections.

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and effect as
laws in so far as they provide for the holding of a plebiscite co incident with the elections of eight
senators and all city, provincial and municipal Officials to be held on November 8, 1971, hence all of
Comelec's acts in obedience thereof and tending to carry out the holding of the plebiscite directed by
said resolutions are null and void, on the ground that the calling and holding of such a plebiscite is, by
the Constitution, a power lodged exclusively in Congress, as a legislative body, and may not be
exercised by the Convention, and that, under Section 1, Article XV of the Constitution, the proposed
amendment in question cannot be presented to the people for ratification separately from each and all of
the other amendments to be drafted and proposed by the Convention. On the other hand, respondents
and intervenors posit that the power to provide for, fix the date and lay down the details of the plebiscite
for the ratification of any amendment the Convention may deem proper to propose is within the
authority of the Convention as a necessary consequence and part of its power to propose amendments
and that this power includes that of submitting such amendments either individually or jointly at such
time and manner as the Convention may direct in its discretion. The Court's delicate task now is to
decide which of these two poses is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend
that the issue before Us is a political question and that the Convention being a legislative body of the
highest order is sovereign, and as such, its acts impugned by petitioner are beyond the control of the
Congress and the courts. In this connection, it is to be noted that none of the respondent has joined
intervenors in this posture. In fact, respondents Chief Accountant and Auditor of the Convention,
expressly concede the jurisdiction of this Court in their answer acknowledging that the issue herein is a
justiciable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case
of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided
in their opinions as to the other matters therein involved, were precisely unanimous in upholding its
jurisdiction. Obviously, distinguished counsel have either failed to grasp the full impact of the portions
of Our decision they have quoted or would misapply them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those
of a constitutional convention called for the purpose of proposing amendments to the Constitution,

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which concededly is at par with the former. A simple reading of Our ruling in that very case of Gonzales
relied upon by intervenors should dispel any lingering misgivings as regards that point. Succinctly but
comprehensively, Chief Justice Concepcion held for the Court thus:
"As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court speaking through one
of the leading members of the Constitutional Convention and a respected professor of Constitutional
Law, Dr. Jose P. Laurel declared that 'the judicial department is the only constitutional organ which
can be called upon to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof.'
"It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted thereto as
a political one, declined to pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution which was being submitted to the
people for ratification satisfied the three-fourths vote requirement of the fundamental law. The force
of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil:
818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1943), Taada v. Cuenco, (L-10520, Feb. 28, 1957)
and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In the first we held that the officers
and employees of the Senate Electoral Tribunal are under its supervision and control, not of that of the
Senate President, as claimed by the latter; in the second, this Court proceeded to determine the number
of Senators necessary for quorum in the Senate; in the third, we nullified the election, by Senators
belonging to the party having the largest number of votes in said chamber, purporting to act, on behalf
of the party having the second largest number of votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the representatives districts for the House of
Representatives, upon the ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus we rejected the theory, advanced in these
four (4) cases that the issues therein raised were political questions the determination of which is beyond
judicial review.
"Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the
general grant of legislative powers to Congress (Section 1. Art. VI, Constitution of the Philippines). It is
part of the inherent powers of the people as the repository sovereignty in a republican state, such as
ours (Section 1, Art, II, Constitution of the Philippines) to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely because the same
explicitly grants such power. (Section 1, Art. XV, Constitution of the Philippines) Hence, when
exercising the same it is said that Senators and members of the House of Representatives act, not as
members of Congress, but as component elements of a constituent assembly. When acting as such, the
members of Congress derive their authority from the Constitution, unlike the people, when performing
the same function, (Of amending the Constitution) for their authority does not emanate from the
Constitution they are the very source of all powers of government including the Constitution itself .
"Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of
Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have
the final say on whether or not their acts are within or beyond constitutional limits. Otherwise. they
could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of
laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower courts.) the power
to declare a treaty unconstitutional. (Sec. 2 (1), Art. VIII of the Constitution), despite the eminently
political character of treaty-making power.
"In short, the issue whether or not a Resolution of Congress acting as a constituent assembly
violates the Constitution is essentially justiciable not political, and, hence, subject to judicial review,
and, to the extent that this view may be inconsistent with the stand taken in Mabanag v. Lopez Vito,

(supra) the latter should be deemed modified accordingly. The Members of the Court are unanimous on
this point."
No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that the
Constitutional Convention of 1971, as any other convention of the same nature, owes its existence and
derives all its authority and power from the existing Constitution of the Philippines. This Convention
has not been called by the people directly as in the case of a revolutionary convention which drafts the
first Constitution of an entirely new government born of either a war of liberation from a mother
country or of a revolution against an existing government or of a bloodless seizure of power a la coup
d'etat. As to such kind of conventions, it is absolutely true that the convention is completely without
restrain and omnipotent all wise, and it is as to such conventions that the remarks of Delegate Manuel
Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer. No amount of
rationalization can belie the fact that the current convention came into being only because it was called
by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1,
Article XV of the present Constitution which provides:

"ARTICLE XV AMENDMENTS
"SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the Members of
the Senate and of the House of Representatives voting separately. may propose amendments to this
Constitution or call a convention for the purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification."
True it is that once convened, this Convention became endowed with extraordinary powers generally
beyond the control of any department of the existing government, but the compass of such powers can
be co-extensive only with the purpose for which the convention was called and as it may propose cannot
have any effect as part of the Constitution until the same are duly ratified by the people, it necessarily
follows that the acts of convention, its officers and members are not immune from attack on
constitutional grounds. The present Constitution is in full force and effect in its entirety and in everyone
of its parts, the existence of the Convention notwithstanding, and operates even within the walls of that
assembly. While it is indubitable that in its internal operation and the performance of its task to propose
amendments to the Constitution it is not subject to any degree of restraint or control by any other
authority than itself, it is equally beyond cavil that neither the Convention nor any of its officers or
members can rightfully deprive any person of life, liberty or property without due process of law, deny
to anyone in this country the equal protection of the laws or the freedom of speech and of the press in
disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such Convention
validly pass any resolution providing for the taking of private property without just compensation or for
the imposition or exacting of any tax, import or assessment, or declare war or call the Congress to a
special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render judgment
in a controversy between private individuals or between such individuals and the state, in violation of
the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert, much
less exercise, in the light of the existing Constitution, the simple question arises, should an act of the
Convention be assailed by a citizen as being among those not granted to or inherent in it, according to
the existing Constitution, who can decide whether such a contention is correct or not? It is of the very
essence of the rule of law that somehow somewhere the power and duty to resolve such a grave

32

constitutional question must be lodged on some authority, or we would have to confess that the
integrated system of government established by our founding fathers contains a wide vacuum no
intelligent man could ignore, which is naturally unworthy of their learning, experience and craftmanship
in constitution-making.
We need not go far in search for the answer to the query We have posed. The very decision of Chief
Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reenforces the
irrefutable logic and wealth of principle in the opinion written for a unanimous Court by Justice Laurel
in Angara vs. Electoral Commission, 63 Phil., 134, reading:
". . . (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The overlapping
and interlacing of functions and duties between the several departments, however, sometimes makes it
hard to say where the one leaves off and the other begins. In times of social disquietude or political
excitement, the great landmark of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several departments and among
the integral or constituent units thereof.
"As any human production our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under a system of check and
balances and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment and the principles of good government mere political apothegms.
Certainly the limitations and restrictions embodied in our Constitution are real as they should be in any
living Constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its historical origin
and development there. has been set at rest by popular acquiescence for a period of more than one and
half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from
section 2 of Article VIII of our Constitution.
"The Constitution is a definition of the powers or government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is in truth all
that is involved in what is termed 'judicial supremacy' which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its
functions is in this manner the judiciary does not pass upon questions of wisdom, justice or expediency
of legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice

of the people as expressed through their representatives in the executive and legislative departments of
the government.
"But much as we might postulate on the internal checks of power provided in our Constitution, it ought
not the less to be remembered that. in the language of James Madison, the system itself is not 'the chief
palladium of constitutional liberty.. the people who are authors of this blessing must also be its
guardians.. their eyes must be ever ready to mark, their voices to pronounce. . . aggression on the
authority of their Constitution.' In the last and ultimate analysis then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
"In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935, confirmed the
election of the herein petitioner to the said body. On the other hand. the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against
the election, returns and qualifications of members of the National Assembly; notwithstanding the
Previous confirmations made by the National Assembly as aforesaid. If, as contended by the petitioner,
the resolution of the National Assembly has the effect of cutting off the power of the Electoral
Commission to entertain protests against the election, returns and qualifications of members of the
National Assembly, submitted after December 3, 1935 then the resolution of the Electoral Commission
of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the
Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date
as the last day for filing protests against the election, returns and qualifications of members of the
National Assembly, should be upheld.
"Here is then presented an actual controversy involving as it does a conflict of a grave constitutional
nature between the National Assembly on the one hand and the Electoral Commission on the other.
From the very nature of the republican government established in our country in the light of American
experience and of our own, upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely, to determine all contests relating to the election, returns and qualifications of the
members of the National Assembly. Although the Electoral Commission may not be interfered with,
when and while acting within the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the People and that it is not subject to constitutional restriction.
The Electoral Commission is not a separate department of the government, and even if it were,
conflicting claims of authority under the fundamental law between departmental powers and agencies of
the government are necessarily determined by the judiciary in justiciable and appropriate cases.
Discarding the English type and other European types of constitutional government, the framers of our
Constitution adopted the American type where the written constitution is interpreted and given effect by
the judicial department. In some countries which have declined to follow the American example,
provisions have been inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in
the absence of direct prohibition, courts are bound to assume what is logically their function. For
instance, the Constitution of Poland of 1921 expressly provides that courts shall have no power to
examine the validity of statutes (art. 81, Chap. IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitution are silent in this respect, courts have assumed this power.
This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3,
Preliminary Law to Constitutional Charter of the Czechoslovak, Republic, February 29, 1920) and Spain
(arts. 121-123, Title IX, Constitution of the Republic of 1931) especial constitutional courts are
established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy
shows the necessity of a final constitutional arbiter to determine the conflict of authority between two
agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will

33

determine the conflict? And if the conflict were left undecided and undetermined, would not a void be
thus created in our constitutional system which may in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle, reason, and authority, we are clearly of the
opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject matter of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as 'the sole judge of
all contests relating to the election, returns and qualifications of the members of the National Assembly."

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates
just quoted do not apply only to conflicts of authority between the three existing regular departments of
the government but to all such conflicts between and among these departments, or, between any of
them, on the one hand, and any other constitutionally created independent body, like the electoral
tribunals in Congress, the Comelec and the constituent assemblies constituted by the House of Congress,
on the other. We see no reason of logic or principle whatsoever, and none has been convincingly shown
to Us by any of the respondents and intervenors, why the same ruling should not apply to the present
Convention, even if it is an assembly of delegates elected directly by the people, since at best, as already
demonstrated, it has been convened by authority of and under the terms of the present Constitution.
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present
case. It goes without saying that We do this not because the Court is superior to the Convention or that
the Convention is subject to the control of the Court, but simply because both the Convention and the
Court are subject to the Constitution and the rule of law, and "upon principle, reason and authority," per
Justice Laurel, supra, it is within the power, as it is the solemn duty of the Court, under the existing
Constitution to resolve the issues in which petitioner, respondents and intervenors have joined in this
case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own fiat. the holding of a plebiscite for the
ratification of the proposed amendment reducing to eighteen years the age for the exercise of suffrage
under Section 1 of Article V of the Constitution proposed in the Convention's Organic Resolution No. 1
in the manner and form provided for in said resolution and the subsequent implementing acts and
resolution of the Convention?
At the threnold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has very
clearly stated that he is not against the constitutional extension of the right of suffrage to the eighteenyear-olds, as a matter of fact, he has advocated or sponsored in Congress such a proposal, and that, in
truth, the herein petition is not intended by him to prevent that the proposed amendment here involved
be submitted to the people for ratification, his only purpose in filing the petition being to comply with
his sworn duty to prevent, whenever he can, any violation of the Constitution of the Philippines even if
it is committed in the course of or in connection with the most laudable undertaking. Indeed, as the
Court sees it, the specific question raised in this case is limited solely and only to the point of whether or
not it is within the power of the Convention to call for a plebiscite for the ratification by the people of
the constitutional amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and
form provided in said resolution as well as in the subsequent implementing actions and resolution of the
Convention and its officers, at this juncture of its proceedings, when, as it is a matter of common
knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the preliminary

stages of considering other reforms or amendments affecting other parts of the existing Constitution;
and, indeed, Organic Resolution No. 1 itself expressly provides that the amendment therein proposed
"shall be without prejudice to other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended section or on other portions of the entire
Constitution." In other words, nothing that the Court may say or do in this case should be understood as
reflecting, in any degree or means, the individual or collective stand of the members of the Court on the
fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply because
that issue is not before Us now. There should be no doubt in the mind of anyone that, once the Court
finds it constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not
blinded them to the absolute necessity, under the fundamental principles of democracy to which the
Filipino people is committed, of adhering always to the rule of law. Surely, their idealism, sincerity and
purity of purpose cannot permit any other line of conduct or approach in respect of the problem before
Us. The Constitutional Convention of 1971 itself was born, in a great measure, because of the pressure
brought to bear upon the Congress of the Philippines by various elements of the people, the youth in
particular, in their incessant search for a peaceful and orderly means of bringing about meaningful
changes in the structure and bases of the existing social and governmental institutions, including the
provisions of the fundamental law related to the well-being and economic security of the
underprivileged classes of our people as well as those concerning the preservation and protection of our
natural resources and the national patrimony, as an alternative to violent and chaotic ways of achieving
such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times have justifiably or
unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the
Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and
violence; what they really want are law and order, peace and orderliness, even in the pursuit of what
they strongly and urgently feel must be done to change the present order of things in this Republic of
ours. It would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to
allow itself in deciding this case to be carried astray by considerations other than the imperatives of the
rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger measure than
when it binds other departments of the government or any other official or entity, the Constitution
imposes upon the Court the sacred duty to give meaning and vigor to the Constitution, by interpreting
and construing its provisions in appropriate cases with the proper parties and by striking down any act
violative thereof. Here, as in all other cases, We are resolved to discharge that duty.
During these times when most anyone feels very strongly the urgent need for constitutional reforms, to
the point of being convinced that meaningful change is the only alternative to a violent revolution, this
Court would be the last to put any obstruction or impediment to the work of the Constitutional
Convention. If there are respectable sectors opining that it has not been called to supplant the existing
Constitution in its entirety, since its enabling provision, Article XV, from which the Convention itself
draws life expressly speaks only of amendments which shall form part of it, which opinion is not
without persuasive force both in principle and in logic, the seemingly prevailing view is that only the
collective judgment of its members as to what is warranted by the present condition of things, as they
see it, can limit the extent of the constitutional innovations the Convention may propose, hence the
complete substitution of the existing constitution is not beyond the ambit of the Convention's authority.
Desirable as it may be to resolve this grave divergence of views, the Court does not consider this case to
be properly the one in which it should discharge its constitutional duty in such premises. The issues
raised by petitioner, even those among them in which respondents and intervenors have joined in an
apparent wish to have them squarely passed upon by the Court do not necessarily impose upon Us the
imperative obligation to express Our views thereon. The Court considers it to be of the utmost
importance that the Convention should be untrammelled and unrestrained in the performance of its
constitutionally assigned mission in the manner and form it may conceive best, and so the Court may
step in to clear up doubts as to the boundaries set down by the Constitution only when and to the

34

specific extent only that it would be necessary to do so to avoid a constitutional crisis or a clearly
demonstrable violation of the existing Charter. Withal, it is a very familiar principle of constitutional
law that constitutional questions are to be resolved by the Supreme Court only when there is no
alternative but to do it, and this rule is founded precisely on the principle of respect that the Court must
accord to the acts of the other coordinate departments of the government, and certainly, the
Constitutional Convention stands almost in a unique footing in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came
into being by a call of a joint session of Congress pursuant to Section 1 of Article XV of the
Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to its
internal operation and the performance of its assigned mission to propose amendments to the
Constitution, the Convention and its officers and members are all subject to all the provisions of the
existing Constitution. Now We hold that even as to its latter task of proposing amendments to the
Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is
plain to Us that the framers of the Constitution took care that the process of amending the same should
not be undertaken with the same ease and facility in changing an ordinary legislation. Constitution
making is the most valued power, second to none, of the people in a constitutional democracy such as
the one our founding fathers have chosen for this nation, and which we of the succeeding generations
generally cherish. And because the Constitution affects the lives, fortunes, future and every other
conceivable aspect of the lives of all the people within the country and those subject to its sovereignty,
every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which
it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with as much care and deliberation.
From the very nature of things, the drafters of an original constitution, as already observed earlier,
operate without any limitations, restraints or inhibitions save those that they may impose upon
themselves. This is not necessarily true of subsequent conventions called to amend the original
constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as
easily mutilated or changed, not only for reasons purely personal but more importantly, because written
constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, as
long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated
against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus,
as a rule, the original constitutions carry with them limitations and conditions, more or less stringent,
made so by the people themselves, in regard to the process of their amendment. And when such
limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates
of any subsequent convention to claim that they may ignore and disregard such conditions because they
are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and nature and
the scope and extent of the amendments the Convention may deem proper to propose. Nor does the
Court propose to pass on the issue extensively and brilliantly discussed by the parties as to whether or
not the power or duty to call a plebiscite for the ratification of the amendments to be proposed by the
Convention is exclusively legislative and as such may be exercised only by the Congress or whether the
said power can be exercised concurrently by the Convention with the Congress. In the view the Court
takes of ;the present case, it does not perceive absolute necessity to resolve that question, grave and
important as it may be Truth to tell, the lack of unanimity or even of a consensus among the members of
the Court in respect to this issue creates the need for more study and deliberation, and as time is of the
essence in this case, for obvious reasons, November 8, 1971, the date set by the Convention for the
plebiscite it is calling, being nigh, We will refrain from making any pronouncement or expressing Our

views on this question until a more appropriate case comes to Us. After all, the basis of this decision is
as important and decisive as any can be.
The ultimate question, therefore, boils down to this: Is there any limitation or condition in Section 1 of
Article XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite
on the sole amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is
the condition and limitation that all the amendments to be proposed by the same Convention must be
submitted to the people in a single "election" or plebiscite. It being indisputable that the amendment
now proposed to be submitted to a plebiscite is only the first amendment the Convention will propose
We hold that the plebiscite being called for the purpose of submitting the same for ratification of the
people on November 8, 1971 is not authorized by Section 1 of Article XV of the Constitution, hence all
acts of the Convention and the respondent Comelec in that direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. It says distinctly that
either Congress sitting as a constituent assembly or a convention called for the purpose "may propose
amendments to this Constitution, "thus placing no limit as to the number of amendments that Congress
or the Convention may propose. The same provision also as definitely provides that "such amendments
shall be valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification," thus leaving no room for doubt
as to how many "elections" or plebiscites may be held to ratify any amendment or amendments
proposed by the same constituent assembly of Congress or convention, and the provision unequivocably
says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an undertaking as
constitution making itself. Indeed, any amendment of the Constitution is as important as the whole of it,
if only because the Constitution has to be an integrated and harmonious instrument, if it is to be viable
as the framework of the government it establishes, on the one hand, and adequately formidable and
reliable as the succinct but comprehensive articulation of the rights, liberties, ideology, social ideals, and
national and nationalistic policies and aspirations of the people, on the other. It is inconceivable how a
constitution worthy of any country or people can have any part which is out of tune with its other parts.
A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the
original constitution is approved, the part that the people play in its amendment becomes harder, for
when a whole constitution is submitted to them, more or less they can assume its harmony as an
integrated whole, and they can either accept or reject it in its entirety. At the very least, they can
examine it before casting their vote and determine for themselves from a study of the whole document
the merits and demerits of all or any of its parts and of the document as a whole. And so also, when an
amendment is submitted to them that is to form part of the existing constitution, in like fashion they can
study with deliberation the proposed amendment in relation to the whole existing constitution and or
any of its parts and thereby arrive at an intelligent judgment as to its acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the fact that
under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided
the voter, as to what finally will be concomitant qualifications that will be required by the final draft of
the constitution to be formulated by the Convention of a voter to be able to enjoy the right of suffrage,
there are other considerations which make it impossible to vote intelligently on the proposed
amendment, although it may already be observed that under Section 3, if a voter would favor the
reduction of the voting age to eighteen under conditions he feels are needed under the circumstances,
and he does not see those conditions in the ballot nor is there any possible indication whether they will

35

ever be or not, because Congress has reserved those for future action, what kind of judgment can he
render on the proposal?

||| (Tolentino v. COMELEC, G.R. No. L-34150, [October 16, 1971], 149 PHIL 1-40)

But the situation actually before Us is even worse. No one knows what changes in the fundamental
principles of the constitution the Convention will be minded to approve. To be more specific, we do not
have any means of foreseeing whether the right to vote would be of any significant value at all. Who can
say whether or not later on the Convention may decide to provide for varying types of voters for each
level of the political units it may divide the country into. The root of the difficulty in other words, lies in
that the Convention is precisely on the verge of introducing substantial changes, if not radical ones, in
almost every part and aspect of the existing social and political order enshrined in the present
Constitution. How can a voter in the proposed plebiscite intelligently determine the effect of the
reduction of the voting age upon the different institutions which the Convention may establish and of
which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for
an intelligent appraisal of the nature of the amendment per seas well as its relation to the other parts of
the Constitution with which it has to form a harmonious whole. In the context of the present state of
things, where the Convention has hardly started considering the merits of hundreds, if not thousands, of
proposals to amend the existing Constitution, to present to the people any single proposal or a few of
them cannot comply with this requirement. We are of the opinion that the present Constitution does not
contemplate in Section 1 of Article XV a plebiscite or "election" wherein the people are in the dark as to
frame of reference they can base their judgment on. We reject the rationalization that the present
Constitution is a possible frame of reference, for the simple reason that intervenors themselves are
stating that the sole purpose of the proposed amendment is to enable the eighteen year olds to take part
in the election for the ratification of the Constitution to be drafted by the Convention. In brief, under the
proposed plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of
the Court in Gonzales, supra, "no proper submission"
III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention.
Much less does the Court want to pass judgment on the merits of the proposal to allow these eighteen
years old to vote. But like the Convention, the Court has its own duties to the people under the
Constitution which is to decide in appropriate oases with appropriate parties whether or not the
mandates of the fundamental law are being complied with. In the best light God has given Us, we are of
the conviction that in providing for the questioned plebiscite before it has finished, and separately from,
the whole draft of the constitution it has been called to formulate, the Convention's Organic Resolution
No. 1 and all subsequent acts of the Convention implementing the same violate the condition in Section
1, Article XV that there should only be one "election" or plebiscite for the ratification of all the
amendments the Convention may propose. We are not denying any right of the people to vote on the
proposed amendment; We are only holding that under Section 1, Article XV of the Constitution, the
same should be submitted to them not separately from but together with all the other amendments to be
proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar
as they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the
respondent Comelec complying therewith (RR Resolution No. 695) are hereby declared null and void.
The respondents Comelec, Disbursing Officer, Chief Accountant and Auditor of the Constitutional
Convention are hereby enjoined from taking any action in compliance with the said organic resolution.
In view of the peculiar circumstances of this case, the Court declares this decision immediately
executory. No costs.

EN BANC
[G.R. No. L-28196. November 9, 1967.]
RAMON
A.
GONZALES, petitioner, vs. COMMISSION
ON
ELECTIONS, DIRECTOR
OF PRINTING, and AUDITOR
GENERAL, respondents.

[G.R. No. L-28224. November 9, 1967.]

PHILIPPINE
CONSTITUTION
ASSOCIATION
(PHILCONSA), petitioner, vs.
COMMISSION
ON
ELECTIONS, respondent.

No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner.
Juan T. David as amicus curiae.
Solicitor General for respondents.
No. L-28224:
Salvador Araneta for petitioner.

36

Solicitor General for respondents.

6. ID.; ID.; NO VALID APPORTIONMENT SINCE ADOPTION OF CONSTITUTION IN 1935;

EFFECT THEREOF. Since the adoption of the Constitution in 1935, Congress has not made a valid
apportionment as required in the fundamental law.
SYLLABUS

1. CONSTITUTIONAL LAW; POWER OF JUDICIAL DEPARTMENT TO DETERMINE PROPER

ALLOCATION OF POWERS BETWEEN SEVERAL DEPARTMENTS. The "Judicial department
is the only constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof" (Angara vs.
Electoral Commission, 63 Phil., 139).

7. ID.; ID.; SENATE AND HOUSE CONSTITUTED ON DECEMBER 30, 1961 WERE DE JURE
BODIES. The Senate and House of Representatives organized or constituted on December 30, 1961
were de jure bodies and the Members thereof were de jure officers.
8. ID.; ID.; FAILURE OF CONGRESS TO DISCHARGE MANDATORY DUTY. Neither our
political law, in general, nor our law on public officers, in particular, supports the view that failure to
discharge a mandatory duty, whatever it may be, would automatically result in the forfeiture of an
office, in the absence of a statute to this effect.

2. ID.; POWER TO PASS UPON VALIDITY OF CONSTITUTIONAL AMENDMENT. In Mabanag

vs. Lopez Vito, (78 Phil., 1), the Court declined to pass upon the question whether or not a given
number of votes cast in Congress in favor of a proposed amendment to the Constitution satisfied the
three-fourths vote requirement of the fundamental law, characterizing the issue as a political one. The
force of this precedent has been weakened by Suanes vs. Chief Accountant of the Senate (81 Phil. 818),
Avelino vs. Cuenco (1-12851, March 4, and 14, 1949), Taada vs. Cuenco (L-10520, Feb. 18, 1957),
and Macias vs. Commission on Elections, 58 Off. Gaz; (51) 8388. The Court rejected the theory,
advanced in these four cases, that the issues therein raised were political questions, the determination of
which, is beyond judicial review.

9. ID.; ID.; PROVISIONS OF ELECTION LAW RELATIVE TO ELECTION OF MEMBERS OF

CONGRESS IN 1965, NOT REPEALED. The provisions of our Election Law relative to the election
of Members of Congress in 1965, were not repealed in consequence of the failure of said body to make
an apportionment within three years after the census of 1960. Inasmuch as the general elections in 1965
were presumably held in conformity with said Election Law and the legal provisions creating Congress with a House of Representatives composed of members elected by qualified voters of representative
districts as they existed at the time of said elections - remained in force, we cannot see how said
Members of the House of Representatives can be regarded as de facto officers owing to the failure of
their predecessors in office to make a reapportionment within the period aforementioned.

3. ID.; NATURE OF POWER TO AMEND THE CONSTITUTION. The power to amend the
Constitution or to propose, amendments thereto is not included in the general grant of legislative powers
to Congress (Sec. 1, Art, VI, Const.) It is part of the inherent powers of the people - as the repository of
sovereignty in a republican state, such as ours (Sec. 1, Art. II, Const.) to make and hence, to amend
their own Fundamental Law. Congress may propose amendments to the Constitution merely because the
same explicit]y grants such power (Sec. 1, Art. XV, Const.). Hence, when exercising the same, it is said
that Senators and Members of the House of Representatives act, not as members of Congress, but as
component elements of a constituent assembly. When acting as such, the members of Congress derive
their authority from the Constitution, unlike the people, when performing the same function, for their
authority does not emanate from the Constitution - they are the very source of all powers of government,
including the Constitution itself.

10. ID.; DE FACTO DOCTRINE REASON THEREOF. The main reason for the existence of the de
facto doctrine is that public interest demands that acts of persons holding under color of title, an office
created by a valid statute be, likewise, deemed valid insofar as the public as distinguished from the
officer in question - is concerned (Lino Luna vs. Rodriquez, et al., 37 Phil., 192 and other cases).
Indeed, otherwise, those dealing with officers and employees of the Government would be entitled to
demand from them satisfactory proof of their title to the positions they hold, before dealing with them,
or before recognizing their authority or obeying their commands, even if they should act within the
limits of the authority vested in their respective offices, positions or employments (Torres vs. Ribo, 81
Phil., 50). One can imagine the great inconvenience, hardships and evils that would result in the absence
of the de facto doctrine.

4. ID.; POWER OF APPORTIONMENT OF CONGRESSIONAL DISTRICTS. It is not true that

Congress has not made an apportionment within three years after the enumeration or census made in
1960. It did actually pass a bill, which became Republic Act 3040 (Approved, June 17, 1961) purporting
to make said apportionment. This Act was, however, declared unconstitutional, on the ground that the
apportionment therein undertaken had not been made according to the number of inhabitants of the
different provinces of the Philippines (Macias vs. Commission on Elections, supra).
5. ID.; ID.; FAILURE OF CONGRESS TO MAKE APPORTIONMENT DID NOT MAKE
CONGRESS ILLEGAL OR UNCONSTITUTIONAL. The fact that Congress is under legal
obligation to make apportionment as required under the Constitution, does not justify the conclusion
that failure to comply with such obligation rendered Congress illegal or unconstitutional, or that its
Members have become de facto officers. The effect of the omission has been envisioned ia the
Constitution (Sec. 5, Art. VI, Const.). The provision does not support the view that, upon the expiration
of the period to make their apportionment, a Congress which falls to make it is dissolved or becomes
illegal. On the contrary it implies necessarily that Congress shall continue to function with
representative districts existing at the time of the expiration of said period.

11. ID.; ID.; TITLE OF DE FACTO OFFICER CANNOT BE ASSAILED COLLATERALLY. The
title of a de facto officer cannot be assailed collaterally (Nacionalista Party vs. De Vera, 85, Phil., 126).
It may not be contested except directly, by quo warranto proceedings.
12. ID.; ID.; VALIDITY OF ACTS OF DE FACTO OFFICER CANNOT BE ASSAILED
COLLATERALLY. Neither may the validity of his acts be questioned upon the ground that he is
merely a de facto officer (People vs. Gabitanan, 43 Off. Gaz. 3211). And the reasons are obvious: (1) it
would be an indirect inquiry into the title to toe office; and (2) the acts of a de facto officer, if within the
competence of his office, are valid, insofar as the public is concerned.
13. ID.; MEANING OF THE TERM "OR". The term "or" has, oftentimes, been held to mean "and,"
or vice-versa, when the spirit or context of the law warrants it (50 Am. Jur. 267-268).
14. ID.; POWER OF CONGRESS TO APPROVE RESOLUTIONS AMENDING THE
CONSTITUTION. There is nothing in the Constitution or in the history thereof that would negate the
authority of different Congresses to approve the contested resolutions, or of the same Congress to pass
the same in different sessions or different days of the same congressional session. Neither has any
plausible reason been advanced to justify the denial of authority to adopt said resolutions on the same
day.

37

15. ID.; MEANING OF TERM "ELECTION" IN ART. XV, CONSTITUTION. There is in this
provision nothing to indicate that the "election" therein referred to is a "special", not a general, election.
The circumstance that three previous amendments to the Constitution had been submitted to the people
for ratification in special elections merely shows that Congress deemed it best to do so under the
circumstances then obtaining. It does not negate its authority to submit proposed amendments for
ratification in general elections.
16. ID.; LEGISLATION CANNOT BE NULLIFIED FOR FAILURE OF CERTAIN SECTORS TO
DISCUSS IT SUFFICIENTLY. A legislation cannot be nullified by reason of the failure of certain
sectors of the community to discuss it sufficiently. Its constitutionality or unconstitutionality depends
upon no other factors than those existing at the time of the enactment thereof, unaffected by the acts or
omissions of law enforcing agencies, particularly those that take place subsequently to the passage or
approval of the law.
17. ID.; PUBLIC KNOWLEDGE OF PROPOSED AMENDMENTS. A considerable portion of the
people may not know how over 160 of the proposed maximum of representative districts are actually
apportioned by RBH No. 1 among the provinces in the Philippines. It is not impossible however, that
they are not interested in the detail of the apportionment, or that a careful reading thereof may tend, in
their simple minds, to impair a clear vision thereof. Upon the other hand, those who are more
sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed amendments
posted in public places, the copies kept in the polling places and the text of the contested resolutions as
printed in full on the back of the ballots they will use.
18. ID.; JUDICIAL POWER TO NULLIFY EXECUTIVE OR LEGISLATIVE ACTS, NOT
VIOLATIVE OF PRINCIPLE OF SEPARATION OF POWERS. The system of checks and balances
underlying the judicial power to strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental law is not in derogation of the principle of separation of powers,
pursuant to which each department is supreme within its own sphere.

19. ID.; DETERMINATION OF CONDITIONS FOR SUBMISSION OF AMENDMENTS TO

PEOPLE, PURELY LEGISLATIVE. The determination of the conditions under which the proposed
amendments shall be submitted to the people is concededly a matter which falls within the legislative
sphere.
MAKALINTAL, J., concurring:
1. CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; RATIFICATION BY
THE PEOPLE; SECTIONS 2 AND 4 OF REPUBLIC ACT 4913 IS SUFFICIENT COMPLIANCE
WITH THE REQUIREMENTS OF THE LAW. Considered in itself and without reference to
extraneous factors and circumstances, the manner prescribed in Sections 2 and 4 of R.A. 4913 is
sufficient for the purpose of having the proposed amendments submitted to the people for their
ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to say what else
should have been required by the Act to make it adhere more closely to the constitutional requirement.
Certainly it would have been out of place to provide, for instance, that governmental officials and
employees should go out and explain the amendments to the people, or that they should be the subject of
any particular means or form of public discussion.
2. ID., ID.; ID.; SUBMISSION OF AMENDMENTS TO THE PEOPLE AT A GENERAL ELECTION.
I reject the argument that the ratification must necessarily be in a special election or plebiscite called
for that purpose alone. While such procedure is highly to be preferred, the Constitution speaks simply of
"an election at which the amendments are submitted to the people for their ratification," and I do not

subscribe to the restrictive interpretation that the petitioners would have on this provision, namely, that
it means only a special election.
BENGZON, J.P., J., concurring:
1. CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; REPUBLIC ACT 49138.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for approval
the amendments to the Constitution of the Philippines proposed by the Congress of the Philippines in
Resolutions of both Houses Numbered 1 and 3, adopted on March 16, 1967. Said Republic Act fixes the
date and manner of the election at which the aforesaid proposed amendments shall be voted upon by the
people, and appropriates funds for said election. Resolutions of both Houses Nos. 1 and 3 propose two
amendments to the Constitution: the first, to amend Sec. 5 Art. VI, by increasing the maximum
membership of the House of Representatives from 120 to 180, apportioning 160 of said 180 seats and
eliminating the provision that Congress shall by law make an apportionment within three years after the
return of every enumeration; the second, to amend Sec. 16, Art. VI, by allowing Senators and
Representatives to be delegates to a constitutional convention without forfeiting their seats.
2. ID.; ID.; ID.; RATIFICATION BY THE PEOPLE IN A SPECIAL ELECTION FOR THE PURPOSE
NOT SPECIFICALLY REQUIRED. Nowhere in Sec. 1, Art. XV is it required that the ratification be
thru an election solely for that purpose. It only requires that it be at "an election at which the
amendments are submitted to the people for their ratification." To join it with an election for candidates
to public office, that is, to make it concurrent with such election, does not render it any less an election
at which the proposed amendments are submitted to the people for their ratification. No prohibition
being found in the plain terms of the Constitution, none should be inferred. Had the framers of the
Constitution thought of requiring a special election for the purpose only of the proposed amendments,
they could have said so, by qualifying the phrase with some word such as "special" or "solely" or
"exclusively". They did not.
3. ID.; ID.; ID.; STATUTE WHICH PROVIDES FOR HOW AND WHEN THE AMENDMENTS
ALREADY PROPOSED ARE GOING TO BE VOTED UPON AND APPROPRIATES FUNDS TO
CARRY OUT ITS PROVISIONS DOES NOT NEED THE 3/4 VOTE OF CONGRESS IN JOINT
SESSION. The submission of proposed amendments can be done thru an ordinary statute passed by
Congress. The Constitution does not expressly state by whom the submission shall be undertaken; the
rule is that a power not lodged elsewhere under the Constitution is deemed to reside with the legislative
body, under the doctrine of residuary powers. Congress therefore validly enacted Republic Act 4913 to
fix the details of the date and manner of submitting the proposed amendments to the people for their
ratification. Since it does not "propose amendments" in the sense referred to by Sec. 1, Art. XV of the
Constitution, but merely provides for how and when the amendments already proposed, are going to be
voted upon, the same does not need the 3/4 vote in joint session required in Sec. 1, Art. XV of the
Constitution. Furthermore, Republic Act 4913 is an appropriation measure. Sec. 6 thereof appropriates
P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of the Constitution states that "All
appropriation bills shall originate exclusively in the House of Representatives". Republic Act 4913,
therefore, could not have been validly adopted in a joint session, reinforcing the view that Sec. 1, Art.
XV does not apply to such a measure providing for the holding of the election to ratify the proposed
amendments, which must perforce appropriate funds for its purpose.
4. ID.; ID.; ID.; STATUTE WHICH PROVIDES SUFFICIENT OPPORTUNITY TO THE VOTERS TO
CAST AN INTELLIGENT VOTE ON THE PROPOSALS, NOT OFFENSIVE AGAINST THE DUE
PROCESS CLAUSE. Republic Act 4913 does not offend against substantive due process. An
examination of the provisions of the law shows no violation of the due process clause of the
Constitution. The publication in the Official Gazette at least 20 days before the election, the posting of
notices in public buildings not later than Oct. 14, 1967, to remain posted until after the elections, the
placing of copies of the proposed amendments in the polling places, aside from printing the same at the
back of the ballot, provide sufficient opportunity to the voters to cast an intelligent vote on the proposal.

38

Due process refers only to providing fair opportunity; it does not guarantee that the opportunity given
will in fact be availed of; that is the look out of the voter and the responsibility of the citizen. As long as
fair and reasonable opportunity to be informed is given, and it is, the due process clause is not infringed.
5. ID.; ID.; RATIFICATION OF; VOTERS TO BE SUFFICIENTLY INFORMED OF THE
PROPOSED AMENDMENTS TO INTELLIGENTLY VOTE THEREON; METHOD ADOPTED IN
THE CASE AT BAR NOT CONSTITUTIONALLY DEFECTIVE. Non-printing of the provisions to
be amended as they now stand, and the printing of the full proposed amendments at the back of the
ballot instead of the substance thereof at the face of the ballot, do not deprive the voter of fair
opportunity to be informed. The present wording of the Constitution is not being veiled or suppressed
from him; he is conclusively presumed to know them and they are available should he want to check on
what he is conclusively presumed to know. Should the voters choose to remain ignorant of the present
Constitution, the fault does not lie with Congress. For opportunity to familiarize oneself with the
Constitution as it stands has been available thru all these years. Perhaps it would have been more
convenient for the voters if the present wording of the provisions were also to be printed on the ballot.
The same however, is a matter policy. As long as the method adopted provides sufficiently reasonable
chance to intelligently vote on the amendments, and I think it does in this case, it is not constitutionally
defective.
6. ID.; LEGISLATIVE DEPARTMENT; POWER OF CONGRESS TO PROPOSE AMENDMENTS
OR CALL A CONVENTION FOR THAT PURPOSE. Sec. 1, Art. XV states that Congress "may
propose amendments or call a convention for that purpose". The term "or", however, is frequently used
as having the same meaning as "and" particularly in permissive, affirmative sentences so that the
interpretation of the word "or" as "and" in the Constitution in such use will not change its meaning
(Vicksburg, S. and P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La. 442). And it should be pointed out
that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are different from that calling for a
convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to amend the Constitution before
a convention caused for is elected, it should not be fettered from doing so. For our purposes in this case,
suffice it to note that the Constitution does not prohibit it from doing so.
7. ID.; ID.; MEMBERS OF CONGRESS; REPRESENTATION ACCORDING TO DISTRICTS;
STATUS QUO RETAINED IN THE ABSENCE OF APPORTIONMENT REQUIRED BY LAW.
Sec. 5 of Art. VI of the Constitution provides in part that "The Congress shall by law make an
apportionment within three years after the return of every enumeration, and not otherwise". It however
further states in the next sentence: "Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law for the National Assembly,
who shall be elected by the qualified electors from the present Assembly districts". The failure of
Congress, therefore, to pass a valid redistricting law since the time the above provision was adopted,
does not render the present districting illegal or unconstitutional. For the Constitution itself provides for
its continuance in such cases, rendering legal and de jure the status quo.
SANCHEZ J., concurring:
1. CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; AN EXPRESSION OF
THE PEOPLE'S SOVEREIGN WILL. A constitutional amendment is not a temporary expedient.
Unlike a statute which may suffer amendments three or more times in the same year, it is intended to
stand the test of time. It is an expression of the people's sovereign will.
2. ID.; ID.; RATIFICATION BY THE PEOPLE; SUBMISSION OF PROPOSED AMENDMENTS;
GOVERNMENT TO EXERT EFFORTS TO INFORM EVERY CITIZEN OF THE PROVISIONS TO
BE AMENDED. The words "submitted to the people for ratification", if construed in the light of the
nature of the Constitution a fundamental charter that is legislation direct from the people, an
expression of their sovereign will mean that it can only be amended by the people expressing
themselves according to the procedures ordained by the Constitution. Therefore, amendments must be

fairly laid before the people for their blessing or spurning. The people are not to be mere rubber stamps.
They are not to vote blindly. They must be afforded ample opportunity to mull over the original
provisions, compare them with the proposed amendments and try to reach a conclusion as the dictates of
their conscience suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word "submitted" can only mean that the government, within its maximum capabilities,
should strain every effort to inform every citizen of the provisions to be amended, and the proposed
amendments and the meaning, nature and effects thereof. By this, we are not to be understood as saying
that, if one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of the Constitution. What the Constitution in
effect directs is that the government, in submitting an amendment for ratification, should put every
instrumentality or agency within its structural framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For, as we have earlier stated, one thing is submission and
another is ratification. There must be fair submission, intelligent consent or rejection. If with all these
safeguards the people still approve the amendment no matter how prejudicial it is to them, then so be it.
For, the people decree their own fate.

3. ID.; ID.; ID.; ID.; NO PROPER SUBMISSION WHERE PEOPLE NOT SUFFICIENTLY
INFORMED OF THE AMENDMENT TO BE VOTED UPON. If the people are not sufficiently
informed of the amendments to be voted upon, to conscientiously deliberate thereon, to express their
will in a genuine manner, it cannot be said that in accordance with the constitutional mandate, "the
amendments are submitted to the people for their ratification."
4. ID.; ID.; ID.; ID.; RA 4913 VIOLATIVE OF THE CONSTITUTION FOR PRESCRIBING A
PROCEDURE WHICH DOES NOT EFFECTIVELY BRING THE MATTER TO THE PEOPLE.
When the voters do not have the benefit of proper notice of the proposed amendments thru
dissemination by publication in extenso and people do not have at hand the necessary data on which to
base their stand on the merits and demerits of said amendments, there is no proper submission of the
proposed constitutional amendments within the meaning and intendment of Section 1, Article XV of the
Constitution.
REYES, J.B.L., J., concurring:
1. CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; RATIFICATION BY
THE PEOPLE; SUBMISSION OF THE PROPOSED AMENDMENTS AT A SPECIAL ELECTION
CALLED FOR THE PURPOSE. The framers of the Constitution, aware of the fundamental character
thereof, and of the need of giving it as much stability as is practicable, could have only meant that any
amendments thereto should be debated, considered and voted upon at an election wherein the people
could devote undivided attention to the subject, That this was the intention and the spirit of the provision
is corroborated in the case of all other constitutional amendments in the past, that were submitted to and
approved in special elections exclusively devoted to the issue whether the legislature's amendatory
proposals should be ratified or not.
FERNANDO, J., concurring:
1. CONSTITUTIONAL LAW; AMENDMENTS TO THE CONSTITUTION; JUDICIAL INQUIRY AS
TO THE AMENDING PROCESS APPROPRIATE TO ASSURE UTMOST COMPLIANCE WITH
THE CONSTITUTIONAL REQUIREMENTS. In Mabanag v. Lopez Vito, 78 Phil. 1 (1947) this
Court through Justice Tuazon followed Coleman v. Miller, 307 US 433 (1939) in its holding that certain
aspects of the amending process may be considered political. His opinion quoted with approval the view
of Justice Black, to which three other members of the United States Supreme Court agreed, that the
process itself is political in its entirety, "from submission until am amendment becomes part of the
Constitution, and is not subject to judicial guidance, control or interference at any point." In a sense that

39

would solve the matter neatly. The judiciary would be spared the at times arduous and in every case
soul-searching process of determining whether the procedure for amendments required by the
Constitution has been followed. At the same time, without impugning the motives of Congress, which
cannot be judicially inquired into at any rate, it is not beyond the realm of possibility that a failure to
observe the requirements of Article XV would occur. In the event that judicial intervention is sought, to
rely automatically on the theory of political question to avoid passing on such a matter of delicacy might
under certain circumstances be considered, and rightly so, as nothing less than judicial abdication or
surrender.

DECISION

CONCEPCION, C.J p:
G.R. No. L-28196 is an original action for prohibition, with preliminary injunction.
Petitioner therein prays for judgment:
1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from
performing any act that will result in the holding of the plebiscite for the ratification of the constitutional
amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of Congress of the
Philippines, approved on March 16, 1967; (b) the Director of Printing from printing ballots, pursuant to
said Act and Resolutions; and (c) the Auditor General from passing in audit any disbursement from the
appropriation of funds made in said Republic Act No. 4913; and
2) declaring said Act unconstitutional and void.
The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives
passed the following resolutions:
1. R.B.H. (Resolution of Both Houses) No. 1, proposing Philippines, be amended so as to increase the
membership of the House of Representatives from a maximum of 120, as provided in the present
Constitution, to a maximum of 180, to be apportioned among the several provinces as nearly as may be
according to the number of their respective inhabitants, although each province shall have, at least, one
(1) member;
2. R.B.H. No. 2, calling a convention to propose amendments to said Constitution, the convention to be
composed of two (2) elective delegates from each representative district, to be "elected in the general
elections to be held on the second Tuesday of November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so as to
authorize senators and members of the House of Representatives to become delegates to the
aforementioned constitutional convention, without forfeiting their respective seats in Congress.
Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967,
became Republic Act No. 4913, providing that the amendments to the Constitution proposed in the
aforementioned Resolutions Nos. 1 and 3 be submitted, for approval by the people, at the general
elections which shall be held on November 14, 1967.

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28, 1967, the
Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David and counsel for the
Philippine Constitution Association hereinafter referred to as the PHILCONSA were allowed to
argue as amici curiae. Said counsel for the PHILCONSA, Dr. Salvador Araneta, likewise, prayed that
the decision in this case be deferred until after a substantially identical case brought by said
organization before the Commission on Elections, 1 which was expected to decide it any time, and
whose decision would, in all probability, be appealed to this Court had been submitted thereto for
final determination, for a joint decision on the identical issues raised in both cases. In fact, on October
31, 1967, the PHILCONSA filed with this Court the petition in G.R. No. L-28224 for review by
certiorari of the resolution of the Commission on Elections 2 dismissing the petition therein. The two (2)
cases were deemed submitted for decision on November 8, 1967, upon the filing of the answer of
respondent, the memorandum of the petitioner and the reply memorandum of respondent in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a voter.
He claims to have instituted case L-28196 as a class suit, for and in behalf of all citizens, taxpayers, and
voters similarly situated. Although respondents and the Solicitor General have filed an answer denying
the truth of this allegation, upon the ground that they have no knowledge or information to form a belief
as to the truth thereof, such denial would appear to be a perfunctory one. In fact, at the hearing of
case L-28196, the Solicitor General expressed himself in favor of a judicial determination of the merits
of the issues raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly organized and existing under
the laws of the Philippines, and a civic, non-profit and non-partisan organization the objective of which
is to uphold the rule of law in the Philippines and to defend its Constitution against erosions or
onslaughts from whatever source. Despite his aforementioned statement in L-28196, in his answer in L28224 the Solicitor General maintains that this Court has no jurisdiction over the subject-matter of L28224, upon the ground that the same is "merely political' as held in Mabanag vs. Lopez Vito. 3 Senator
Arturo M. Tolentino, who appeared before the Commission on Elections and filed an opposition to the
PHILCONSA petition therein, was allowed to appear before this Court and objected to said petition
upon the ground a) that the Court has no jurisdiction either to grant the relief sought in the petition, or to
pass upon the legality of the composition of the House of Representatives; b) that the petition, if
granted, would, in effect, render in-operational the legislative department; and c) that "the failure of
Congress to enact a valid reapportionment law . . . does not have the legal effect of rendering illegal the
House of Representatives elected thereafter, nor of rendering its acts null and void."
As early as Angara vs. Electoral Commission, 4 this Court speaking through one of the leading
members of the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P.
Laurel declared that "the judicial department is the only constitutional organ which can be called
upon to determine the proper allocation of power between the several departments and among the
integral or constitutional constituent units thereof."
It is true that in Mabanag vs. Lopez Vito, 5 this Court, characterizing the issue submitted thereto as a
political one, declined to pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution which was being submitted to the
people for ratification satisfied the three-fourths vote requirement of the fundamental law. The force
of this precedent has been weakened, however, by Suanes vs. Chief Accountant of the
Senate, 6Avelino vs. Cuenco, 7 Taada vs. Cuenco, 8 and Macias vs. Commission on Elections. 9 In the
first, we held that the officers and employees of the Senate Electoral Tribunal are under its supervision
and control, not of that of the Senate President, as claimed by the latter; in the second, this Court
proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third, we
nullified the election, by Senators belonging to the party having the largest number of votes in said
chamber, purporting to act on behalf of the party having the second largest number of votes therein, of
two (2) Senators belonging to the first party, as members, for the second party, of the Senate Electoral
Tribunal; and in the fourth, we declared unconstitutional an act of Congress purporting to apportion the

40

representative districts for the House of Representatives, upon the ground that the apportionment had
not been made as nearly as may be possible according to the number of inhabitants of each province.
Thus we rejected the theory, advanced in these four (4) cases, that the issues therein raised were political
questions the determination of which is beyond judicial review.

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in the
general grant of legislative powers to Congress. 10 It is part of the inherent powers of the people as
the repository of sovereignty in a republican state, such as ours 11 to make, and, hence, to amend
their own Fundamental Law. Congress may propose amendments to the Constitution merely because the
same explicitly grants such power. 12 Hence, when exercising the same, it is said that Senators and
Members of the House of Representatives act, not as members of Congress but as component elements
of a constituent assembly. When acting as such, the members of Congress derive their authority from the
Constitution, unlike the people, when performing the same function, 13 for their authority
does not emanate from the Constitution they are the very source of all powers of
government, including the Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution, the members of
Congress derive their authority from the Fundamental Law, it follows, necessarily, that they do not have
the final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they
could brush aside and set the same at naught, contrary to the basic tenet that ours is a government of
laws, not of men, and to the rigid nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme Court 14 the power to declare a treaty
unconstitutional, 15 despite the eminently political character of the treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a constituent assembly
violates the Constitution, is essentially justiciable, not political, and, hence, subject to judicial review,
and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs. Lopez
Vito, 16 the latter should be deemed modified accordingly. The Members of the Court are unanimous on
this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
"The Congress in joint session assembled by a vote of three fourths of all
the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention
for that purpose. Such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification."
Pursuant to this provision, amendments to the constitution may be proposed, either by Congress, or by a
convention called by Congress for that purpose. In either case, the vote of "three-fourths of all the
members of the Senate and of the House of Representatives voting separately" is necessary. And, "such
amendments shall be valid as part of the "Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the people for their ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of threefourths of all the members of the Senate and of the House of Representatives voting separately. This,
notwithstanding, it is urged that said resolutions are null and void because:
1. The Members of Congress, which approved the proposed amendments, as well as the resolution
calling a convention to propose amendments, are, at best, de facto Congressmen;

2. Congress may adopt either one of two alternatives propose amendments or call a convention
therefor but may not avail of both that is to say, propose amendment and call a convention at
the same time;
3. The election, in which proposals for amendments to the Constitution shall be submitted for
ratification, must be a special election, not a general election, in which officers of the national and local
governments such as the elections scheduled to be held on November 14, 1967 will be chosen;
and
4. The spirit of the Constitution demands that the election, in which proposals for amendment shall be
submitted to the people for ratification, must be held under such conditions which, allegedly, do not
exist as to give the people a reasonable opportunity to have a fair grasp of the nature and implications
of said amendments.
Legality of Congress and
Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution, which provides:
"The House of Representatives shall be composed of not more than one
hundred and twenty Members who shall be apportioned among the several
provinces as nearly as may be according to the number of their respective
inhabitants, but each province shall have at least one Member. The Congress
shall by law make an apportionment within three years after the return of every
enumeration, and not otherwise. Until such apportionment shall have been
made, the House of Representatives shall have the same number of Members
as that fixed by law for the National Assembly, who shall be elected by the
qualified electors from the present Assembly districts. Each representative
district shall comprise, as far as practicable, contiguous and compact territory."
It is urged that the last enumeration or census took place in 1960; that, no apportionment having been
made within three (3) years thereafter, the Congress of the Philippines and/or the election of its
Members became illegal; that Congress and its Members, likewise, became a de facto Congress
and/or de facto congressmen, respectively; and that, consequently, the disputed Resolutions, proposing
amendments to the Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment within three years after the
enumeration or census made in 1960. It did actually pass a bill, which became a Republic Act No,
3040, 17 purporting to in make said apportionment. This Act was, however, declared unconstitutional,
upon the ground that the apportionment therein undertaken had not been made according to the number
of inhabitants of the different provinces of the Philippines. 18
Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make a valid
apportionment within the period stated in the Constitution, Congress became an "unconstitutional
Congress" and that, in consequence thereof, the Members of its House of Representatives are de
facto officers. The major premise of this process of reasoning is that the constitutional provision on
"apportionment within three years after the return of every enumeration, and not otherwise," is
mandatory. The fact that Congress is under legal obligation to make said apportionment does not justify,
however, the conclusion that failure to comply with such obligation rendered Congress illegal or
unconstitutional, or that its Members have become de facto officers.
It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid
apportionment as required in said fundamental law. The effect of this omission has been envisioned in
the Constitutional pursuant to which:

41

". . . Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law
for the National Assembly, who shall be elected by the qualified electors from
the present Assembly districts . . ."
The provision does not support the view that, upon the expiration of the period to make the
apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the contrary, it
implies necessarily that Congress shall continue to function with the representative districts existing at
the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections held in 1935. This theory
assumes that an apportionment had to be made necessarily before the first elections to be held after the
inauguration of the Commonwealth of the Philippines, or in 1938. 19 The assumption is, however,
unwarranted, for there had been no enumeration in 1935, and nobody could foretell when it would be
made. Those who drafted and adopted the Constitution in 1935 could be certain, therefore, that the
three-year period, after the earliest possible enumeration, would expire after the elections in 1938.
What is more, considering that several provisions of the Constitution, particularly those on the
legislative department, were amended in 1940, by establishing a bicameral Congress, those who drafted
and adopted said amendment, incorporating therein the provision of the original Constitution regarding
the apportionment of the districts for representatives, must have known that the three-year period
therefor would expire after the elections scheduled to be held and actually held in 1941.
Thus, the events contemporaneous with the framing and ratification of the original Constitution in 1935
and of the amendment thereof in 1940 strongly indicate that the provision concerning said
apportionment and the effect of the failure to make it were expected to be applied to conditions
obtaining after the elections in 1935 and 1938, and even after subsequent elections.
Then again, since the report of the Director of the Census on the last enumeration was submitted to the
President on November 30, 1960, it follows that the three year period to make the apportionment did not
expire until 1963, or after the Presidential Elections in 1961. There can be no question, therefore, that
the Senate and the House of Representatives organized or constituted on December 30, 1961, were de
jure bodies, and that the Members thereof were de jure officers. Pursuant to the theory of petitioners
herein upon expiration of said period of three years, or late in 1963, Congress became illegal and its
Members, or at least, those of the House of Representatives, became illegal holders of their respective
offices, and were de facto officers.

Petitioners do not allege that the expiration of said three-year period, without a reapportionment, had the
effect of abrogating or repealing the legal provision creating Congress, or, at least, the House of
Representatives, and we are not aware of any rule or principle of law that would warrant such
conclusion. Neither do they allege that the term of office of the members of said House automatically
expired or that they ipso facto forfeited their seats in Congress, upon the lapse of said period for
reapportionment. In fact, neither our political law, in general, nor our law on public officers, in
particular, supports the view that failure to discharge a mandatory duty, whatever it may be, would
automatically result in the forfeiture of an office, in the absence of a statute to this effect.
Similarly, it would seem obvious that the provisions of our Election Law relative to the election of
Members of Congress in 1965 were not repealed in consequence of the failure of said body to make an
apportionment within three (3) years after the census of 1960. Inasmuch as the general elections in 1965
were presumably held in conformity with said Election Law, and the legal provisions creating Congress
with a House of Representatives composed of members elected by qualified voters of representative
districts as they existed at the time of said elections remained in force, we can not see how said

Members of the House of Representatives can be regarded as de facto officers owing to the failure of
their predecessors in office to make a reapportionment within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-President,
the Justices of the Supreme Court and the Auditor General for,inter alia, culpable violation of the
Constitution, 20 the enforcement of which is, not only their mandatory duty, but, also their main
function. This provision indicates that, despite the violation of such mandatory duty, the title to their
respective offices remains unimpaired, until dismissal or ouster pursuant to a judgment of conviction
rendered in accordance with Article IX of the Constitution. In short, the loss of office or the extinction
of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress are merely de facto officers, it
would not follow that the contested resolutions and Republic Act No. 4913 are null and void. In fact the
main reason for the existence of the de facto doctrine is that public interest demands that acts of persons
holding, under color of title, an office created by a valid statute be, likewise, deemed valid insofar as the
public as distinguished from the officer in question is concerned 21 . Indeed, otherwise, those
dealing with officers and employees of the government would be entitled to demand from them
satisfactory proof of their title to the position they hold, before dealing with them, before recognizing
their authority or obeying their commands, even if they should act within the limits of the authority
vested in their respective offices, positions or employments. 22 One can imagine the great
inconvenience, hardships and evils that would result in the absence of the de factodoctrine.
As a consequence the title of a de facto officer cannot be assailed collaterally. 23 It may not be contested
except directly, by quo warranto proceedings. Neither may the validity of his acts be questioned upon
the ground that he is merely a de facto officer. 24 And the reasons are obvious: (1) it would be an
indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the competence
of his office, are valid, insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar because the acts therein involved
have not been completed and petitioners herein are not third parties. This pretense is untenable. It is
inconsistent with Tayko vs. Capistrano. 25 In that case one of the parties to a suit being heard before
Judge Capistrano objected to his continuing to hear the case, for the reason that, meanwhile, he had
reached the age of retirement. This Court held that the objection could not be entertained, because the
Judge was at least, a de facto Judge, whose title can not be assailed collaterally. It should be noted that
Tayko was not a third party insofar as the Judge was concerned. Tayko was not of the parties in the
aforementioned suit. Moreover, Judge Capistrano had not as yet, finished hearing the case, much less
rendered a decision therein. No rights had vested in favor of any of the parties, in consequence of the
acts of said Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as Congress is
concerned , its acts, as regards the Resolutions herein contested the Republic Act No. 4913, are
complete. Congress has nothing to do in connection therewith.
The Court is, also, unanimous in holding that the objection under consideration is untenable.
Alternatives Available
to Congress.
Atty. Juan T. David, as amicus curiae maintains that Congress may either propose amendments to the
Constitution or call a convention for that purpose, but it cannot doboth, at the same time. This theory is
based upon the fact that the two (2) alternatives are connected in the Constitution by the disjunctive
"or." Such basis is, however, a weak one, in the absence of other circumstances and none has been
brought to our attention supporting the conclusion drawn by the amicus curiae. In fact, the term "or"
has, oftentimes, been held to mean "and," or vice-versa, when the spirit or context of the law warrants
it. 26

42

It is, also, noteworthy that R.B.H. Nos. 1 and 3 propose amendments to the constitutional provisions on
Congress, to be submitted to the people for ratification onNovember 14, 1967, whereas R.B.H. No. 2
calls for a convention in 1971, to consider proposals for amendment to the Constitution, in general In
other words, the subject- matter of R.B.H. No. 2 is different from that of R.B.H. Nos. 1 and 3.
Moreover, the amendments proposed under R.B.H. Nos. 1 and 3, will be submitted for ratification
several years before those that may be proposed by the constitutional convention called in R.B.H. No. 2.
Again, although the three (3) resolutions were passed on the same date, they were taken up and put to a
vote separately, or one after the other. In other words, they were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history thereof, anything that would
negate the contested of different Congresses to approve the contested Resolutions, or of the same
Congress to pass the same in different sessions or different days of the same congressional session. And,
neither has any plausible reason been advanced to justify the denial of authority to adopt said resolutions
on the same day.
Counsel ask: Since Congress has decided to call a constitutional convention to propose amendments,
why not let the whole thing be submitted to said convention, instead of, likewise, proposing some
specific amendments, to be submitted for ratification before said convention is held? The force of this
argument must be conceded, but the same impugns the wisdom of the action taken by Congress, not
its authority to take it. One seeming purpose thereof is to permit Members of Congress to run for
election as delegates to the constitutional convention and participate in the proceedings therein, without
forfeiting their seats in Congress. Whether or nothing should be done is a political question, not subject
to review by the courts of justice.
On this question there is no disagreement among the members of the Court.
May Constitutional Amendments
Be Submitted for Ratification
in a General Election?
Article XV of the Constitution provides:
". . . The Congress in joint session assembled, by a vote of three- fourths of all
the Members of the Senate and of the House of Representatives voting
separately, may propose amendments to this Constitution or call a convention
for that purpose. Such amendments shall be valid as part of this Constitution
when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification."
There is in this provision nothing to indicate that the "election" therein referred to is a "special," not a
general election. The circumstance that three previous amendments to the Constitution had been
submitted to the people for ratification in special elections merely shows that Congress deemed it best to
do so under the circumstances then obtaining. It does not negate its authority to submit proposed
amendments for ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of the proposed amendments, that the
same be submitted to the people's approval independently of the election of public officials. And there is
no denying the fact that an adequate appraisal of the merits and demerits of proposed amendments is
likely to be overshadowed by the great attention usually commanded by the choice of personalities
involved in general elections, particularly when provincial and municipal officials are to be chosen. But,
then, these considerations are addressed to the wisdom of holding a plebiscite simultaneously with the
election of public officers. They do not deny the authority of Congress to choose either alternative, as
implied in the term "election" used, without qualification, in the above-quoted provision of the
Constitution. Such authority becomes even more patent when we consider: (1) that the term "election,"
normally refers to the choice or selection of candidates to public office by popular vote; and (2) that the

word used in Article V of the Constitution concerning the grant of suffrage to women is, not "election,"
but "plebiscite."

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the Constitution, should
be construed as meaning a special election Some members of the Court even feel that said term
("election") refers to a "plebiscite," without any "election," general or special, of public officers. They
opine that constitutional amendments are, in general, if not always, of such important, if not
transcendental and vital nature as to demand that the attention of the people be focused exclusively on
the subject-matter thereof, so that their votes thereon may reflect no more than their intelligent,
impartial and considered view on the merits of the proposed amendments, unimpaired, or, at least,
undiluted by extraneous, if not insidious factors, let alone the partisan political considerations that are
likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be promoted.
The ideal conditions, are, however, one thing. The question whether the Constitution forbids the
submission of proposals for amendment to the people except under such conditions, is another thing.
Much as the writer and those who concur in this opinion admire the contrary view, they find themselves
unable to subscribe thereto without, in effect, reading into the Constitution what they believe is not
written thereon and can not fairly be deduced from the letter thereof, since the spirit of the law should
not be a matter of sheer speculation.
The majority view although the votes in favor thereof are insufficient to declare Republic Act No.
4913 unconstitutional as ably set forth in the opinion penned by Mr. Justice Sanchez, is, however,
otherwise.
Would the Submission now of the Contested
Amendments to the People Violate the
Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on March 16, 1967, so that, by
November 14, 1967, our citizenry shall have had practically eight (8) months to be informed on the
amendments in question. Then again, Section 2 of Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues of the Official Gazette, at least
twenty days prior to the election;
"(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place in every
municipality, city and provincial office building and in every polling place not later than October 14,
1967," and that said copy "shall remain posted therein until after the election;
"(3) that "at least five copies of said amendment shall be kept in each polling place, to be made available
for examination by the qualified electors during election day;
"(4) that "when practicable, copies in the principal native languages, as may be determined by the
Commission on Elections, shall be kept in each polling place;
"(5) that "the Commission on Elections shall make available copies of said amendments in English,
Spanish and, whenever practicable, in the principal native languages, for free distribution;" and
(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which shall be used
on November 14, 1967.

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We are not prepared to say that the foregoing measures are palpably inadequate to comply with the
constitutional requirement that proposals for amendment be "submitted to the people for their
ratification," and that said measures are manifestly insufficient, from a constitutional viewpoint, to
inform the people of the amendments sought to be made.
These were substantially the same means availed of to inform the people of the subject submitted to
them for ratification, from the original Constitution down to the Parity Amendment. Thus, referring to
the original Constitution, Section 1 of Act No. 4200, provides:
"Said Constitution, with the Ordinance appended thereto, shall be published in
the Official Gazette, in English and in Spanish, for three consecutive issues at
least fifteen days prior to said election, and a printed copy of said Constitution,
with the Ordinance appended thereto, shall be posted in a conspicuous place in
each municipal and provincial government office building and in each polling
place not later than the twenty-second day of April, nineteen hundred and
thirty-five, and shall remain posted therein continually until after the
termination of the election. At least ten copies of the Constitution with the
Ordinance appended thereto, in English and in Spanish, shall be kept at each
polling place available for examination by the qualified electors during
election day. Whenever practicable, copies in the principal local dialects as
may be determined by the Secretary of the Interior shall also be kept in each
polling place."
The provision concerning woman's suffrage in Section 1 of Commonwealth Act No. 34, reading:
"Said Article V of the Constitution shall be published in the Official Gazette, in
English and in Spanish, for three consecutive issues at least fifteen days prior
to said election, and the said Article V shall be posted in a conspicuous place in
the municipal and provincial office building and in each polling place not later
than the twenty-second day of April, nineteen hundred and thirty-seven, and
shall remain posted therein continually until after the termination of the
plebiscite. At least ten copies of the said Article V of the Constitution, in
English and in Spanish, shall be kept at each polling place available for
examination by the qualified electors during the plebiscite. Whenever
practicable, copies in the principal native languages, as may be determined by
the Secretary of the Interior, shall also be kept in each polling place."
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of the following
tenor:
"The said amendments shall be published in English and Spanish in three
consecutive issues of the Official Gazette at least twenty days prior to the
election. A printed copy thereof shall be posted in a conspicuous place in every
municipal, city, and provincial government office building and in every polling
place not later than May eighteen, nineteen hundred and forty, and shall remain
posted therein until after the election. At least ten copies of said amendments
shall be kept in each polling place to be made available for examination by the
qualified electors during election day. When practicable, copies in the principal
native languages, as may be determined by the Secretary of the Interior, shall
also be kept therein."
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:

"The said amendment shall be published in English and Spanish in three

consecutive issues of the Official Gazette at least twenty days prior to the
election. A printed copy thereof shall be posted in a conspicuous place in every
municipal, city and provincial government office building and in every polling
place not later than February eleven, nineteen hundred and forty-seven, and
shall remain posted therein until after the election. At least, ten copies of the
said amendment shall be kept in each polling place to be made available for
examination by the qualified electors during election day. When practicable,
copies in the principal native languages, as may be determined by the
Commission on Elections, shall also be kept in each polling place."
The main difference between the present situation and that obtaining in connection with the former
proposals does not arise from the law enacted therefor. The difference springs from the circumstance
that the major political parties had taken sides on previous amendments to the Constitution except,
perhaps, the woman's suffrage and, consequently, debated thereon at some length before the
plebiscite took place. Upon the other hand, said political parties have not seemingly made an issue on
the amendments now being contested and have, accordingly, refrained from discussing the same in the
current political campaign. Such debates or polemics as may have taken place on a rather limited
scale on the latest proposals for amendment, have been due principally to the initiative of a few civic
organizations and some militant members of our citizenry who have voiced their opinion thereon. A
legislation cannot, however, be nullified by reason of the failure of certain sectors of the community to
discuss it sufficiently. Its constitutionality or unconstitutionality depends upon no other factors than
those existing at the time of the enactment thereof, unaffected by the acts or omission of law enforcing
agencies, particularly those that take place subsequently to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the sufficiency or insufficiency, from a
constitutional angle, of the submission thereof for ratification to the people on November 14, 1967,
depends in the view of those who concur in this opinion, and who, insofar as this phase of the case,
constitute the minority upon whether the provisions of Republic Act No. 4913 are such as to fairly
apprise the people of the gist, the main idea or the substance of said proposals, which is under R.B.H.
No. 1 the increase of the maximum number of seats in the House of Representatives, from 120 to
180, and under R.B.H. No. 3 the authority given to the members of Congress to run for delegates
to the Constitutional Convention and, if elected thereto, to discharge the duties of such delegates,
without forfeiting their seats in Congress. We who constitute the minority believe that Republic
Act No. 4913 satisfies such requirement and that said Act is, accordingly, constitutional.
A considerable portion of the people may not know how over 160 of the proposed maximum of
representative districts are actually apportioned by R.B.H. No. 1 among the provinces in the Philippines.
It is not improbable, however, that they are not interested in the details of the apportionment, or that a
careful reading thereof may tend, in their simple minds, to impair a clear vision thereof. Upon the other
hand, those who are more sophisticated, may enlighten themselves sufficiently by reading the copies of
the proposed amendments posted in public places, the copies kept in the polling places and the text of
the contested resolutions, as printed in full on the back of the ballots they will use.

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage the effect of
R.B.H. No. 3 upon the work of the Constitutional Convention or upon the future of our Republic. But,
then, nobody can foretell such effect with certainty. From our viewpoint, the provisions of Article XV of
the Constitution are satisfied so long as the electorate knows that R.B.H. No. 3 permits Congressmen to
retain their seats as legislators, even if they should run for and assume the functions of delegates to the
Convention.

44

We are impressed by the factors considered by our distinguished and esteemed brethren, who opine
otherwise, but, we feel that such factors affect the wisdom ofRepublic Act No. 4913 and that of R.B.H.
Nos. 1 and 3, not the authority of Congress to approve the same.
The system of checks and balances underlying the judicial power to strike down acts of the Executive or
of Congress transcending the confines set forth in the fundamental law is not in derogation of the
principle of separation of powers, pursuant to which each department is supreme within its own sphere.
The determination of the conditions under which the proposed amendments shall be submitted to the
people is concededly a matter which falls within the legislative sphere. We do not believe it has been
satisfactorily shown that Congress has exceeded the limits thereof in acting Republic Act No. 4913.
Presumably, it could have done something better to enlighten the people on the subject-matter thereof.
But, then, no law is perfect. No product of human endeavor is beyond improvement. Otherwise, no
legislation would be constitutional and valid. Six (6) Members of this Court believe, however, said Act
and R.B.H. Nos. 1 and 3 violate the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R.B.H. Nos.
1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must be, as they are hereby,
dismissed, and the writs therein prayed for denied, without special pronouncement as to costs. It is so
ordered.
Makalintal and Bengzon, J.P., JJ., concur.
||| (Gonzales v. COMELEC, G.R. No. L-28196, L-28224, [November 9, 1967])

plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or
radio or television time to campaign for or against the plebiscite issues." Respondent Comelec maintains
that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional
guarantees of the freedom of expression and of the press. Rather, it is a valid implementation of the
power of the Comelec to supervise and regulate media during election or plebiscite periods as
enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines. It is
stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his
views and or from campaigning for or against the Organic Act. He may still express his views or
campaign for or against the act through the Comelec space and airtime. This is provided under Sections
90 and 92 of BP 881. The contention is without merit. While the limitation does not absolutely bar
petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may
express his view. No reason was advanced by respondent to justify such abridgement. We hold that this
form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable
reason. Plebiscite issues are matters of public concern and importance. The people's right to be informed
and to be able to freely and intelligently make a decision would be better served by access to an
unabridged discussion of the issues, including the forum. The people affected by the issues presented in
a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression
may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they
do not guarantee full dissemination of information to the public concerned because they are limited to
either specific portions in newspapers or to specific radio or television times.
2. ID.; RULING IN THE CASE OF BADOY JR. V. COMELEC (L-32546, OCTOBER 16, 1970), NOT
APPLICABLE IN A PLEBISCITE; REASON THEREFOR. In the case of Badoy, Jr. v. Comelec, L32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election
propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of
the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal
protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that
case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political
matter unlike in an election where votes are cast in favor of specific persons for some office. In other
words, the electorate is asked to vote for or against issues, not candidates in a plebiscite.
DECISION
MEDIALDEA, J p:
This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No.
2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of the
press.

EN BANC
[G.R. No. 90878. January 29, 1990.]
PABLITO V. SANIDAD, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; COMELEC RESOLUTION NO. 2167, SECTION 19 THEREOF;
HELD UNCONSTITUTIONAL AS AN ABRIDGMENT OF FREEDOM OF EXPRESSION.
Section 19 of Comelec Resolution No. 2167, which provides: "Section 19. Prohibition on columnists,
commentators or announcers. During the plebiscite campaign period, on the day before and on

On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC
ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law. Pursuant to said
law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain
Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall
take part in a plebiscite for the ratification of said Organic Act originally scheduled last December 27,
1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated
December 27, 1989.
The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus
Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No.
2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous
Region.

45

In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a
newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly
newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section
19 of Comelec Resolution No. 2167, which provides:
"Section 19. Prohibition on columnists, commentators or announcers. During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or
personality shall use his column or radio or television time to campaign for or against the plebiscite
issues."
It is alleged by petitioner that said provision is void and unconstitutional because it violates the
constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution.
LLjur

known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially within the area in which the newspaper is circulated.
"Section 92. Comelec Time. The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the area
of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting
and television stations are hereby amended so as to provide radio or television time, free of charge,
during the period of the campaign."
Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A.
6646 as the basis for the promulgation of the questioned Section 19 of Comelec Resolution 2167.
LLphil
Article IX-C of the 1987 Constitution provides:

Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains
that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and
beliefs on any issue or subject about which he writes. Petitioner believes that said provision of
COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom
of the press and further imposes subsequent punishment for those who may violate it because it contains
a penal provision, as follows:
"Article XIII, Section 122, Election Offenses and Banned Acts or Activities. Except to the extent that
the same may not be applicable to a plebiscite, the banned acts/activities and offenses defined in and
penalized by the Omnibus Election Code (Sections 261, 262, 263 and 264, Article XXII, B.P Blg. 881)
and the pertinent provisions of R.A. No. 6646 shall be applicable to the plebiscite governed by this
Resolution."
Petitioner likewise maintains that if media practitioners were allowed to express their views, beliefs and
opinions on the issue submitted to a plebiscite, it would in fact help in the government drive and desire
to disseminate information, and hear, as well as ventilate, all sides of the issue.
On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on
Elections from enforcing and implementing Section 19 of Resolution No. 2167. We also required the
respondent to comment on the petition.

"The Commission may, during the election period, supervise or regulate the enjoyment or utilization of
all franchises or permits for the operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or concessions granted by the Government
or any subdivision, agency or instrumentality thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time,
and space, and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding free, orderly,
honest, peaceful and credible elections."
Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides:
"Prohibited forms of election Propaganda. In addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: . . . .
"(b) for any newspaper, radio, broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a
candidate for any elective office shall take a leave of absence from his work as such during the
campaign period." (Emphasis ours)

On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General
filed its Comment.
Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not
violative of the constitutional guarantees of the freedom of expression and of the press. Rather, it is a
valid implementation of the power of the Comelec to supervise and regulate media during election or
plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of
the Philippines.
It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing
his views and or from campaigning for or against the Organic Act. He may still express his views or
campaign for or against the act through the Comelec space and airtime. This is provided under Sections
90 and 92 of BP 881:
"Section 90. Comelec Space. The Commission shall procure space in at least one newspaper of
general circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city which shall be

However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was
the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued
for the operation of transportation or other public utilities, media of communication or information to
the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among candidates are ensured. The evil sought to
be prevented by this provision is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television time. This is also the reason
why a "columnist, commentator, announcer or personality, who is a candidate for any elective office is
required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b)
R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be
more exposed to the voters to the prejudice of other candidates unless required to take a leave of
absence.

46

However, neither Article IX-C of the Constitution nor Section 11(b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the
exercise by media practitioners themselves of their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during plebiscite periods are neither the franchise
holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section
19 of Comelec Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is
a valid exercise of the police power of the state "to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in
an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are
taken in an area on some special political matter unlike in an election where votes are cast in favor of
specific persons for some office. In other words, the electorate is asked to vote for or against issues, not
candidates in a plebiscite. LLjur
Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely
bar petitioner-columnist from expressing his views and or from campaigning for or against the organic
act because he may do so through the Comelec space and/or Comelec radio/television time, the same is
not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still
a restriction on his choice of the forum where he may express his view. No reason was advanced by
respondent to justify such abridgement. We hold that this form of regulation is tantamount to a
restriction of petitioner's freedom of expression for no justifiable reason.
Plebiscite issues are matters of public concern and importance. The people's right to be informed and to
be able to freely and intelligently make a decision would be better served by access to an unabridged
discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite
should not be unduly burdened by restrictions on the forum where the right to expression may be
exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not
guarantee full dissemination of information to the public concerned because they are limited to either
specific portions in newspapers or to specific radio or television times.
ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is
declared null and void and unconstitutional. The restraining order herein issued is hereby made
permanent. prLL
SO ORDERED.
||| (Sanidad v. COMELEC, G.R. No. 90878, [January 29, 1990], 260 PHIL 565-571)

EN BANC

[G.R. No. 141284. August 15, 2000.]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.
RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR
B. AGLIPAY, and GEN. ANGELO REYES, respondents.

Arthur D. Lim for petitioner.

The Solicitor General for respondents.

SYNOPSIS
The President of the Philippines, Joseph Ejercito Estrada, in a verbal directive, ordered the PNP and the
Marines to conduct joint visibility patrols for the purpose of crime prevention and suppression. In
compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B.
Aglipay, formulated Letter of Instruction 02/2000 (the "LOI") which detailed the manner by which the
joint visibility patrols, called Task Force Tulungan, would be conducted. Task Force Tulungan was
placed under the leadership of the Police Chief of Metro Manila. Invoking his powers as Commanderin-Chief under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff
and PNP Chief to coordinate with each other for the proper deployment and utilization of the Marines to
assist the PNP in preventing or suppressing criminal or lawless violence. The President also declared
that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a
reasonable period only, until such time when the situation shall have improved. The Integrated Bar of
the Philippines (the "IBP") filed the instant petition to annul LOI 02/2000 and to declare the deployment
of the Philippine Marines null and void and unconstitutional, arguing that the deployment of marines in
Metro Manila is violative of the Constitution because no emergency situation obtains in Metro Manila
as would justify, even only remotely, the deployment of soldiers for law enforcement work; hence, said
deployment in derogation of Article II, Section 3 of the Constitution.
The Supreme Court found no merit in the petition. When the President calls the armed forces to prevent
or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely
vested in his wisdom. This is clear from the intent of the framers and from the text of
the Constitution itself. The Court, thus, cannot be called upon to overrule the President's wisdom or
substitute its own. It does not, however, prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse
of discretion. In view of the constitutional intent to give the President full discretionary power to
determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that
the President's decision is totally bereft of factual basis. The petition failed to discharge such heavy
burden as there was no evidence to support the assertion that there exists no justification for calling out
the armed forces nor was grave abuse committed because the power to call was exercised in such a
manner as to violate the constitutional provision on civilian supremacy over the military. In the
performance of the Court's duty of "purposeful hesitation" before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere
with the President's judgment and to doubt is to sustain. The Court also ruled that the calling of the
Marines in this case constitutes permissible use of military assets for civilian law enforcement. The
participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The
limited participation of the Marines is evident in the provisions of the LOI itself, which sufficiently
provides the metes and bounds of the Marines' authority. It is noteworthy that the local police forces are

47

the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. Under the
LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is their
responsibility to direct and manage the deployment of the Marines. It is, likewise, their duty to provide
the necessary equipment to the Marines and render logistical support to these soldiers. It cannot be
properly argued then that military authority is supreme over civilian authority. Moreover, the
deployment of the Marines to assist the PNP does not unmake the civilian character of the police force.
Neither does it amount to an "insidious incursion" of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.

SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW; PETITIONER
INTEGRATED BAR OF THE PHILIPPINES HAS NOT COMPLIED WITH THE REQUISITES OF
LEGAL STANDING IN CASE AT BAR; PETITIONER HAS NOT SUCCESSFULLY ESTABLISHED
A DIRECT AND PERSONAL INJURY AS A CONSEQUENCE OF THE QUESTIONED ACT. The
IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and
the Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of
its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry. Based on the standards above-stated,
the IBP has failed to present a specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the
standards of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the National
President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing
him to file the present action. To be sure, members of the BAR, those in the judiciary included, have
varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly
represents, has sustained any form of injury as a result of the operation of the joint visibility patrols.
Neither is it alleged that any of its members has been arrested or that their civil liberties have been
violated by the deployment of the Marines. What the IBP projects as injurious is the supposed
"militarization" of law enforcement which might threaten Philippine democratic institutions and may
cause more harm than good in the long run. Not only is the presumed "injury" not personal in character,
it is likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the deployment of the
Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to
raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy
this Court that it has sufficient stake to obtain judicial resolution of the controversy.
2. ID.; EXECUTIVE DEPARTMENT; POWERS OF THE PRESIDENT; THE PRESIDENT DID NOT
COMMIT GRAVE ABUSE OF DISCRETION IN CALLING OUT THE MARINES. When the
President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of
the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to
overrule the President's wisdom or substitute its own. However, this does not prevent an examination of
whether such power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the
President full discretionary power to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. The

present petition fails to discharge such heavy burden as there is no evidence to support the assertion that
there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was exercised in such a manner
as to violate the constitutional provision on civilian supremacy over the military. In the performance of
this Court's duty of purposeful hesitation" before declaring an act of another branch as unconstitutional,
only where such grave abuse of discretion is clearly shown shall the Court interfere with the President's
judgment. To doubt is to sustain.
3. ID.; ID.; ID.; GROUNDS FOR THE DECLARATION OF MARTIAL LAW AND SUSPENSION OF
THE WRIT OF HABEAS CORPUS; SAID CONDITIONS ARE NOT REQUIRED IN THE CASE OF
THE POWER OF THE PRESIDENT TO CALL OUT THE ARMED FORCES. Under Section 18,
Article VII of the Constitution, in the exercise of the power to suspend the privilege of the writ
of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual
invasion or rebellion and, (2) public safety must require it. These conditions are not required in the case
of the power to call out the Armed Forces. The only criterion is that "whenever it becomes necessary,"
the President may call the armed forces "to prevent or suppress lawless violence, invasion or rebellion."
The implication is that the President is given full discretion and wide latitude in the exercise of the
power to call as compared to the two other powers.

4. ID.; ID.; ID.; DETERMINATION OF NECESSITY FOR POWER TO CALL OUT ARMED
FORCES IF SUBJECTED TO UNFETTERED JUDICIAL SCRUTINY COULD BE A VERITABLE
PRESCRIPTION FOR DISASTER, AS SUCH POWER MAY BE UNDULY STRAITJACKETED BY
AN INJUNCTION OR TEMPORARY RESTRAINING ORDER EVERY TIME IT IS EXERCISED.
The President as Commander-in-Chief has a vast intelligence network to gather information, some of
which may be classified as highly confidential or affecting the security of the state. In the exercise of the
power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert
great loss of human lives and mass destruction of property. Indeed, the decision to call out the military
to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect
at all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country. The determination of the necessity
for the calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for
disaster, as such power may be unduly straitjacketed by an injunction or a temporary restraining order
every time it is exercised. Thus, it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his
judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion.
Unless the petitioner can show that the exercise of such discretion was gravely abused, the President's
exercise of judgment deserves to be accorded respect from this Court.
5. ID.; ID.; ID.; THE DEPLOYMENT OF THE MARINES DOES NOT VIOLATE THE CIVILIAN
SUPREMACY CLAUSE NOR DOES IT INFRINGE THE CIVILIAN CHARACTER OF THE
POLICE FORCE. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets
for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the
LOI itself, which sufficiently provides the metes and bounds of the Marines' authority. It is noteworthy
that the local police forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols. Under the LOI, the police forces are tasked to brief or orient the soldiers
on police patrol procedures. It is their responsibility to direct and manage the deployment of the
Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render
logistical support to these soldiers. In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority.

48

VITUG, J., separate opinion:

POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW; THE ACT OF
THE PRESIDENT IN SIMPLY CALLING ON THE ARMED FORCES, AN EXECUTIVE
PREROGATIVE, TO ASSIST THE PHILIPPINE NATIONAL POLICE IN "JOINT VISIBILITY
PATROLS" DOES NOT CONSTITUTE GRAVE ABUSE OF DISCRETION THAT WOULD
WARRANT AN EXERCISE BY THE COURT OF ITS EXTRAORDINARY POWER OF JUDICIAL
REVIEW. The term grave abuse of discretion is long understood in our jurisprudence as being, and
confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or excess of
jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel of views, the
act of the President in simply calling on the Armed Forces of the Philippines, an executive prerogative,
to assist the Philippine National Police in "joint visibility patrols" in the metropolis does not, I believe,
constitute grave abuse of discretion that would now warrant an exercise by the Supreme Court of its
extraordinary power as so envisioned by the fundamental law. HSTAcI
PUNO, J., separate opinion:
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW; CONDITIONS
THAT MUST BE MET BEFORE THE PRESIDENT, AS COMMANDER-IN-CHIEF, MAY CALL
OUT THE ARMED FORCES OF THE PHILIPPINES; SAID CONDITIONS DEFINE THE
PARAMETERS OF THE CALLING OUT POWER AND WHETHER OR NOT THERE IS
COMPLIANCE WITH THE SAID PARAMETERS IS A JUSTIFIABLE ISSUE AND NOT A
POLITICAL QUESTION. It is clear from Section 18, Article VII of the 1987 Constitutionthat the
President, as Commander-in-Chief of the armed forces of the Philippines, may call out the armed forces
subject to two conditions: (1) whenever it becomes necessary; and (2) to prevent or suppress lawless
violence, invasion or rebellion. Undeniably, these conditions lay down the sine qua requirement for the
exercise of the power and the objective sought to be attained by the exercise of the power. They define
the constitutional parameters of the calling out power. Whether or not there is compliance with these
parameters is a justiciable issue and is not a political question. I am not unaware that in the deliberations
of the Constitutional Commission, Commissioner Bernas opined that the President's exercise of the
"calling out power," unlike the suspension of the privilege of the writ of habeas corpus and the
declaration of martial law, is not a justiciable issue but a political question and therefore not subject to
judicial review. It must be borne in mind, however, that while a member's opinion expressed on the floor
of the Constitutional Convention is valuable, it is not necessarily expressive of the people's intent. The
proceedings of the Convention are less conclusive on the proper construction of the fundamental law
than are legislative proceedings of the proper construction of a statute, for in the latter case it is the
intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of
the people through the discussions and deliberations of their representatives. The conventional wisdom
is that the Constitution does not derive its force from the convention which framed it, but from the
people who ratified it, the intent to be arrived at is that of the people.
2. ID.; ID.; ID.; IT MAY BE CONCEDED THAT THE EXERCISE OF THE CALLING OUT POWER
MAY BE A "LESSER POWER" COMPARED TO THE POWER TO SUSPEND THE PRIVILEGE OF
THE WRIT OF HABEAS CORPUS AND THE POWER TO DECLARE MARTIAL LAW, STILL ITS
EXERCISE CANNOT BE LEFT TO ABSOLUTE DISCRETION OF THE CHIEF EXECUTIVE, AS
COMMANDER-IN-CHIEF OF THE ARMED FORCES, AS ITS IMPACT ON THE RIGHTS OF THE
PEOPLE PROTECTED BY THE CONSTITUTION CANNOT BE DOWNGRADED. It is true that
the third paragraph of Section 18, Article VII of the 1987 Constitution expressly gives the Court the
power to review the sufficiency of the factual bases used by the President in the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law. It does not follow, however,
that just because the same provision did not grant to this Court the power to review the exercise of the
calling out power by the President, ergo, this Court cannot pass upon the validity of its exercise. Given
the light of our constitutional history, this express grant of power merely means that the Court cannot
decline the exercise of its power because of the political question doctrine as it did in the past. In fine,

the express grant simply stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the Court not to wield its
power of review thru the use of the political question doctrine. It may be conceded that the calling out
power may be a "lesser power" compared to the power to suspend the privilege of the writ of habeas
corpus and the power to declare martial law. Even then, its exercise cannot be left to the absolute
discretion of the Chief Executive as Commander-in-Chief of the armed forces, as its impact on the rights
of our people protected by the Constitution cannot be downgraded. We cannot hold that acts of the
commander-in-chief cannot be reviewed on the ground that they have lesser impact on the civil and
political rights of our people. The exercise of the calling out power may be "benign" in the case at bar
but may not be so in future cases. THaCAI
MENDOZA, J., concurring and dissenting:
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW; JUDGMENT
ON THE SUBSTANTIAL ISSUES RAISED BY PETITIONER MUST AWAIT AN ACTUAL CASE
INVOLVING REAL PARTIES WITH "INJURIES" TO SHOW AS A RESULT OF THE OPERATION
OF THE CHALLENGED EXECUTIVE DECISION. I submit that judgment on the substantive
constitutional issues raised by petitioner must await an actual case involving real parties with "injuries"
to show as a result of the operation of the challenged executive action. While as an organization for the
advancement of the rule of law petitioner has an interest in upholding the Constitution, its interest is
indistinguishable from the interest of the rest of the citizenry and falls short of that which is necessary to
give petitioner standing. As I have indicated elsewhere, a citizens' suit challenging the constitutionality
of governmental action requires that (1) the petitioner must have suffered an "injury in fact" of an actual
or imminent nature; (2) there must be a causal connection between the injury and the conduct
complained of; and (3) the injury is likely to be redressed by a favorable action by this Court. The
"injury in fact" test requires more than injury to a cognizable interest. It requires that the party seeking
review be himself among those injured. My insistence on compliance with the standing requirement is
grounded in the conviction that only a party injured by the operation of the governmental action
challenged is in the best position to aid the Court in determining the precise nature of the problem
presented. Many a time we have adverted to the power of judicial review as an awesome power not to
be exercised save in the most exigent situation. For, indeed, sound judgment on momentous
constitutional questions is not likely to be reached unless it is the result of a clash of adversary
arguments which only parties with direct and specific interest in the outcome of the controversy can
make. This is true not only when we strike down a law or official action but also when we uphold
it. ESTDIA

2. ID.; ID.; ID.; ID.; NO EVIDENCE ON THE EFFECT OF MILITARY PRESENCE IN MALLS AND
COMMERCIAL CENTERS, I.E., WHETHER SUCH PRESENCE IS COERCIVE OR BENIGN. In
this case, because of the absence of parties with real and substantial interest to protect, we do not have
evidence on the effect of military presence in malls and commercial centers, i.e., whether such presence
is coercive or benign. We do not know whether the presence of so many marines and policemen scares
shoppers, tourists, and peaceful civilians, or whether it is reassuring to them. To be sure, the deployment
of troops to such places is not like parading them at the Luneta on Independence Day. Neither is it,
however, like calling them out because of actual fighting or the outbreak of violence. We need to have
evidence on these questions because, under the Constitution, the President's power to call out the armed
forces in order to suppress lawless violence, invasion or rebellion is subject to the limitation that the
exercise of this power is required in the interest of public safety.

DECISION

49

KAPUNAN, J p:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullity on constitutional grounds the order of President Joseph Ejercito
Estrada commanding the deployment of the Philippine Marines (the Marines) to join the Philippine
National Police (the "PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the "AFP"), the Chief of the PNP
and the Secretary of the Interior and Local Government were tasked to execute and implement the said
order.In compliance with the presidential mandate, the PNP Chief, through Police Chief Superintendent
Edgar B. Aglipay, formulated Letter of Instruction 02/2000 1 (the "LOI") which detailed the manner by
which the joint visibility patrols, called Task Force Tulungan, would be conducted. 2 Task
Force Tulungan was placed under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP
Chief. 3 In the Memorandum, the President expressed his desire to improve the peace and order
situation in Metro Manila through a more effective crime prevention program including increased police
patrols. 4 The President further stated that to heighten police visibility in the metropolis, augmentation
from the AFP is necessary. 5 Invoking his powers as Commander-in-Chief under Section 18, Article VII
of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with each
other for the proper deployment and utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence. 6 Finally, the President declared that the services of the
Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only,
until such time when the situation shall have improved. 7
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx xxx xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in the conduct of
police visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through

a sustained street patrolling to minimize or eradicate all forms of high-profile

crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed active
or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National
Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms
of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work cohesively
and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring a wholesome atmosphere
wherein delivery of basic services to the people and development is achieved
Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols,
local Police Units are responsible for the maintenance of peace and order in
their locality.
c. To ensure the effective implementation of this project, a provisional Task
Force "TULUNGAN" shall be organized to provide the mechanism, structure,
and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.
xxx xxx xxx. 8
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta
Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the
NAIA and Domestic Airport. 9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to annul
LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO
MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS
WOULD JUSTIFY, EVEN ONLY REMOTELY, THE
DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT
WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION
OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF
GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF
ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;

50

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO

RELY ON THE MILITARY TO PERFORM THE CIVILIAN
FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER
THE CONSTITUTION. 10
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold
the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of
the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, 11 dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor
General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in deploying
the Marines, contending, among others, that petitioner has no legal standing; that the question of
deployment of the Marines is not proper for judicial scrutiny since the same involves a political
question; that the organization and conduct of police visibility patrols, which feature the team-up of one
police officer and one Philippine Marine soldier, does not violate the civilian supremacy clause in
the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2)
Whether or not the President's factual determination of the necessity of calling the armed forces is
subject to judicial review, and, (3) Whether or not the calling of the armed forces to assist the PNP in
joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise
the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of
the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of judicial
review only if the following requisites are complied with, namely: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party raising the constitutional question;
(3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case. 12

The IBP has not sufficiently complied with the requisites of standing in this case.
"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged. 13 The term "interest" means a material interest, an interest in issue affected by the decree,
as distinguished from mere interest in the question involved, or a mere incidental interest. 14 The gist of
the question of standing is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. 15
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule
of law and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in
support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole citizenry. Based on the standards
above-stated, the IBP has failed to present a specific and substantial interest in the resolution of the
case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to elevate
the standards of the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the National
President of the IBP who signed the petition, is his alone, absent a formal board resolution authorizing
him to file the present action. To be sure, members of the BAR, those in the judiciary included, have
varying opinions on the issue. Moreover, the IBP, assuming that it has duly authorized the National
President to file the petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom the IBP purportedly
represents, has sustained any form of injury as a result of the operation of the joint visibility patrols.
Neither is it alleged that any of its members has been arrested or that their civil liberties have been
violated by the deployment of the Marines. What the IBP projects as injurious is the supposed
"militarization" of law enforcement which might threaten Philippine democratic institutions and may
cause more harm than good in the long run. Not only is the presumed "injury" not personal in character,
it is likewise too vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the deployment of the
Marines. This Court, however, does not categorically rule that the IBP has absolutely no standing to
raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy
this Court that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance
of a suit which does not satisfy the requirement of legal standing when paramount interest is
involved. 16 In not a few cases, the Court has adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the
people. 17 Thus, when the issues raised are of paramount importance to the public, the Court may brush
aside technicalities of procedure. 18 In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly aggravated by the Mindanao insurgency
problem, the legal controversy raised in the petition almost certainly will not go away. It will stare us in
the face again. It, therefore, behooves the Court to relax the rules on standing and to resolve the issue
now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.

51

In the case at bar, the bone of contention concerns the factual determination of the President of the
necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this
regard, the IBP admits that the deployment of the military personnel falls under the Commander-inChief powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the
power to call out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What
the IBP questions, however, is the basis for the calling of the Marines under the aforestated provision.
According to the IBP, no emergency exists that would justify the need for the calling of the military to
assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the
calling of the Marines. Thus, the IBP prays that this Court "review the sufficiency of the factual basis for
said troop [Marine] deployment." 19
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling
the armed forces is not proper for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of this Court. DTAESI
As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the
extent of judicial review. But, while this Court gives considerable weight to the parties' formulation of
the issues, the resolution of the controversy may warrant a creative approach that goes beyond the
narrow confines of the issues raised. Thus, while the parties are in agreement that the power exercised
by the President is the power to call out the armed forces, the Court is of the view that the power
involved may be no more than the maintenance of peace and order and promotion of the general
welfare. 20 For one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the
citizenry, a point discussed in the latter part of this decision. In the words of the late Justice Irene Cortes
in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the commanderin-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending
to the day-to-day problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of
peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in-Chief powers short of the
calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public
order and security.
xxx xxx xxx 21
Nonetheless, even if it is conceded that the power involved is the President's power to call out the armed
forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy
will reach a similar result.
We now address the Solicitor General's argument that the issue involved is not susceptible to review by
the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court
review. 22 It pertains to issues which are inherently susceptible of being decided on grounds recognized

by law. Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional
cases brought before it even in instances that are ripe for resolution. One class of cases wherein the
Court hesitates to rule on are ''political questions." The reason is that political questions are concerned
with issues dependent upon the wisdom, not the legality, of a particular act or measure being assailed.
Moreover, the political question being a function of the separation of powers, the courts will not
normally interfere with the workings of another co-equal branch unless the case shows a clear need for
the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco, 23 puts it, political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government." Thus,
if an issue is clearly identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be a political question. In
the classic formulation of Justice Brennan in Baker v. Carr, 24 [p]rominent on the surface of any case
held to involve a political question is found a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially discoverable and manageable standards
for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on the one question.

The 1987 Constitution expands the concept of judicial review by providing that "[T]he Judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial
power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." 25 Under this definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to review. When the grant of power
is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or
conditions have been met or the limitations respected, is justiciable the problem being one of legality
or validity, not its wisdom. 26 Moreover, the jurisdiction to delimit constitutional boundaries has been
given to this Court. 27 When political questions are involved, the Constitution limits the determination
as to whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. 28
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent
and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility. 29 Under this definition, a court is without power to directly
decide matters over which full discretionary authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of the President, it may look into the question of
whether such exercise has been made in grave abuse of discretion. 30 A showing that plenary power is
granted either department of government, may not be an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable controversy. 31
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion,
he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent
of the framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to
overrule the President's wisdom or substitute its own. However, this does not prevent an examination of
whether such power was exercised within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the

52

President full discretionary power to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the President's decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as there is no evidence to support the assertion that
there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was exercised in such a manner
as to violate the constitutional provision on civilian supremacy over the military. In the performance of
this Court's duty of purposeful hesitation" 32 before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the Court interfere
with the President's judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full discretionary
power to call out the armed forces and to determine the necessity for the exercise of such power. Section
18, Article VII of the Constitution, which embodies the powers of the President as Commander-inChief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or
place the Philippines or any part thereof under martial law.
xxx xxx xxx
The full discretionary power of the President to determine the factual basis for the exercise of the calling
out power is also implied and further reinforced in the rest of Section 18, Article VII which reads, thus:
xxx xxx xxx
Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension
for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need
of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law
or the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court
may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision
dealing with the revocation or review of the President's action to call out the armed forces. The
distinction places the calling out power in a different category from the power to declare martial law and
the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of
theConstitution would have simply lumped together the three powers and provided for their revocation
and review without any qualification. Expressio unius est exclusio alterius. Where the terms are
expressly limited to certain matters, it may not, by interpretation or construction, be extended to other
matters. 33 That the intent of theConstitution is exactly what its letter says, i.e., that the power to call is
fully discretionary to the President, is extant in the deliberation of the Constitutional Commission, to
wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call out
such Armed Forces as may be necessary to suppress lawless violence; then he
can suspend the privilege of the writ of habeas corpus, then he can impose
martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.
xxx xxx xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: "The President . . . may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent
danger. SAHITC
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: "The President . . .
may call out such Armed Forces to prevent or suppress lawless violence,
invasion or rebellion." So we feel that that is sufficient for handling imminent
danger, of invasion or rebellion, instead of imposing martial law or suspending
the writ of habeas corpus, he must necessarily have to call the Armed Forces of
the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review. 34
The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out because it is

53

considered as the lesser and more benign power compared to the power to suspend the privilege of the
writ of habeas corpusand the power to impose martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by
Congress and review by this Court.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there
must be an actual invasion or rebellion and, (2) public safety must require it. These conditions are not
required in the case of the power to call out the armed forces. The only criterion is that "whenever it
becomes necessary," the President may call the armed forces to prevent or suppress lawless violence,
invasion or rebellion." The implication is that the President is given full discretion and wide latitude in
the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual
necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several factors which are not always
accessible to the courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In
many instances, the evidence upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the state.
In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to
call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the country. The
determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could
be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief
of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do
so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show
that the exercise of such discretion was gravely abused, the President's exercise of judgment deserves to
be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups,
kidnappings and carnappings continue to occur in Metro Manila . . ." 35 We do not doubt the veracity of
the President's assessment of the situation, especially in the light of present developments. The Court
takes judicial notice of the recent bombings perpetrated by lawless elements in the shopping malls,
public utilities, and other public places. These are among the areas of deployment described in the LOI
2000. Considering all these facts, we hold that the President has sufficient factual basis to call for
military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe
the civilian character of the police force.

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines,
the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is
"militarized" in violation of Section 3, Article II 36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy
clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian
law enforcement. The participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is evident in the provisions of the
LOI itself, which sufficiently provides the metes and bounds of the Marines' authority. It is noteworthy
that the local police forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine
Marines joint visibility patrols. 37 Under the LOI, the police forces are tasked to brief or orient the
soldiers on police patrol procedures. 38 It is their responsibility to direct and manage the deployment of
the Marines. 39 It is, likewise, their duty to provide the necessary equipment to the Marines and render
logistical support to these soldiers. 40 In view of the foregoing, it cannot be properly argued that
military authority is supreme over civilian authority.
Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the
police force. Neither does it amount to an "insidious incursion" of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the Constitution. 41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task Force Tulungan since he does
not exercise any authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to a civilian position to speak of. Hence,
the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the
PNP.
Considering the above circumstances, the Marines render nothing more than assistance required in
conducting the patrols. As such, there can be no "insidious incursion" of the military in civilian affairs
nor can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally "civil" functions.
As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military
aid has been rendered, exemplifying the activities that bring both the civilian and the military together in
a relationship of cooperation, are:
1. Elections; 42
2. Administration of the Philippine National Red Cross; 43
3. Relief and rescue operations during calamities and disasters; 44
4. Amateur sports promotion and development; 45
5. Development of the culture and the arts; 46
6. Conservation of natural resources; 47
7. Implementation of the agrarian reform program; 48

54

8. Enforcement of customs laws; 49

9. Composite civilian-military law enforcement activities; 50
10. Conduct of licensure examinations; 51
11. Conduct of nationwide tests for elementary and high school students; 52
12. Anti-drug enforcement activities; 53
13. Sanitary inspections; 54
14. Conduct of census work; 55
15. Administration of the Civil Aeronautics Board; 56
16. Assistance in installation of weather forecasting devices; 57
17. Peace and order policy formulation in local government units. 58
This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned. 59 What we have here is mutual support and cooperation between the military and civilian
authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military force
for domestic purposes has persisted, 60 and whose Constitution, unlike ours, does not expressly provide
for the power to call, the use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the Philippine Marines. Under
the Posse Comitatus Act 61 of the US, the use of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force asposse comitatus or otherwise to execute the laws shall be fined not
more than $10,000 or imprisoned not more than two years, or both. 62
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel,
the US courts 63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory 64 in nature, either presently or prospectively?

claiming relief. A mere threat of some future injury would be insufficient .

(italics supplied)
Even if the Court were to apply the above rigid standards to the present case to determine whether there
is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no
violation of the civilian supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A 65 does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do
not control or direct the operation. This is evident from Nos. 6, 66 8(k) 67 and
9(a) 68 of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d) 69 of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No.
8(c) 70 of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or
compulsory military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law
enforcement. 71
It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions,
however, are unfounded. The power to call the armed forces is just that calling out the armed forces.
Unless, petitioner IBP can show, which it has not, that in the deployment of the Marines, the President
has violated the fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the President's determination of the factual basis for the calling of
the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has
complained that his political or civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom only when people feel
secure in their homes and in the streets, not when the shadows of violence and anarchy constantly lurk
in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
||| (Integrated Bar of the Phil. v. Zamora, G.R. No. 141284, [August 15, 2000], 392 PHIL 618-675)

xxx xxx xxx

When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by
the Constitutionor a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those

55

EN BANC
[G.R. No. 160261. November 10, 2003.]
ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA MANANANGGOL NG
MGA MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS, petitioner-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G.
DE VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
DRILON, REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, respondents, 1 JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160262. November 10, 2003.]
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZON-ABAD,
petitioners, ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-inintervention, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitionerin-intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR
ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE
PRESIDENT FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-inintervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160263. November 10, 2003.]
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners, WORLD WAR II
VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES,
respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q.
PIMENTEL, respondent-in-intervention.
[G.R. No. 160277. November 10, 2003.]
FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention, vs. JOSE G. DE VENECIA, IN HIS CAPACITY AS
SPEAKER OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS
CAPACITY AS PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES,
GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY
LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS,
DOUGLAS CAGAS, SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ,
ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO

MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR.,

GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL ORTEGA, ULIRAN
JUAQUIN, SORAYA JAAFAR, WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE
GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III, AUGUSTO
SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO
PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO
MACIAS, ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS
BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC, GENEROSO TULAGAN,
PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS
COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO
LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH
SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ, RODOLFO PLAZA, JV
BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN
MIGUEL ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK COJUANGCO,
MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND
RUY ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR
AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160292. November 10, 2003.]
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioner-in-intervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P.
NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, AND THE HOUSE OF REPRESENTATIVES, respondents, JAIME N.
SORIANO, respondent-in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-inintervention.
[G.R. No. 160295. November 10, 2003.]
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners, WORLD
WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON,
respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR AQUILINO Q.
PIMENTEL, respondent-in-intervention.
[G.R. No. 160310. November 10, 2003.]
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE
RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH
LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U.

56

SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER,
AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF REPRESENTATIVES,
REPRESENTED BY HON. SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED
BY HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET AL.,
respondents.
[G.R. No. 160318. November 10, 2003.]
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON. SPEAKER JOSE G.
DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON. SENATE PRESIDENT
FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
[G.R. No. 160342. November 10, 2003.]
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR
OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY
AS A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE
HOUSE OF REPRESENTATIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF THE
HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.

[G.R. No. 160376. November 10, 2003.]

NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA AND GILBERT
TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES OF THE ARTICLES OF
IMPEACHMENT AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF
REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED BY ITS SPEAKER,
HON. JOSE G. DE VENECIA, respondents.
[G.R. No. 160392. November 10, 2003.]
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE OF
REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF THE
PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN DRILON, respondents.
[G.R. No. 160397. November 10, 2003.]
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO
G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
[G.R. No. 160403. November 10, 2003.]

[G.R. No. 160343. November 10, 2003.]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF REPRESENTATIVES,
THROUGH THE SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER JOSE
G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX
WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH ITS PRESIDENT,
SENATE PRESIDENT FRANKLIN M. DRILON, respondents.

PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF REPRESENTATIVES,

THROUGH THE SPEAKER OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT, HON.
FRANKLIN DRILON, respondents.
[G.R. No. 160405. November 10, 2003.]

[G.R. No. 160360. November 10, 2003.]

CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES THROUGH THE
SPEAKER, AND THE SENATE OF THE PHILIPPINES, THROUGH THE SENATE PRESIDENT,
respondents.
[G.R. No. 160365. November 10, 2003.]
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S.
RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners, vs. THE
HOUSE OF REPRESENTATIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE
PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES
OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED
THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G.
DAVIDE, JR., respondents.
[G.R. No. 160370. November 10, 2003.]
FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE PRESIDENT OF THE
SENATE, THE HONORABLE SPEAKER OF THE HOUSE OF REPRESENTATIVES, respondents.

DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.

MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEGE OF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCIATION OF CEBU, INC. [YLAC], REPRESENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES,
INC. [CAMP, INC.], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS
G. CO, PRESIDENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO
FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF
THE PHILIPPINES, CEBU CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTATIVES,
REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE PRESIDENT, respondents.

SYNOPSIS
On June 2, 2003, former President Joseph E. Estrada filed with the Office of the Secretary General of
the House of Representatives, a verified impeachment complaint against Chief Justice Hilario G.
Davide, Jr. and seven (7) other Associate Justices of the Court for violation of the Constitution, betrayal

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of public trust and, committing high crimes. The House Committee on Justice subsequently dismissed
said complaint on October 22, 2003 for insufficiency of substance.
The next day, or on October 23, 2003, Representatives Gilberto C. Teodoro, Jr., First District, Tarlac and
Felix William B. Fuentebella, Third District, Camarines Sur, filed another verified impeachment
complaint with the Office of the Secretary General of the House against Chief Justice Hilario G. Davide,
Jr., alleging underpayment of the COLA of the members and personnel of the judiciary from the JDF
and unlawful disbursement of said fund for various infrastructure projects and acquisition of service
vehicles and other equipment. Attached to the second impeachment complaint was a Resolution of
Endorsement/Impeachment signed by at least one-third (1/3) of all the members of the House of
Representatives. The complaint was set to be transmitted to the Senate for appropriate action.
Subsequently, several petitions were filed with this Court by members of the bar, members of the House
of Representatives and private individuals, asserting their rights, among others, as taxpayers, to stop the
illegal spending of public funds for the impeachment proceedings against the Chief Justice. Petitioners
contended that the filing of second impeachment complaint against the Chief Justice was barred under
Article XI, Sec. 3 (5) of the 1987 Constitution which states that "no impeachment proceedings shall be
initiated against the same official more than once within a period of one year."
The Supreme Court held that the second impeachment complaint filed against Chief Justice Hilario G.
Davide, Jr. was unconstitutional or barred under Article XI, Sec. 3 (5) of the 1987 Constitution.
Petitioners, as taxpayers, had sufficient standing to file the petitions to prevent disbursement of public
funds amounting to millions of pesos for an illegal act. The petitions were justiciable or ripe for
adjudication because there was an actual controversy involving rights that are legally demandable.
Whether the issues present a political question, the Supreme Court held that only questions that are truly
political questions are beyond judicial review. The Supreme Court has the exclusive power to resolve
with definitiveness the issues of constitutionality. It is duty bound to take cognizance of the petitions to
exercise the power of judicial review as the guardian of the Constitution.
SYLLABUS
1.POLITICAL LAW; POWER OF JUDICIAL REVIEW; INCLUDES THE DUTY TO CURB GRAVE
ABUSE OF DISCRETION BY "ANY BRANCH OR INSTRUMENTALITY OF GOVERNMENT."
This Court's power of judicial review is conferred on the judicial branch of the government in Section l,
Article VIII of our present 1987 Constitution. . . As pointed out by Justice Laurel, this "moderating
power" to "determine the proper allocation of powers" of the different branches of government and "to
direct the course of government along constitutional channels" is inherent in all courts as a necessary
consequence of the judicial power itself, which is "the power of the court to settle actual controversies
involving rights which are legally demandable and enforceable.". . In the scholarly estimation of former
Supreme Court Justice Florentino Feliciano, ". . . judicial review is essential for the maintenance and
enforcement of the separation of powers and the balancing of powers among the three great departments
of government through the definition and maintenance of the boundaries of authority and control
between them." To him,"[j]udicial review is the chief, indeed the only, medium of participation or
instrument of intervention of the judiciary in that balancing operation." To ensure the potency of the
power of judicial review to curb grave abuse of discretion by "any branch or instrumentalities of
government." the afore-quoted Section 1, Article VIII of the Constitution engraves, for the first time into
its history, into block letter law the so-called "expanded certiorari jurisdiction" of this court.
2.ID.; ID.; ID.; AMERICAN JURISPRUDENCE AND AUTHORITIES CONFERRING UPON THE
LEGISLATURE THE DETERMINATION OF ALL ISSUES PERTAINING TO IMPEACHMENT TO
THE TOTAL EXCLUSION OF THE POWER OF JUDICIAL REVIEW ARE OF DUBIOUS
APPLICATION WITHIN OUR JURISDICTION; CASE AT BAR. Respondents' and intervenors'
reliance upon American jurisprudence, the American Constitution and American authorities cannot be

credited to support the proposition that the Senate's "sole power to try and decide impeachment cases,"
as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable constitutional
commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of the
power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it
reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial
power to determine constitutional questions incident to impeachment proceedings. Said American
jurisprudence and authorities, much less the American Constitution, are of dubious application for these
are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC, "[i]n resolving
constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are
hardly applicable because they have been dictated by different constitutional settings and needs."
Indeed, although the Philippine Constitution can trace its origins to that of the United States, their paths
of development have long since diverged. In the colorful words of amicius curiae Father Bernas, "[w]e
have cut the umbilical cord."
3.ID.; ID.; ID.; DIFFERENCE BETWEEN THE JUDICIAL POWER OF THE PHILIPPINE
SUPREME COURT AND THAT OF THE U.S. SUPREME COURT AND DISTINCTIONS
BETWEEN THE PHILIPPINE AND U.S. CONSTITUTIONS. The major difference between the
judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the
power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in
nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the
Constitution, is not just a power but also a duty, and it was given an expanded definition to include the
power to correct any grave abuse of discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with
respect to the power of the House of Representatives over impeachment proceedings. While the U.S.
Constitution bestows sole power of impeachment to the House of Representatives without limitation,
our Constitution, though vesting in the House of Representatives the exclusive power to initiate
impeachment cases, provides for several limitations to the exercise of such power as embodied in
Section 3(2), (3). (4) and (5), Article XI thereof. These limitations include the manner of filing, required
vote to impeach, and the one year bar on the impeachment of one and the same official.
4.ID.; ID.; POWER EXCLUSIVELY VESTED IN THE JUDICIARY; CONGRESS HAS NO POWER
TO RULE ON THE ISSUE OF CONSTITUTIONALITY. The futility of seeking remedies from
either or both Houses of Congress before coming to this Court is shown by the fact that, as previously
discussed, neither the House of Representatives nor the Senate is clothed with the power to rule with
definitiveness on the issue of constitutionality, whether concerning impeachment proceedings or
otherwise, as said power is exclusively vested in the judiciary by the earlier quoted Section 1, Article
VIII of the Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.
5.ID.; ID.; JUDICIAL POWER IS NOT ONLY A POWER BUT ALSO A DUTY; ONLY "TRULY
POLITICAL QUESTIONS" ARE BEYOND JUDICIAL REVIEW. From the foregoing record of the
proceedings of the 1986 Constitutional Commission, it is clear that judicial power is not only a power; it
is also a duty, a duty which cannot be abdicated by the mere specter of this creature called the political
question doctrine. Chief Justice Concepcion hastened to clarify, however, that Section 1, Article VIII
was not intended to do away with "truly political questions." From this clarification it is gathered that
there are two species of political questions: (1) "truly political questions" and (2) those which "are not
truly political questions." Truly political questions are thus beyond judicial review, the reason being that
respect for the doctrine of separation of powers must be maintained. On the other hand. by virtue of
Section 1, Article VIII of the Constitution, courts can review questions which are not truly political in
nature.
6.ID.; ID.; EXERCISE OF JUDICIAL RESTRAINT OVER JUSTICIABLE ISSUES IS NOT AN
OPTION; COURT IS DUTY BOUND TO TAKE COGNIZANCE OF PETITIONS IN CASE AT BAR.

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 The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be
renounced as there is no other tribunal to which the controversy may be referred."Otherwise, this Court
would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being
clothed with authority thus, this Court is duty-bound to take cognizance of the instant petitions. In the
august words of amicus curiae Father Bernas "jurisdiction is not just a power; it is a solemn duty which
may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty." Even in
cases where it is an interested party, the Court under our system of government cannot inhibit itself and
must rule upon the challenge because no other office has the authority to do so. On the occasion when
this Court had been an interested party to the controversy before it, it had acted upon the matter "not
with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and
fairness." After all, "by [his] appointment to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of their varied
contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render justice, toi be
unafraid to displease any person, interest or power and to equipped with a moral fiber strong enough to
resist the temptation lurking in [his] office."

7.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT POWER; ONE-YEAR BAN

PROHIBITING THE INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST THE SAME
OFFICIALS UNDER SECTION 3(5) OF THE CONSTITUTION; MEANING OF TIE TERM
"INITIATE"; CASE AT BAR. From the records of the Constitutional Commission, to the amicus
curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate"
refers to the filing of the impeachment complaint coupled with Congress' taking initial action on said
complaint. Having concluded that the initiation takes place by the act of filing and referral or
endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at
least one-third of the members of the House of Representatives with the Secretary General of the House,
the meaning of Section 3(5) of Article XI becomes clear. Once an impeachment complaint has been
initiated, another impeachment complaint may not be filed against the same official within a one year
period.
8.ID.; ID.; ID.; POWER OF CONGRESS TO MAKE AND INTERPRET ITS RULES ON
IMPEACHMENT IS NOT ABSOLUTE; IMPEACHMENT RULES MUST EFFECTIVELY CARRY
OUT THE PURPOSE OF THE CONSTITUTION. Respondent House of Representatives counters
that under Section 3 (8) of Article XI, it is clear and unequivocal that it and only it has the power to
make and interpret its rules governing impeachment. Its argument is premised on the assumption that
Congress has absolute power to promulgate its rules. This assumption, however, is misplaced. Section
3(8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to effectively
carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is
limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot
contravene the very purpose of the Constitution which said rules were intended to effectively carry out.
Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make
rules.
VITUG, J., separate opinion:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; NOT FORECLOSED
BY THE ISSUE OF "POLITICAL QUESTION" ON AN ASSAILED ACT OF A BRANCH OF
GOVERNMENT WHERE DISCRETION HAS NOT, IN FACT BEEN VESTED, YET ASSUMED
AND EXERCISED. The Court should not consider the issue of "political question" as foreclosing
judicial review on an assailed act of a branch of government in instances where discretion has not, in
fact, been vested, yet assumed and exercised. Where, upon the other hand, such discretion is given, the

"political question doctrine" may be ignored only if the Court sees such review as necessary to void an
action committed with grave abuse of discretion amounting to lack or excess of jurisdiction. In the latter
case, the constitutional grant of the power of judicial review vested by the Philippine Constitution on the
Supreme Court is rather clear and positive, certainly and textually broader and more potent than where it
has been borrowed.
2.ID.; ID.; SCOPE OF POWER UNDER THE 1987 CONSTITUTION, EXPANDED; VIOLATIONS
OF CONSTITUTIONAL MANDATES ARE SUBJECT TO JUDICIAL INQUIRY; SUPREME COURT
AS THE ULTIMATE ARBITER ON, AND THE ADJUDGED SENTINEL OF THE CONSTITUTION.
The 1987 Constitution has, in good measure, "narrowed the reach of the `political question doctrine'
by expanding the power of judicial review of the Supreme Court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to determine whether or not
grave abuse of discretion has attended an act of any branch or instrumentality of government. When
constitutional limits or proscriptions are expressed, discretion is effectively withheld. Thus, issues
pertaining to who are impeachable officers, the number of votes necessary to impeach and the
prohibition against initiation of impeachment proceeding twice against the same official in a single year,
provided for in Sections 2, 3, and 4, and 5 of Article XI of the Constitution, verily are subject to judicial
inquiry, and any violation or disregard of these explicit Constitutional mandates can be struck down by
the Court in the exercise of judicial power. In so doing, the Court does not thereby arrogate unto itself,
let alone assume superiority over, nor undue interference into the domain of, a co-equal branch of
government, but merely fulfills its constitutional duty to uphold the supremacy of the Constitution. The
judiciary may be the weakest among the three branches of government but it concededly and rightly
occupies the post of being the ultimate arbiter on, and the adjudged sentinel of, the Constitution.
3.ID.; LEGISLATIVE DEPARTMENT; IMPEACHMENT PROCEEDINGS; ONE-YEAR BAN
PROHIBITING THE INITIATION OF A SECOND IMPEACHMENT COMPLAINT AGAINST THE
SAME OFFICIALS UNDER SECTION 3(5) OF THE CONSTITUTION; MEANING OF THE TERM,
"INITIATE"; CASE AT BAR. I would second the view that the term "initiate" should be construed as
the physical act of filing the complaint, coupled with an action by the House taking cognizance of it,
i.e., referring the complaint to the proper Committee. Evidently, the House of Representatives had taken
cognizance of the first complaint and acted on it 1) The complaint was filed on 02 June 2003 by
former President Joseph Estrada along with the resolutions of endorsement signed by three members of
the House of Representatives; 2) on 01 August 2003, the Speaker of the House directed the chairman of
the House Committee on Rules, to include in the Order of Business the complaint; 3) on 13 October
2003, the House Committee on Justice included the complaint in its Order of Business and ruled that the
complaint was sufficient in form; and 4) on 22 October 2003, the House Committee on Justice
dismissed the complaint for impeachment against the eight justices, including Chief Justice Hilario
Davide, Jr., of the Supreme Court, for being insufficient in substance. The following day, on 23 October
2003, the second impeachment complaint was filed by two members of the House of Representatives,
accompanied by an endorsement signed by at least one-third of its membership, against the Chief
Justice.
PANGANIBAN, J. separate concurring opinion:
POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; HAS THE DUTY TO
DETERMINE WHETHER ANY INCIDENT OF THE IMPEACHMENT PROCEEDING VIOLATES
ANY CONSTITUTIONAL PROHIBITION; CASE AT BAR. The constitution imposes on the
Supreme court the duty to rule on unconstitutional acts of "any" branch or instrumentality of
government. Such duty is plenary, extensive and admits of no exceptions. While the Court is not
authorized to pass upon the wisdom of an impeachment, it is nonetheless obligated to determine whether
any incident of the impeachment proceedings violates any constitutional prohibition, condition or
limitation imposed on its exercise. Thus, normally, the Court may not inquire into how and why the
house initiates an impeachment complaint. But if in initiating one, it violates a constitutional
prohibition, condition or limitation on the exercise thereof, then the Court as the protector and

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interpreter of the Constitution is duty-bound to intervene and "to settle" the issue. . . In the present cases,
the main issue is whether, in initiating the second Impeachment Complaint, the House of
Representatives violated Article XI, Section 3(5), which provides that "[n]o impeachment proceedings
shall be initiated against the same official more than once within a period of one year." The
interpretation of this constitutional prohibition or condition as it applies to the second Impeachment
Complaint clearly involves the "legality, not the wisdom" of the acts of the House of Representatives.
Thus, the Court must "settle it."
SANDOVAL-GUTIERREZ, J., separate concurring opinion:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; COURT SHOULD DO
ITS DUTY TO INTERPRET THE LAW EVEN IF THERE IS A DANGER OF EXPOSING THE
COURT'S INABILITY IN GIVING EFFICACY TO ITS JUDGMENT. Confronted with an issue
involving constitutional infringement, should this Court shackle its hands under the principle of judicial
self restraint? The polarized opinions of the amici curiae is that by asserting its power of judicial review,
this Court can maintain the supremacy of the Constitution but at the same time invites a disastrous
confrontation with the House of Representatives. A question repeated almost to satiety is what if the
House holds its ground and refuses to respect the Decision of this Court? It is argued that there will be a
Constitutional crisis. Nonetheless, despite such impending scenario, I believe this Court should do its
duty mandated by the Constitution, seeing to it that it acts within the bounds of its authority. The 1987
Constitution speaks of judicial prerogative not only in terms of power but also of duty. As the last
guardian of the Constitution, the Court's duty is to uphold and defend it at all times and for all persons.
It is a duty this Court cannot abdicate. It is a mandatory and inescapable obligation made particularly
more exacting and peremptory by the oath of each member of this Court. Judicial reluctance on the face
of a clear constitutional transgression may bring about the death of the rule of law in this country. Yes,
there is indeed a danger of exposing the Court's inability in giving efficacy to its judgment. But is it not
the way in our present system of government? The Legislature enacts the law, the Judiciary interprets it
and the Executive implements it. It is not for the Court to withhold its judgment just because it would be
a futile exercise of authority. It should do its duty to interpret the law.
2.ID.; ID.; ID.; IMPEACHMENT PROCEEDINGS; SUPREME COURT HAS POWER TO DECLARE
HOUSE RULES OR ACT UNCONSTITUTIONAL IF FORBIDDEN BY THE CONSTITUTION.
While the power to initiate all cases of impeachment is regarded as a matter of "exclusive" concern only
of the House of Representatives, over which the other departments may not exercise jurisdiction by
virtue of the separation of powers established by the fundamental law, it does not follow that the House
of Representatives may not overstep its own powers defined and limited by the Constitution. Indeed, it
cannot, under the guise of implementing its Rules, transgress the Constitution, for when it does, its act
immediately ceases to be a mere internal concern. Surely, by imposing limitations on specific powers of
the House of Representatives, a fortiori, the Constitution has prescribed a diminution of its "exclusive
power." I am sure that the honorable Members of the House who took part in the promulgation and
adoption of its internal rules on impeachment did not intend to disregard or disobey the clear mandate of
the Constitution the law of the people. And I confidently believe that they recognize, as fully as this
Court does, that the Constitution is the supreme law of the land, equally binding upon every branch or
department of the government and upon every citizen, high or low. It need not be stressed that under our
present form of government, the executive, legislative and judicial departments are coequal and coimportant. But it does not follow that this Court, whose Constitutional primary duty is to interpret the
supreme law of the land, has not the power to declare the House Rules unconstitutional. Of course, this
Court will not attempt to require the House of Representatives to adopt a particular action, but it is
authorized and empowered to pronounce an action null and void if found to be contrary to the
provisions of the Constitution.

3.ID.; ID.; ID.; IMPEACHMENT CASES; PETITIONERS, AS TAXPAYERS, HAVE LOCUS STANDI
TO QUESTION VALIDITY OF THE SECOND IMPEACHMENT COMPLAINT AGAINST THE
CHIEF JUSTICE. Indeed, the present suits involve matters of first impression and of immense
importance to the public considering that, as previously stated, this is the first time a Chief Justice of the
Supreme Court is being subjected to an impeachment proceeding which, according to petitioners, is
prohibited by the Constitution. Obviously, if such proceeding is not prevented and nullified, public
funds amounting to millions of pesos will be disbursed for an illegal act. Undoubtedly, this is a grave
national concern involving paramount public interest. The petitions are properly instituted to avert such
a situation.
CORONA, J., separate opinion:
1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT; PURPOSE; INTENDED TO
BE AN INSTRUMENT OF LAST RESORT. Impeachment has been described as sui generis and an
"exceptional method of removing exceptional public officials (that must be) exercised by the Congress
with exceptional caution." Thus, it is directed only at an exclusive list of officials, providing for
complex procedures, exclusive grounds and every stringent limitations. The implied constitutional
caveat on impeachment is that Congress should use that awesome power only for protecting the welfare
of the state and the people, and not merely the personal interests of a few. There exists no doubt in my
mind that the framers of the Constitution intended impeachment to be an instrument of last resort, a
draconian measure to be exercised only when there are no other alternatives available. It was never
meant to be a bargaining chip, much less a weapon for political leverage. Unsubstantiated allegations,
mere suspicions of wrongdoing and other less than serious grounds, needless to state, preclude its
invocation or exercise.
2.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; SUPREME COURT
HAS THE DUTY TO DECIDE PENDING PETITIONS TO MAINTAIN THE SUPREMACY OF THE
CONSTITUTION IN CASE AT BAR. The Court has the obligation to decide on the issues before us
to preserve the hierarchy of laws and to maintain the supremacy of the rule of the Constitution over the
rule of men, . . .The Court should not evade its duty to decide the pending petitions because of its sworn
responsibility as the guardian of the Constitution. To refuse cognizance of the present petitions merely
because they indirectly concern the Chief Justice of this Court is to skirt the duty of dispensing fair and
impartial justice. Furthermore, refusing to assume jurisdiction under these circumstances will run afoul
of the great traditions of our democratic way of life and the very reason why this Court exists in the first
place.
3.ID.; ID.; ID.; ID.; SCOPE OF POWER UNDER THE 1987 CONSTITUTION EXPANDED.
Under the new definition of judicial power embodied in Article VIII, Section 1, courts of justice have
not only the authority but also the duty to "settle actual controversies involving rights which are legally
demandable and enforceable" and "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government." The Court can therefore, in certain situations provided in the Constitution itself, inquire
into the acts of Congress and the President, though with great hesitation and prudence owing to mutual
respect and comity. Among these situations, in so far as the pending petitions are concerned, are (1)
issues involving constitutionality and (2) grave abuse of discretion amounting to lack of or excess of
jurisdiction on the part of any branch of the government. These are the strongest reasons for the Court to
exercise its jurisdiction over the pending cases before us.
CALLEJO, SR., J., separate opinion:
POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; IMPEACHMENT
CASES; SUPREME COURT HAS THE DUTY TO CONSIDER WHETHER THE PROCEEDINGS IN
CONGRESS ARE IN CONFORMITY WITH THE CONSTITUTION. Under Section 1, Article VIII
of the Constitution, "judicial power is vested in the Supreme Court and in such lower courts as may be
established by law. The judicial power of the Court includes the power to settle controversies involving

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rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the branch or
instrumentality of the Government." In Estrada v. Desierto, this Court held that with the new provision
in the Constitution, courts are given a greater prerogative to determine what it can do to prevent grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. The constitution is the supreme law on all governmental agencies,
including the House of Representatives and the Senate. Under Section 4(2), Article VIII of the
Constitution, the Supreme Court is vested with jurisdiction over cases involving the constitutionality,
application and operation of government rules and regulations, including the constitutionality,
application and operation of rules of the House of Representatives, as well as the Senate. It is competent
and proper for the Court to consider whether the proceedings in Congress are in conformity with the
Constitution and the law because living under the Constitution, no branch or department of the
government is supreme; and it is the duty of the judiciary to determine cases regularly brought before
them, whether the powers of any branch of the government and even those of the legislative enactment
of laws and rules have been exercised in conformity with the Constitution; and if they have not, to treat
their acts as null and void. Under Section 5, Article VIII of the Constitution, the Court has exclusive
jurisdiction over petitions for certiorari and prohibition. The House of Representatives may have the
sole power to initiate impeachment cases, and the Senate the sole power to try and decide the said cases,
but the exercise of such powers must be in conformity with and not in derogation of the Constitution.
AZCUNA, J., separate opinion:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW; PETITIONERS, AS
TAXPAYERS, HAVE LOCUS STANDI TO QUESTION VALIDITY OF THE SECOND
IMPEACHMENT COMPLAINT AGAINST THE CHIEF JUSTICE; JUSTICIABILITY OF
PETITIONS IN CASE AT BAR. There can be no serious challenge as to petitioners' locus standi.
Eight are Members of the House of Representatives, with direct interest in the integrity of its
proceedings. Furthermore, petitioners as taxpayers have sufficient standing, in view of the
transcendental importance of the issue at hand. It goes beyond the fate of Chief Justice Davide, as it
shakes the very foundations of our system of government and poses a question as to our survival as a
democratic polity. There is, moreover, an actual controversy involving rights that are legally
demandable, thereby leaving no doubt as to the justiciability of the petitions.
2.ID.; ID.; ID.; IMPEACHMENT CASES; SUPREME COURT HAS THE DUTY TO CONSIDER
WHETHER THE PROCEEDINGS THEREIN CONFORM WITH THE CONSTITUTION. Unlike
the Constitutions of other countries, that of the Philippines, our Constitution, has opted textually to
commit the sole power and the exclusive power to this and to that Department or branch of government,
but in doing so it has further provided specific procedures and equally textually identifiable limits to the
exercise of those powers. Thus, the filing of the complaint for impeachment is provided for in detail as
to who may file and as to what shall be done to the complaint after it is filed, the referral to the proper
Committee, its hearing, its voting, its report to the House, and the action of the House thereon, and the
timeframes for every step (Subsection 2). Similarly, the required number of votes to affirm or override a
favorable or contrary resolution is stated (Subsection 3). So, also, what is needed for a complaint or
resolution of impeachment to constitute the Articles of Impeachment, so that trial by the Senate shall
forthwith proceed, is specifically laid down, i.e., a verified complaint or resolution of impeachment filed
by at least one-third of all the Members of the House (Subsection 4). It is my view that when the
Constitution not only gives or allocates the power to one Department or branch of government, be it
solely or exclusively, but also, at the same time, or together with the grant or allocation, specifically
provides certain limits to its exercise, then this Court, belonging to the Department called upon under
the Constitution to interpret its provisions, has the jurisdiction to do so. And, in fact, this jurisdiction of
the Court is not so much a power as a duty, as clearly set forth in Article VIII, Section 1 of the
Constitution.

3.ID.; LEGISLATION DEPARTMENT; IMPEACHMENT; ONE-YEAR BAN PROHIBITING THE

INITIATION THEREOF AGAINST THE SAME OFFICIALS UNDER ARTICLE XI, SECTION 3(5)
OF THE CONSTITUTION; MEANING OF THE TERM "INITIATE." It is also contended that the
provision of Article XI, Sec. 3 (5) refers to impeachment proceedings in the Senate, not in the House of
Representatives. This is premised on the wording of Article XI, Sec. 3 (1) which states that "The House
of Representatives shall have the exclusive power to initiate all cases of impeachment." Thus, it is
argued, cases of impeachment are initiated only by the filing thereof by the House of Representatives
with the Senate, so that impeachment proceedings are those that follow said filing. This interpretation
does violence to the carefully allocated division of power found in Article XI, Sec. 3. Precisely, the first
part of the power is lodged with the House, that of initiating impeachment, so that a respondent hailed
by the House before the Senate is a fact and in law already impeached. What the House initiates in the
Senate is an impeachment CASE, not PROCEEDINGS. The proceedings for impeachment preceded
that and took place exclusively in the House (in fact, non-members of the House cannot initiate it and
there is a need for a House member to endorse the complaint). And what takes place in the Senate is the
trial and the decision. For this reason, Subsections (1) to (5) of Article XI, Section 3 apply to the House
whereas Subsections (6) and (7) apply to the Senate, and Subsection (8) applies to both, or to
"Congress." There is therefore a sequence or order in these subsections, and the contrary view
disregards the same.

TINGA, J., separate opinion:

1.POLITICAL LAW; LEGISLATIVE DEPARTMENT; IMPEACHMENT, NATURE OF. On the
question of whether it is proper for this Court to decide the petitions, it would be useless for us to
pretend that the official being impeached is not a member of this Court, much less the primus inter
pares. Simplistic notions of rectitude will cause a furor over the decision of this Court, even if it is the
right decision. Yet we must decide this case because the Constitution dictates that we do so. The most
fatal charge that can be levied against this Court is that it did not obey the Constitution. The Supreme
Court cannot afford, as it did in the Javellana case, to abdicate its duty and refuse to address a
constitutional violation of a co-equal branch of government just because it feared the political
repercussions. And it is comforting that this Court need not rest merely on rhetoric in deciding that it is
proper for it to decide the petitions, despite the fact that the fate of the Chief Justice rests in the balance.
Jurisprudence is replete with instances when this Court was called upon to exercise judicial duty,
notwithstanding the fact that the application of the same could benefit one or all members of the Court.
Nevertheless, this does not mean that the second impeachment complaint is forever barred; only that it
should be dismissed without prejudice to its re-filing after one year from the filing of the first
impeachment complaint. Indeed, this Court cannot deprive the House of the exclusive power of
impeachment lodged in the House by the Constitution. In taking cognizance of this case, the Court does
not do so out of empathy or loyalty for one of our Brethren. Nor does it do so out of enmity or loathing
toward the Members of a co-equal branch, whom I still call and regard as my Brethren. The Court, in
assuming jurisdiction over this case, to repeat, does so only out of duty, a duty reposed no less by the
fundamental law.
2.ID.; ID.; ID.; SENATE HAS NO AUTHORITY TO PASS UPON THE HOUSE RULES ON
IMPEACHMENT. Despite suggestions to the contrary, I maintain that the Senate does not have the
jurisdiction to determine whether or not the House Rules of Impeachment violate the Constitution. As I
earlier stated, impeachment is not an inherent legislative function, although it is traditionally conferred
on the legislature. It requires the mandate of a constitutional provision before the legislature can assume
impeachment functions. The grant of power should be explicit in the Constitution. It cannot be readily
carved out of the shade of a presumed penumbra. In this case, there is a looming prospect that an invalid
impeachment complaint emanating from an unconstitutional set of House rules would be presented to
the Senate for action. The proper recourse would be to dismiss the complaint on constitutional grounds.

61

Yet, from the Constitutional and practical perspectives, only this Court may grant that relief. The Senate
cannot be expected to declare void the Articles of Impeachment, as well as the offending Rules of the
House based on which the House completed the impeachment process. The Senate cannot look beyond
the Articles of Impeachment. Under the Constitution, the Senate's mandate is solely to try and decide the
impeachment complaint. While the Senate acts as an impeachment court for the purpose of trying and
deciding impeachment cases, such "transformation" does not vest unto the Senate any of the powers
inherent in the Judiciary, because impeachment powers are not residual with the Senate. Whatever
powers the Senate may acquire as an impeachment court are limited to what the Constitution provides,
if any, and they cannot extend to judicial-like review of the acts of co-equal components of government,
including those of the House. Pursuing the concept of the Senate as an impeachment court, its
jurisdiction, like that of the regular courts,' has to be conferred by law and it cannot be presumed. This is
the principle that binds and guides all courts of the land, and it should likewise govern the impeachment
court, limited as its functions may be. There must be an express grant of authority in the Constitution
empowering the Senate to pass upon the House Rules on Impeachment.
3.ID.; ID.; INTER-CHAMBER COURTESY; ANY ATTEMPT OF THE SENATE TO INVALIDATE
THE HOUSE RULES OF IMPEACHMENT IS OBNOXIOUS TO INTER-CHAMBER COURTESY.
Ought to be recognized too is the tradition of comity observed by members of Congress commonly
referred to as "inter-chamber courtesy." It is simply the mutual deference accorded by the chambers of
Congress to each other. Thus, "the opinion of each House should be independent and not influenced by
the proceedings of the other." While inter-chamber courtesy is not a principle which has attained the
level of a statutory command, it enjoys a high degree of obeisance among the members of the
legislature, ensuring as it does the smooth flow of the legislative process. It is my belief that any attempt
on the part of the Senate to invalidate the House Rules of Impeachment is obnoxious to inter-chamber
courtesy. If the Senate were to render these House Rules unconstitutional, it would set an unfortunate
precedent that might engender a wrong-headed assertion that one chamber of Congress may invalidate
the rules and regulations promulgated by the other chamber. Verily, the duty to pass upon the validity of
the House Rules of Impeachment is imposed by the Constitution not upon the Senate but upon this
Court.
4.ID.; SUPREME COURT; POWER OF JUDICIAL REVIEW; SUPREME COURT HAS THE DUTY
TO ADDRESS CONSTITUTIONAL VIOLATION OF A CO-EQUAL BRANCH OF GOVERNMENT,
EVEN IF IT WOULD REDOUND TO THE BENEFIT OF ONE, SOME OR EVEN ALL MEMBERS
OF THE COURT. On the question of whether it is proper for this Court to decide the petitions, it
would be useless for us to pretend that the official being impeached is not a member of this Court, much
less the primus inter pares. Simplistic notions of rectitude will cause a furor over the decision of this
Court, even if it is the right decision. Yet we must decide this case because the Constitution dictates that
we do so. The most fatal charge that can be levied against this Court is that it did not obey the
Constitution. The Supreme Court cannot afford, as it did in the Javellana case, to abdicate its duty and
refuse to address a constitutional violation of a co-equal branch of government just because it feared the
political repercussions. And it is comforting that this Court need not rest merely on rhetoric in deciding
that it is proper for it to decide the petitions, despite the fact that the fate of the Chief Justice rests in the
balance. Jurisprudence is replete with instances when this Court responded to the call of judicial duty,
notwithstanding the fact that the performance of the duty would ultimately redound to the benefit of
one, some or even all members of the Court. . . Indeed, this Court cannot deprive the House of the
exclusive power of impeachment lodged in the House by the Constitution. In taking cognizance of this
case, the Court does not do so out of empathy or loyalty for one of our Brethren. Nor does it do so out of
enmity or loathing toward the Members of a coequal branch, whom I still call and regard as my
Brethren. The Court, in assuming jurisdiction over this case, to repeat, does so only out of duty, a duty
reposed no less by the fundamental law.
PUNO, J., concurring and dissenting:

1.POLITICAL LAW; IMPEACHMENT PROCEEDINGS; HISTORIOGRAPHY OF OUR

IMPEACHMENT PROVISIONS SHOW INHERENT NATURE OF IMPEACHMENT AS
POLITICAL. The historiography of our impeachment provisions will show that they were liberally
lifted from the US Constitution. Following an originalist interpretation, there is much to commend to the
thought that they are political in nature and character. The political character of impeachment hardly
changed in our 1935, 1973 and 1987 Constitutions. Thus, among the grounds of impeachment are "other
high crimes or betrayal of public trust." They hardly have any judicially ascertainable content. The
power of impeachment is textually committed to Congress, a political branch of government. The right
to accuse is exclusively given to the House of Representatives. The right to try and decide is given
solely to the Senate and not to the Supreme Court. The Chief Justice has a limited part in the process . . .
to preside but without the right to vote when the President is under impeachment. Likewise, the
President cannot exercise his pardoning power in cases of impeachment. All these provisions confirm
the inherent nature of impeachment as political.
2.ID.; ID.; ID.; REENGINEERED CONCEPT OF OUR IMPEACHMENT IS NOW A COMMIXTURE
OF POLITICAL AND JUDICIAL COMPONENTS; RIGHT OF CHIEF JUSTICE AGAINST THE
INITIATION OF A SECOND IMPEACHMENT WITHIN ONE YEAR IS A JUSTICIABLE ISSUE.
Be that as it may, the purity of the political nature of impeachment has been lost. Some legal scholars
characterize impeachment proceedings as akin to criminal proceedings. Thus, they point to some of the
grounds of impeachment like treason, bribery, graft and corruption as well defined criminal offenses.
They stress that the impeached official undergoes trial in the Senate sitting as an impeachment court. If
found guilty, the impeached official suffers a penalty "which shall not be further than removal from
office and disqualification to hold any office under the Republic of the Philippines." I therefore
respectfully submit that there is now a commixture of political and judicial components in our
reengineered concept of impeachment. It is for this reason and more that impeachment proceedings A
classified as sui generis. To be sure, our impeachment proceedings are indigenous, a kind of its own.
They have been shaped by our distinct political experience especially in the last fifty years. EDSA
People Power I resulted in the radical rearrangement of the powers of government in the 1987
Constitution.

3.ID.; ID.; INITIATION THEREOF AND ITS DECISION ARE INITIALLY BEST LEFT TO
CONGRESS; COORDINACY THEORY OF CONSTITUTIONAL INTERPRETATION AND
PRUDENTIAL CONSIDERATIONS DEMAND DEFERMENT OF COURT'S EXERCISE OF
JURISDICTION OVER PETITIONS; CASE AT BAR. I most respectfully submit, that the 1987
Constitution adopted neither judicial restraint nor judicial activism as a political philosophy to the
exclusion of each other. The expanded definition of judicial power gives the Court enough elbow room
to be more activist in dealing with political questions but did not necessarily junk restraint in resolving
them. Political questions are not undifferentiated questions. They are of different variety. The
antagonism between judicial restraint and judicial activism is avoided by the coordinacy theory of
constitutional interpretation. This coordinacy theory gives room for judicial restraint without allowing
the judiciary to abdicate its constitutionally mandated duty to interpret the constitution. Coordinacy
theory rests on the premise that within the constitutional system, each branch of government has an
independent obligation to interpret the Constitution. This obligation is rooted on the system of
separation of powers. The oath to "support this Constitution" which the constitution mandates judges,
legislators and executives to take proves this independent obligation. Thus, the coordinacy theory
accommodates judicial restraint because it recognizes that the President and Congress also have an
obligation to interpret the constitution. In fine, the Court, under the coordinacy theory, considers the
preceding constitutional judgments made by other branches of government. By no means however, does
it signify complete judicial deference. Coordinacy means courts listen to the voice of the President and
Congress but their voice does not silence the judiciary. The doctrine in Marbury v. Madison that courts

62

are not bound by the constitutional interpretation of other branches of government still rings true. As
well stated, "the coordinacy thesis is quite compatible with a judicial deference that accommodates the
views of other branches, while not amounting to an abdication of judicial review." With due respect, I
cannot take the extreme position of judicial restraint that always defers on the one hand, or judicial
activism that never defers on the other. I prefer to take the contextual approach of the coordinacy theory
which considers the constitution's allocation of decision-making authority, the constitution's judgments
as to the relative risks of action and inaction by each branch of government, and the fears and
aspirations embodies in the different provisions of the constitution. The contextual approach better
attends to the specific character of particular constitutional provisions and calibrates deference or
restraint accordingly on a case to case basis. In doing so, it allows the legislature adequate leeway to
carry out their constitutional duties while at the same time ensuring that any abuse does not undermine
important constitutional principles. . . Their correct calibration will compel the conclusion that this
Court should defer the exercise of its ultimate jurisdiction over the petitions at bar out of prudence and
respect to the initial exercise by the legislature of its jurisdiction over impeachment proceedings.
YNARES-SANTIAGO, J., concurring and dissenting:
1.POLITICAL LAW; SUPREME COURT; POWER OF JUDICIAL REVIEW ; IMPEACHMENT
PROCEEDINGS; SUPREME COURT HAS THE DUTY TO REVIEW THE CONSTITUTIONALITY
OF THE ACTS OF CONGRESS. I also concur with the ponente that the Court has the power of
judicial review: This power of the Court has been expanded by the Constitution not only to settle actual
controversies involving rights which are legally demandable and enforceable but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of an branch or instrumentality of government. The court is under mandate to assume
jurisdiction over, and to undertake judicial inquiry into, what may even be deemed to be political
questions provided, however, that grave abuse of discretion the sole test of justiciability on purely
political issues is shown to have attended the contested act. The Court checks the exercise of power
of the other branches of government through judicial review. It is the final arbiter of the disputes
involving the proper allocation and exercise of the different powers under the Constitution. When the
Supreme Court reviews the Constitutionality of the acts of Congress, it does not thereby assert its
superiority over a co-equal branch of government. It merely asserts its solemn and sacred obligation
under the Constitution and affirms constitutional supremacy. Indeed, in the resolution of the principal
issue in these petitions, a distinction has to be drawn between the power of the members of the House of
Representatives to initiate impeachment proceedings, on the one hand, and the manner in which they
have exercised that power. While it is clear that the House has the exclusive power to initiate
impeachment cases, and the Senate has the sole power to try and decide these cases, the Court, upon a
proper finding that either chamber committed, grave abuse of discretion or violated any constitutional
provision, may invoke its corrective power of judicial review.
2.ID.; LEGISLATIVE DEPARTMENT; IMPEACHMENT PROCEEDINGS; ONE-YEAR BAN
PROHIBITING THE INITIATION OF IMPEACHMENT CASE AGAINST THE SAME
OFFICIALS UNDER SECTION 3(5) OF THE CONSTITUTION; MEANING OF THE TERM
"INITIATE. The meaning of the word "initiate" in relation to impeachment is at the center of much
debate. The confusion as to the meaning of this term was aggravated by the amendment of the House of
Representatives' Rules of Procedure in Impeachment Proceedings. The first set of Rules adopted on
May 31, 1988, specifically Rule V, Section 14 and Rule 11, Section 2 thereof, provides that
impeachment shall be initiated when a verified complaint for impeachment is filed by any Member of
the House of Representatives or by any citizen upon a resolution of endorsement by any Member
thereof, or when a verified complaint or resolution of impeachment is filed by at least one-third (1/3) of
all the Members of the House. This provision was later amended on November 28, 2001: Rule V,
Section 16 of the amendatory Rules states that impeachment proceedings under any of the three
methods above-stated are deemed initiated on the day that the Committee on Justice finds that the
verified complaint and/or resolution against such official is sufficient in substance or on the date the
House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or

resolution is not sufficient in substance. The adoption of the 2001 Rules, at least insofar as initiation of
impeachment proceedings is concerned, unduly expanded the power of the House by restricting the
constitutional time-bar only to complaints that have been "approved" by the House Committee on
Justice. As stated above, the one-year bar is a limitation set by the Constitution which Congress cannot
overstep. Indeed, the Records of the Constitutional Commission clearly show that, as defined in Article
XI, Section 3 (5), impeachment proceedings begin not on the floor of the House but with the filing of
the complaint by any member of the House of any citizen upon a resolution of endorsement by any
Member thereof. This is the plain sense in which the word "Initiate" must be understood, i.e., to begin or
commence the action.
3.ID.; ID.; ID.; HOW COMPLAINT FOR IMPEACHMENT IS "FILED"; CASE AT BAR.
Moreover, the second impeachment complaint was filed by only two complainants, namely
Representatives Gilberto G. Teodoro, Jr. and Felix William B. Fuentebella. The rest of the members of
the House whose names appear on the attachments thereto merely signed endorsements to the
Complaint. Article XI, Section 3 (3) of the Constitution is explicit: In case the verified complaint or
resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed. (Emphasis
provided.) The mere endorsement of the members of the House, albeit embodied in a verified resolution,
did not suffice for it did not constitute filing of the impeachment complaint, as this term is plainly
understood. In order that the verified complaint may be said to have been filed by at least 1/3 of the
Members, all of them must be named as complainants therein. All of them must sign the main
complaint. This was not done in the case of the assailed second impeachment complaint against the
Chief Justice. The complaint was not filed by at least one-third of the Members of the House, and
therefore did not constitute the Article of Impeachment. I am constrained to disagree with the majority
decision to discard the above issue for being unnecessary for the determination of the instant cases. On
the contrary, the foregoing defect in the complaint is a vital issue in the determination of whether or not
the House should transmit the complaint to the Senate, and if it does, whether the Senate should
entertain it. The Constitution is clear that the complaint for impeachment shall constitute the Articles of
Impeachment, without need of referral to the Committee on Justice, when the complaint is filed by at
least one-third of all the Members of the House. Being the exception to the general procedure outlined
in the Constitution, its formal requisites must be strictly construed.
4.ID.; ID.; ID.; SIGNING OF IMPEACHMENT COMPLAINT DONE WITHOUT DUE PROCESS IN
CASE AT BAR. The impeachment complaint suffers from yet another serious flaw. As one of the
amici curiae, former Senate President Jovito Salonga, pointed out, the signing of the impeachment
complaint by the purported 1/3 of the Congressmen was done without due process. The Chief Justice,
against whom the complaint was brought, was not served notice of the proceedings against him. No rule
is better established under the due process clause of the constitution, than that which requires notice and
opportunity to be heard before any person can be lawfully deprived of his rights. Indeed, when the
Constitution says that no person shall be deprived of life, liberty or property without due process of law,
it means that every person shall be afforded the essential element of notice in any proceeding. Any act
committed in violation of due process may be declared null and void.

5.ID.; ID.; ID.; JUDICIAL SELF-RESTRAINT SHOULD BE EXERCISED IN IMPEACHMENT

PROCEEDINGS. Notwithstanding the constitutional and procedural defects in the impeachment
complaint, I dissent from the majority when it decided to resolve the issues at this premature stage. I
submit that the process of impeachment should first be allowed to run its course. The power of this
Court as the final arbiter of all justiciable questions should come into play only when the procedure as
outlined in the Constitution has been exhausted. The complaint should be referred back to the House
Committee on Justice, where its constitutionality may be threshed out. Thereafter, if the Committee so

63

decides, the complaint will have to be deliberated by the House on plenary session, preparatory to its
possible transmittal to the Senate. The questions on the sufficiency of the complaint in form may again
be brought to the Senate by way of proper motion, and the Senate may deny the motion or dismiss the
complaint depending on the merits of the grounds raised. After the Senate shall have acted in due
course, its disposition of the case may be elevated to this Court pursuant to its judicial power of review. .
. The Court should recognize the extent and practical limitations of its judicial prerogatives, and identify
those areas where it should carefully tread instead of rush in and act accordingly. Considering that
power of impeachment was intended to be the legislature's lone check on the judiciary, exercising our
power of judicial review over impeachment would place the final reviewing authority with respect to
impeachments in the hands of the same body that the impeachment process is meant to regulate. In fact,
judicial involvement in impeachment proceedings, even if only for purposes of judicial review is
counter-intuitive because it eviscerates the improper constitutional check to the judiciary. A becoming
sense of propriety and justice dictates that judicial self-restraint should be exercised; that the
impeachment power should remain at all times and under all circumstances with the legislature, where
the Constitution has placed it. The common-law principle of judicial restraint serves the public interest
by allowing the political processes to operate without undue interference.
DECISION
CARPIO MORALES, J p:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly
irreconcilable it may appear to be, over the determination by the independent branches of government of
the nature, scope and extent of their respective constitutional powers where the Constitution itself
provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics
of the relationship among these co-equal branches. This Court is confronted with one such today
involving the legislature and the judiciary which has drawn legal luminaries to chart antipodal courses
and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy subject of the
instant petitions whether the filing of the second impeachment complaint against Chief Justice
Hilario G. Davide, Jr. with the House of Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political question has resulted in a political
crisis. Perhaps even more truth to the view that it was brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues
which this controversy spawns that this Court unequivocally pronounces, at the first instance, that the
feared resort to extra-constitutional methods of resolving it is neither necessary nor legally permissible.
Both its resolution and protection of the public interest lie in adherence to, not departure from, the
Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the
essential truth that the inviolate doctrine of separation of powers among the legislative, executive or
judicial branches of government by no means prescribes for absolute autonomy in the discharge by each
of that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by
the Constitution to temper the official acts of each of these three branches must be given effect without
destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they are to
insure that governmental power is wielded only for the good of the people, mandate a relationship of
interdependence and coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is
in the greater interest and well-being of the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. All other public officers and employees may be removed from
office as provided by law, but not by impeachment. cEDIAa
SECTION 3.(1)The House of Representatives shall have the exclusive power to initiate all cases of
impeachment.
(2)A verified complaint for impeachment may be filed by any Member of the House of Representatives
or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in
the Order of Business within ten session days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten session days
from receipt thereof.
(3)A vote of at least one-third of all the Members of the House shall be necessary either to affirm a
favorable resolution with the Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate
shall forthwith proceed.
(5)No impeachment proceedings shall be initiated against the same official more than once within a
period of one year.
(6)The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for
that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on
trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the Members of the Senate.
(7)Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted shall
nevertheless be liable and subject to prosecution, trial, and punishment according to law.

64

(8)The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this
section. (Emphasis and italics supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House
of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House
Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules 1
approved by the 11th Congress. The relevant distinctions between these two Congresses' House
Impeachment Rules are shown in the following tabulation:

affirm the finding of the said

Committee that the verified complaint
and/or resolution, as the case may
be, is not sufficient in substance.

11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE IIRULE V
INITIATING IMPEACHMENTBAR AGAINST INITIATION
OF IMPEACHMENT

In cases where a verified complaint or a

resolution of impeachment is filed or
endorsed, as the case may be, by at least onethird (1/3) of the Members of the House,
impeachment proceedings are deemed
initiated at the time of the filing of such

PROCEEDINGS AGAINST
THE SAME OFFICIAL
verified complaint or resolution of
impeachment with the Secretary General.
Section 2. Mode of InitiatingSection 16. Impeachment Proceedings
Impeachment. ImpeachmentDeemed Initiated. In cases where a

RULE V

shall be initiated only by a verifiedMember of the House files a verified

BAR AGAINST IMPEACHMENT

complaint for impeachment filed bycomplaint of impeachment or a citizen

any Member of the House offiles a verified complaint that is endorsed
Representatives or by any citizen uponby a Member of the House through a
a resolution of endorsement by anyresolution of endorsement against an
Member thereof or by a verifiedimpeachable officer, impeachment
complaint or resolution of impeachmentproceedings against such official are
filed by at least one-third (1/3) of alldeemed initiated on the day the
the Members of the House.Committee on Justice finds that the
verified complaint and/or resolution
against such official, as the case may
be, is sufficient in substance, or on the

Section 14. Scope of Bar. NoSection 17. Bar Against Initiation Of

impeachment proceedings shall beImpeachment Proceedings. Within a
initiated against the same official moreperiod of one (1) year from the date
than once within the period of oneimpeachment proceedings are deemed
(1) year.initiated as provided in Section 16 hereof,
no impeachment proceedings, as such,
can be initiated against the same official.
(Italics in the original; emphasis and
italics supplied)
On July 22, 2002, the House of Representatives adopted a Resolution, 2 sponsored by Representative
Felix William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in

date the House votes to overturn or

65

aid of legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme
Court of the Judiciary Development Fund (JDF)." 3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint 4 (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices 5 of
this Court for "culpable violation of the Constitution, betrayal of the public trust and other high crimes."
6 The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen
Piang Dilangalen, 7 and was referred to the House Committee on Justice on August 5, 2003 8 in
accordance with Section 3(2) of Article XI of the Constitution which reads: HSTCcD
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall
be included in the Order of Business within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty session days from such referral, together with
the corresponding resolution. The resolution shall be calendared for consideration by the House within
ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was
"sufficient in form," 9 but voted to dismiss the same on October 22, 2003 for being insufficient in
substance. 10 To date, the Committee Report to this effect has not yet been sent to the House in plenary
in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23,
2003, a day after the House Committee on Justice voted to dismiss it, the second impeachment
complaint 11 was filed with the Secretary General of the House 12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District, Camarines Sur)
against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the legislative inquiry
initiated by above-mentioned House Resolution. This second impeachment complaint was accompanied
by a "Resolution of Endorsement/Impeachment" signed by at least one-third (1/3) of all the Members of
the House of Representatives. 13
Thus arose the instant petitions against the House of Representatives, et al., most of which petitions
contend that the filing of the second impeachment complaint is unconstitutional as it violates the
provision of Section 5 of Article XI of the Constitution that "[n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of
the Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional
impeachment, that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim of the capricious and arbitrary changes in
the Rules of Procedure in Impeachment Proceedings introduced by the 12th Congress," 14 posits that
his right to bring an impeachment complaint against then Ombudsman Aniano Desierto had been
violated due to the capricious and arbitrary changes in the House Impeachment Rules adopted and
approved on November 28, 2001 by the House of Representatives and prays that (1) Rule V, Sections 16
and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2) this Court issue a
writ of mandamus directing respondents House of Representatives et al. to comply with Article IX,
Section 3 (2), (3) and (5) of the Constitution, to return the second impeachment complaint and/or strike
it off the records of the House of Representatives, and to promulgate rules which are consistent with the
Constitution; and (3) this Court permanently enjoin respondent House of Representatives from
proceeding with the second impeachment complaint.

issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any
Articles of Impeachment against the Chief Justice with the Senate; and for the issuance of a writ
"perpetually" prohibiting respondents Senate and Senate President Franklin Drilon from accepting any
Articles of Impeachment against the Chief Justice or, in the event that the Senate has accepted the same,
from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers,
lawyers and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition
involves public interest as it involves the use of public funds necessary to conduct the impeachment trial
on the second impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress
from conducting further proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has
locus standi to bring petitions of this nature in the cases of Chavez v. PCGG 15 and Chavez v. PEAAmari Coastal Bay Development Corporation, 16 prays in his petition for Injunction that the second
impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et al., as taxpayers and members of the legal
profession, pray in their petition for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles of
Impeachment to the Senate. ESCTaA
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M.
Gonzalez, alleging that, as members of the House of Representatives, they have a legal interest in
ensuring that only constitutional impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act proceeding therefrom be
declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers money and that they have an obligation
to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition
for Certiorari and Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution
endorsing the second impeachment complaint as well as all issuances emanating therefrom be declared
null and void; and (2) this Court enjoin the Senate and the Senate President from taking cognizance of,
hearing, trying and deciding the second impeachment complaint, and issue a writ of prohibition
commanding the Senate, its prosecutors and agents to desist from conducting any proceedings or to act
on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers,
and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both
allege in their petition, which does not state what its nature is, that the filing of the second impeachment
complaint involves paramount public interest and pray that Sections 16 and 17 of the House
Impeachment Rules and the second impeachment complaint/Articles of Impeachment be declared null
and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine
Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr.,
as a taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent
Injunction to enjoin the House of Representatives from proceeding with the second impeachment
complaint.

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et al., as citizens and taxpayers, alleging that the
issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the

66

In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the
Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and
Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of Representatives be permanently
enjoined from proceeding with the second impeachment complaint. CTAIHc
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et al., in their petition for
Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v.
Factoran 17 which was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a
writ prohibiting respondents House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this Court declare as unconstitutional the
second impeachment complaint and the acts of respondent House of Representatives in interfering with
the fiscal matters of the Judiciary.

In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in
his petition for Prohibition are of national and transcendental significance and that as an official of the
Philippine Judicial Academy, he has a direct and substantial interest in the unhampered operation of the
Supreme Court and its officials in discharging their duties in accordance with the Constitution, prays for
the issuance of a writ prohibiting the House of Representatives from transmitting the Articles of
Impeachment to the Senate and the Senate from receiving the same or giving the impeachment
complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition
that respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint,
were "absolutely without any legal power to do so, as they acted without jurisdiction as far as the
Articles of Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as
professors of law they have an abiding interest in the subject matter of their petition for Certiorari and
Prohibition as it pertains to a constitutional issue "which they are trying to inculcate in the minds of
their students," pray that the House of Representatives be enjoined from endorsing and the Senate from
trying the Articles of Impeachment and that the second impeachment complaint be declared null and
void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the Judicial
Development Fund (JDF) was spent in accordance with law and that the House of Representatives does
not have exclusive jurisdiction in the examination and audit thereof, prays in his petition "To Declare
Complaint Null and Void for Lack of Cause of Action and Jurisdiction" that the second impeachment
complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of
the second impeachment complaint involve matters of transcendental importance, prays in its petition
for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising
therefrom be declared null and void; (2) respondent House of Representatives be prohibited from
transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be prohibited from
accepting the Articles of Impeachment and from conducting any proceedings thereon.

In G.R. No. 160405, petitioners Democrit C. Barcenas, et al., as citizens and taxpayers, pray in their
petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of
endorsement and impeachment by the respondent House of Representatives be declared null and void
and (2) respondents Senate and Senate President Franklin Drilon be prohibited from accepting any
Articles of Impeachment against the Chief Justice or, in the event that they have accepted the same, that
they be prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen
which were filed before this Court, 18 prayed for the issuance of a Temporary Restraining Order and/or
preliminary injunction to prevent the House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint to the Senate. Petition bearing docket
number G.R. No. 160261 likewise prayed for the declaration of the November 28, 2001 House
Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October
28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged
that House Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief
Justice of the JDF) infringes on the constitutional doctrine of separation of powers and is a direct
violation of the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was put
forth that the second impeachment complaint be formally transmitted to the Senate, but it was not
carried because the House of Representatives adjourned for lack of quorum, 19 and as reflected above,
to date, the Articles of Impeachment have yet to be forwarded to the Senate. TEHDIA
Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary
injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse
themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003,
resolved to (a) consolidate the petitions; (b) require respondent House of Representatives and the
Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d)
appointed distinguished legal experts as amici curiae. 20 In addition, this Court called on petitioners and
respondents to maintain the status quo, enjoining all the parties and others acting for and in their behalf
to refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De
Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a Manifestation
asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of government under the Constitution,
from the performance of its constitutionally mandated duty to initiate impeachment cases. On even date,
Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex Abudante Cautela)
21 and Comment, praying that "the consolidated petitions be dismissed for lack of jurisdiction of the
Court over the issues affecting the impeachment proceedings and that the sole power, authority and
jurisdiction of the Senate as the impeachment court to try and decide impeachment cases, including the
one where the Chief Justice is the respondent, be recognized and upheld pursuant to the provisions of
Article XI of the Constitution." 22

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Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them
with the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30
p.m. of November 3, 2003; and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a
Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no
basis in law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was
presented before it since (1) its constitutional duty to constitute itself as an impeachment court
commences only upon its receipt of the Articles of Impeachment, which it had not, and (2) the principal
issues raised by the petitions pertain exclusively to the proceedings in the House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261,
160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this
Court on October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a
"constitutional deadlock" and praying for the dismissal of all the petitions as the matter in question is
not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No.
160262 a "Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in
Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.
filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in
G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys
Macalintal and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners,
intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the
principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what
issues and at what time; and whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a)locus standi of petitioners;
b)ripeness (prematurity; mootness);
c)political question/justiciability;
d)House's "exclusive" power to initiate all cases of impeachment;
e)Senate's "sole" power to try and decide all cases of impeachment; aTADCE
f)constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of the
Constitution; and

In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions
as well as the myriad arguments and opinions presented for and against the grant of the reliefs prayed
for, this Court has sifted and determined them to be as follows: (1) the threshold and novel issue of
whether or not the power of judicial review extends to those arising from impeachment proceedings; (2)
whether or not the essential pre-requisites for the exercise of the power of judicial review have been
fulfilled; and (3) the substantive issues yet remaining. These matters shall now be discussed in seriatim.

Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine
the validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in Section 1,
Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in
the definitive 1936 case of Angara v. Electoral Commission 23 after the effectivity of the 1935
Constitution whose provisions, unlike the present Constitution, did not contain the present provision in
Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel discoursed:
. . . In times of social disquietude or political excitement, the great landmarks of the Constitution are apt
to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the
only constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof .
As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any
living constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its historical origin
and development there, has been set at rest by popular acquiescence for a period of more than one and a
half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from
section 2 of article VIII of our Constitution. IAETDc

g)judicial restraint (Italics in the original)

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The Constitution is a definition of the powers of government. Who is to determine the nature, scope and
extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as
the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead
to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and legislative
departments of the government. 24 (Italics in the original; emphasis and italics supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of
powers" of the different branches of government and "to direct the course of government along
constitutional channels" is inherent in all courts 25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual controversies involving rights which are legally
demandable and enforceable." 26

As indicated in Angara v. Electoral Commission, 31 judicial review is indeed an integral component of

the delicate system of checks and balances which, together with the corollary principle of separation of
powers, forms the bedrock of our republican form of government and insures that its vast powers are
utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does
not follow from the fact that the three powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government. . . . And the judiciary in turn, with the Supreme Court as the
final arbiter, effectively checks the other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of the Constitution. 32 (Emphasis
and italics supplied) THaAEC
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, ". . . judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of powers
among the three great departments of government through the definition and maintenance of the
boundaries of authority and control between them." 33 To him, "[j]udicial review is the chief, indeed the
only, medium of participation or instrument of intervention of the judiciary in that balancing
operation." 34

Thus, even in the United States where the power of judicial review is not explicitly conferred upon the
courts by its Constitution, such power has "been set at rest by popular acquiescence for a period of more
than one and a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison 27 that
the power of judicial review was first articulated by Chief Justice Marshall, to wit:

To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch
or instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution
engraves, for the first time into its history, into block letter law the so-called "expanded certiorari
jurisdiction" of this Court, the nature of and rationale for which are mirrored in the following excerpt
from the sponsorship speech of its proponent, former Chief Justice Constitutional Commissioner
Roberto Concepcion:

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the
land, the constitution itself is first mentioned; and not the laws of the United States generally, but those
only which shall be made in pursuance of the constitution, have that rank.

xxx xxx xxx

The first section starts with a sentence copied from former Constitutions. It says:

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the
principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is
void; and that courts, as well as other departments, are bound by that instrument. 28 (Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the
power of judicial review was exercised by our courts to invalidate constitutionally infirm acts. 29 And
as pointed out by noted political law professor and former Supreme Court Justice Vicente V. Mendoza,
30 the executive and legislative branches of our government in fact effectively acknowledged this power
of judicial review in Article 7 of the Civil Code, to wit:
Article 7.Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the
latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary
to the laws or the Constitution. (Emphasis supplied)

The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As
a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed
regime was marred considerably by the circumstance that in a number of cases against the government,
which then had no legal defense at all, the solicitor general set up the defense of political questions and

69

got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus,
that is, the authority of courts to order the release of political detainees, and other matters related to the
operation and effect of martial law failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it."
The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. . . .

As it did in Nitafan v. Commissioner on Internal Revenue 40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
. . . The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may
also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers. 41 (Emphasis and italics supplied)

xxx xxx xxx

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade
the duty to settle matters of this nature, by claiming that such matters constitute a political question. 35
(Italics in the original; emphasis and italics supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to
the Constitution itself which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land
Tenure Administration, 36 this Court, speaking through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's document, it being essential for the rule of law
to obtain that it should ever be present in the people's consciousness, its language as much as possible
should be understood in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus these are the cases where the
need for construction is reduced to a minimum. 37 (Emphasis and italics supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be
interpreted in accordance with the intent of its framers. And so did this Court apply this principle in
Civil Liberties Union v. Executive Secretary 38 in this wise: SHTaID
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the purpose
sought to be accomplished thereby, in order to construe the whole as to make the words consonant to
that reason and calculated to effect that purpose. 39 (Emphasis and italics supplied)

Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in
Chiongbian v. De Leon, 42 this Court, through Chief Justice Manuel Moran declared:
. . . [T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect others.
When they adopted subsection 2, they permitted, if not willed, that said provision should function to the
full extent of its substance and its terms, not by itself alone, but in conjunction with all other provisions
of that great document. 43 (Emphasis and italics supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary, 44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the Constitution is to
be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes
of the instrument. Sections bearing on a particular subject should be considered and interpreted together
as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction
which will render every word operative, rather than one which may make the words idle and nugatory.
45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In
still the same case of Civil Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may
be had only when other guides fail as said proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the constitutional convention "are of value as
showing the views of the individual members, and as indicating the reasons for their votes, but they give
us no light as to the views of the large majority who did not talk, much less of the mass of our fellow
citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face." The proper interpretation therefore depends
more on how it was understood by the people adopting it than in the framers's understanding thereof . 46
(Emphasis and italics supplied)
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application
of the power of judicial review that respondents Speaker De Venecia, et al. and intervenor Senator
Pimentel raise the novel argument that the Constitution has excluded impeachment proceedings from the
coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia, et al. that impeachment is a political
action which cannot assume a judicial character. Hence, any question, issue or incident arising at any
stage of the impeachment proceeding is beyond the reach of judicial review. 47

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For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment
cases 48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the
Senates power to determine constitutional questions relative to impeachment proceedings. 49
In furthering their arguments on the proposition that impeachment proceedings are outside the scope of
judicial review, respondents Speaker De Venecia, et al. and intervenor Senator Pimentel rely heavily on
American authorities, principally the majority opinion in the case of Nixon v. United States. 50 Thus,
they contend that the exercise of judicial review over impeachment proceedings is inappropriate since it
runs counter to the framers' decision to allocate to different fora the powers to try impeachments and to
try crimes; it disturbs the system of checks and balances, under which impeachment is the only
legislative check on the judiciary; and it would create a lack of finality and difficulty in fashioning
relief. 51 Respondents likewise point to deliberations on the US Constitution to show the intent to
isolate judicial power of review in cases of impeachment.

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and
American authorities cannot be credited to support the proposition that the Senate's "sole power to try
and decide impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a
textually demonstrable constitutional commitment of all issues pertaining to impeachment to the
legislature, to the total exclusion of the power of judicial review to check and restrain any grave abuse
of the impeachment process. Nor can it reasonably support the interpretation that it necessarily confers
upon the Senate the inherently judicial power to determine constitutional questions incident to
impeachment proceedings. TEcAHI
Said American jurisprudence and authorities, much less the American Constitution, are of dubious
application for these are no longer controlling within our jurisdiction and have only limited persuasive
merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC
, 52 "[i]n resolving constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence
some of which are hardly applicable because they have been dictated by different constitutional settings
and needs." 53 Indeed, although the Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. In the colorful words of Father Bernas,
"[w]e have cut the umbilical cord." DHacTC

judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness
and pride." 56
But did not the people also express their will when they instituted the above-mentioned safeguards in
the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to
the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of
Baker v. Carr, 57 "judicially discoverable standards" for determining the validity of the exercise of such
discretion, through the power of judicial review.
The cases of Romulo v. Yniguez 58 and Alejandrino v. Quezon, 59 cited by respondents in support of
the argument that the impeachment power is beyond the scope of judicial review, are not in point. These
cases concern the denial of petitions for writs of mandamus to compel the legislature to perform nonministerial acts, and do not concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr., 60 this Court ruled that it is well within the
power and jurisdiction of the Court to inquire whether the Senate or its officials committed a violation
of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In
Taada v. Angara, 61 in seeking to nullify an act of the Philippine Senate on the ground that it
contravened the Constitution, it held that the petition raises a justiciable controversy and that when an
action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. In Bondoc v. Pineda, 62 this Court
declared null and void a resolution of the House of Representatives withdrawing the nomination, and
rescinding the election, of a congressman as a member of the House Electoral Tribunal for being
violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra, 63 it held that the resolution
of whether the House representation in the Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18, Article VI of the Constitution is subject
to judicial review. In Daza v. Singson, 64 it held that the act of the House of Representatives in
removing the petitioner from the Commission on Appointments is subject to judicial review. In Taada
v. Cuenco, 65 it held that although under the Constitution, the legislative power is vested exclusively in
Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of
Congress. In Angara v. Electoral Commission, 66 it ruled that confirmation by the National Assembly of
the election of any member, irrespective of whether his election is contested, is not essential before such
member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

The major difference between the judicial power of the Philippine Supreme Court and that of the U.S.
Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme
Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as
expressly provided for in the Constitution, is not just a power but also a duty, and it was given an
expanded definition to include the power to correct any grave abuse of discretion on the part of any
government branch or instrumentality.

Finally, there exists no constitutional basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to
be interpreted as a whole and "one section is not to be allowed to defeat another." 67 Both are integral
components of the calibrated system of independence and interdependence that insures that no branch of
government act beyond the powers assigned to it by the Constitution. ATHCDa

There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with
respect to the power of the House of Representatives over impeachment proceedings. While the U.S.
Constitution bestows sole power of impeachment to the House of Representatives without limitation, 54
our Constitution, though vesting in the House of Representatives the exclusive power to initiate
impeachment cases, 55 provides for several limitations to the exercise of such power as embodied in
Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required
vote to impeach, and the one year bar on the impeachment of one and the same official.

Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all
powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest possible opportunity; and (4) the issue of constitutionality must be the very
lis mota of the case.

Respondents are also of the view that judicial review of impeachments undermines their finality and
may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to
exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the

. . . Even then, this power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional question raised
or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal

71

questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner,
the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because the judiciary in the determination
of actual cases and controversies must reflect the wisdom and justice of the people as expressed through
their representatives in the executive and legislative departments of the government. 68 (Italics in the
original)
Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions. 69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have
standing since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae
former Justice Minister and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in
the past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving
paramount public interest 70 and transcendental importance, 71 and that procedural matters are
subordinate to the need to determine whether or not the other branches of the government have kept
themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them. 72 Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the
same opinion, citing transcendental importance and the well-entrenched rule exception that, when the
real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the
Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts
will grant petitioners standing.

There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for
the former is a concept of civil procedure 73 while the latter has constitutional underpinnings. 74 In
view of the arguments set forth regarding standing, it behooves the Court to reiterate the ruling in
Kilosbayan, Inc.v. Morato 75 to clarify what is meant by locus standi and to distinguish it from real
party-in-interest.
The difference between the rule on standing and real party in interest has been noted by authorities thus:
"It is important to note . . . that standing because of its constitutional and public policy underpinnings, is
very different from questions relating to whether a particular plaintiff is the real party in interest or has
capacity to sue. Although all three requirements are directed towards ensuring that only certain parties
can maintain an action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought not by parties
who have been personally injured by the operation of a law or by official action taken, but by concerned
citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is
whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." DTAcIa

xxx xxx xxx

On the other hand, the question as to "real party in interest" is whether he is "the party who would be
benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'" 76 (Citations
omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of
the House of Representatives, none of the petitioners asserts a violation of the personal rights of the
Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as
taxpayers; members of Congress; citizens, individually or in a class suit; and members of the bar and of
the legal profession which were supposedly violated by the alleged unconstitutional acts of the
House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act
complained of. 77 In fine, when the proceeding involves the assertion of a public right, 78 the mere fact
that he is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally
disbursed, or that public money is being deflected to any improper purpose, or that there is a wastage of
public funds through the enforcement of an invalid or unconstitutional law. 79 Before he can invoke the
power of judicial review, however, he must specifically prove that he has sufficient interest in
preventing the illegal expenditure of money raised by taxation and that he would sustain a direct injury
as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely
a general interest common to all members of the public. 80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained. 81 This Court opted to grant standing to most of the petitioners, given their allegation that
any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he claims
infringes his prerogatives as a legislator. 82 Indeed, a member of the House of Representatives has
standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his
office. 83
While an associationhas legal personality to represent its members, 84 especially when it is composed of
substantial taxpayers and the outcome will affect their vital interests, 85 the mere invocation by the
Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule
of law and nothing more, although undoubtedly true, does not suffice to clothe it with standing. Its
interest is too general. It is shared by other groups and the whole citizenry. However, a reading of the
petition shows that it has advanced constitutional issues which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents. 86 It, therefore, behooves this Court to
relax the rules on standing and to resolve the issues presented by it.

72

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must
be sufficiently numerous to fully protect the interests of all concerned 87 to enable the court to deal
properly with all interests involved in the suit, 88 for a judgment in a class suit, whether favorable or
unfavorable to the class, is, under the res judicata principle, binding on all members of the class whether
or not they were before the court. 89 Where it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous petitions before this Court, G.R.
No. 160365 as a class suit ought to fail. Since petitioners additionally allege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following determinants formulated
by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the
lack of any other party with a more direct and specific interest in raising the questions being raised. 90
Applying these determinants, this Court is satisfied that the issues raised herein are indeed of
transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to the people, as when the
issues raised are of paramount importance to the public. 91 Such liberality does not, however, mean that
the requirement that a party should have an interest in the matter is totally eliminated. A party must, at
the very least, still plead the existence of such interest, it not being one of which courts can take judicial
notice. In petitioner Vallejos' case, he failed to allege any interest in the case. He does not thus have
standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an
intervenor to possess a legal interest in the matter in litigation, or in the success of either of the parties,
or an interest against both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof. While intervention is not a
matter of right, it may be permitted by the courts when the applicant shows facts which satisfy the
requirements of the law authorizing intervention. 92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadras case, they seek to join
petitioners Candelaria, et al. in G.R. No. 160262. Since, save for one additional issue, they raise the
same issues and the same standing, and no objection on the part of petitioners Candelaria, et al. has been
interposed, this Court as earlier stated, granted their Motion for Leave of Court to Intervene and
Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. sought to join
petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they
will suffer if this insidious scheme of the minority members of the House of Representatives is
successful," this Court found the requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292,
160295, and 160310 are of transcendental importance, World War II Veterans Legionnaires of the
Philippines, Inc. filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of
whether or not the second impeachment complaint against the Chief Justice is valid and based on any of
the grounds prescribed by the Constitution.

Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and
World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in
litigation the respective motions to intervene were granted.

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of
record and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting
to this Court's jurisdiction as the Senate President does will undermine the independence of the Senate
which will sit as an impeachment court once the Articles of Impeachment are transmitted to it from the
House of Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation,
he being a member of Congress against which the herein petitions are directed. For this reason, and to
fully ventilate all substantial issues relating to the matter at hand, his Motion to Intervene was granted
and he was, as earlier stated, allowed to argue. IEcDCa
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an
interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth
in Dumlao v. COMELEC, 93 to wit:
. . . While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in
their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of
specific constitutional protection against abuses of legislative power," or that there is a misapplication of
such funds by respondent COMELEC, or that public money is being deflected to any improper purpose.
Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of
an invalid or unconstitutional law. 94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will
result in illegal disbursement of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with
standing.
Ripeness and Prematurity
In Tan v. Macapagal, 95 this Court, through Chief Justice Fernando, held that for a case to be considered
ripe for adjudication, "it is a prerequisite that something had by then been accomplished or performed
by either branch before a court may come into the picture." 96 Only then may the courts pass on the
validity of what was done, if and when the matter is challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second impeachment
complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the
12th Congress, the constitutionality of which is questioned. The questioned acts having been carried out,
i.e., the second impeachment complaint had been filed with the House of Representatives and the 2001
Rules have already been already promulgated and enforced, the prerequisite that the alleged
unconstitutional act should be accomplished and performed before suit, as Tan v. Macapagal holds, has
been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus
curiae former Senate President Jovito R. Salonga opines that there may be no urgent need for this Court
to render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He
thus recommends that all remedies in the House and Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court
to take judicial notice of on-going attempts to encourage signatories to the second impeachment
complaint to withdraw their signatures and opines that the House Impeachment Rules provide for an

73

opportunity for members to raise constitutional questions themselves when the Articles of Impeachment
are presented on a motion to transmit to the same to the Senate. The dean maintains that even assuming
that the Articles are transmitted to the Senate, the Chief Justice can raise the issue of their constitutional
infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures
would not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would
such a withdrawal, by itself, obliterate the questioned second impeachment complaint since it would
only place it under the ambit of Sections 3(2) and (3) of Article XI of the Constitution 97 and, therefore,
petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of Congress
before coming to this Court is shown by the fact that, as previously discussed, neither the House of
Representatives nor the Senate is clothed with the power to rule with definitiveness on the issue of
constitutionality, whether concerning impeachment proceedings or otherwise, as said power is
exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the Constitution.
Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Taada v. Cuenco, 98 Chief Justice Roberto Concepcion defined the term
"political question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus Juris Secundum, it refers to "those
questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the Legislature or executive branch
of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure. 99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this
Court vacillated on its stance of taking cognizance of cases which involved political questions. In some
cases, this Court hid behind the cover of the political question doctrine and refused to exercise its power
of judicial review. 100 In other cases, however, despite the seeming political nature of the therein issues
involved, this Court assumed jurisdiction whenever it found constitutionally imposed limits on powers
or functions conferred upon political bodies. 101 Even in the landmark case of Javellana v. Executive
Secretary 102 which raised the issue of whether the 1973 Constitution was ratified, hence, in force, this
Court shunted the political question doctrine and took cognizance thereof. Ratification by the people of
a Constitution is a political question, it being a question decided by the people in their sovereign
capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction
over certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a
Constitutional Commissioner, to clarify this Court's power of judicial review and its application on
issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the
judiciary is the weakest among the three major branches of the service. Since the legislature holds the
purse and the executive the sword, the judiciary has nothing with which to enforce its decisions or
commands except the power of reason and appeal to conscience which, after all, reflects the will of God,
and is the most powerful of all other powers without exception. . . . And so, with the bodys indulgence,
I will proceed to read the provisions drafted by the Committee on the Judiciary.

The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As
a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed
regime was marred considerably by the circumstance that in a number of cases against the government,
which then had no legal defense at all, the solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus,
that is, the authority of courts to order the release of political detainees, and other matters related to the
operation and effect of martial law failed because the government set up the defense of political
question. And the Supreme Court said: "Well, since it is political, we have no authority to pass upon it."
The Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this
situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to
explain. I will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the
Secretary of Justice, if I am not mistaken. Martial law was announced on September 22, although the
proclamation was dated September 21. The obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent newsmen on September 21. So that when
martial law was announced on September 22, the media hardly published anything about it. In fact, the
media could not publish any story not only because our main writers were already incarcerated, but also
because those who succeeded them in their jobs were under mortal threat of being the object of wrath of
the ruling party. The 1971 Constitutional Convention had begun on June 1, 1971 and by September 21
or 22 had not finished the Constitution; it had barely agreed in the fundamentals of the Constitution. I
forgot to say that upon the proclamation of martial law, some delegates to that 1971 Constitutional
Convention, dozens of them, were picked up. One of them was our very own colleague, Commissioner
Calderon. So, the unfinished draft of the Constitution was taken over by representatives of Malacaang.
In 17 days, they finished what the delegates to the 1971 Constitutional Convention had been unable to
accomplish for about 14 months. The draft of the 1973 Constitution was presented to the President
around December 1, 1972, whereupon the President issued a decree calling a plebiscite which
suspended the operation of some provisions in the martial law decree which prohibited discussions,
much less public discussions of certain matters of public concern. The purpose was presumably to allow
a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in
January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the
interregnum, however, the draft of the Constitution was analyzed and criticized with such a telling effect
that Malacaang felt the danger of its approval. So, the President suspended indefinitely the holding of
the plebiscite and announced that he would consult the people in a referendum to be held from January
10 to January 15. But the questions to be submitted in the referendum were not announced until the eve
of its scheduled beginning, under the supposed supervision not of the Commission on Elections, but of
what was then designated as "citizens assemblies or barangays." Thus the barangays came into
existence. The questions to be propounded were released with proposed answers thereto, suggesting that
it was unnecessary to hold a plebiscite because the answers given in the referendum should be regarded

74

as the votes cast in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that
the holding of the referendum be suspended. When the motion was being heard before the Supreme
Court, the Minister of Justice delivered to the Court a proclamation of the President declaring that the
new Constitution was already in force because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I
proceeded to the session room where the case was being heard. I then informed the Court and the parties
the presidential proclamation declaring that the 1973 Constitution had been ratified by the people and is
now in force.

government are generally considered divided into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that
supremacy power to determine whether a given law is valid or not is vested in courts of justice.

A number of other cases were filed to declare the presidential proclamation null and void. The main
defense put up by the government was that the issue was a political question and that the court had no
jurisdiction to entertain the case.

This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade
the duty to settle matters of this nature, by claiming that such matters constitute a political question.

xxx xxx xxx

The government said that in a referendum held from January 10 to January 15, the vast majority ratified
the draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but
none of them had been notified of any referendum in their respective places of residence, much less did
they participate in the alleged referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court
felt that there had been no referendum.

Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature.

I have made these extended remarks to the end that the Commissioners may have an initial food for
thought on the subject of the judiciary. 103 (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified
the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the
Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.

Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum
and a plebiscite. But another group of justices upheld the defense that the issue was a political question.
Whereupon, they dismissed the case. This is not the only major case in which the plea of "political
question" was set up. There have been a number of other cases in the past.

MR. NOLLEDO. And so, is this only an example?

. . . The defense of the political question was rejected because the issue was clearly justiciable.

MR. NOLLEDO. Because of the expression "judicial power"?

xxx xxx xxx

MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question
as to whether the government had authority or had abused its authority to the extent of lacking
jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to
decide.

. . . When your Committee on the Judiciary began to perform its functions, it faced the following
questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving
conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law
but cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was
unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such
are and that she is bound to comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to
enforce them by actual compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which are
legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential
system of government, the Supreme Court has, also another important function. The powers of

MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with
jurisdictional questions. But there is a difference.

xxx xxx xxx

FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according
to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of
jurisdiction . . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political
question doctrine.

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MR. CONCEPCION. No, certainly not.

When this provision was originally drafted, it sought to define what is judicial power. But the
Gentleman will notice it says, "judicial power includes" and the reason being that the definition that we
might make may not cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question
doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond
the pale of judicial power. 104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that
judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere
specter of this creature called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two species of political questions: (1)
"truly political questions" and (2) those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason being that respect for the doctrine of
separation of powers must be maintained. On the other hand, by virtue of Section 1, Article VIII of the
Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has
in fact in a number of cases taken jurisdiction over questions which are not truly political following the
effectivity of the present Constitution.
In Marcos v. Manglapus, 105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the
political departments to decide. 106 . . .
In Bengzon v. Senate Blue Ribbon Committee, 107 through Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with the applicability of the principle in
appropriate cases." 108 (Emphasis and italics supplied)
And in Daza v. Singson, 109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature, we
would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political question. 110 . . . (Emphasis and italics supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and nonjusticiable political questions, however. Identification of these two species of political questions may be

problematic. There has been no clear standard. The American case of Baker v. Carr 111 attempts to
provide some:
. . . Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility
of a courts undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for questioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements by various departments
on one question. 112 (emphasis supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the impossibility of deciding without an
initial policy determination of a kind clearly for non-judicial discretion. These standards are not separate
and distinct concepts but are interrelated to each in that the presence of one strengthens the conclusion
that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review is
radically different from our current concept, for Section 1, Article VIII of the Constitution provides our
courts with far less discretion in determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such limits.
This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I.Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable
offenses under the Constitution.
II.Whether the second impeachment complaint was filed in accordance with Section 3(4), Article XI of
the Constitution.
III.Whether the legislative inquiry by the House Committee on Justice into the Judicial Development
Fund is an unconstitutional infringement of the constitutionally mandated fiscal autonomy of the
judiciary.
IV.Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th Congress
are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution.
V.Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.
The first issue goes into the merits of the second impeachment complaint over which this Court has no
jurisdiction. More importantly, any discussion of this issue would require this Court to make a
determination of what constitutes an impeachable offense. Such a determination is a purely political
question which the Constitution has left to the sound discretion of the legislation. Such an intent is clear
from the deliberations of the Constitutional Commission. 113

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Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of
these, namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission shows that the framers could find no
better way to approximate the boundaries of betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both, without arriving at their clear cut definition or
even a standard therefor. 114 Clearly, the issue calls upon this court to decide a non-justiciable political
question which is beyond the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental
act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections, 115
this Court held:
. . . It is a well-established rule that a court should not pass upon a constitutional question and decide a
law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is
raised, if the record also presents some other ground upon which the court may rest its judgment, that
course will be adopted and the constitutional question will be left for consideration until a case arises in
which a decision upon such question will be unavoidable. 116 [Emphasis and italics supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform, 117 where this Court
invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due
process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional question only if it is
shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus, there
must be an actual case or controversy involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have been opportunely raised by the proper party, and
the resolution of the question is unavoidably necessary to the decision of the case itself . 118 [Emphasis
supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the
very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome of this
controversy could possibly be made to rest. In determining whether one, some or all of the remaining
substantial issues should be passed upon, this Court is guided by the related cannon of adjudication that
"the court should not form a rule of constitutional law broader than is required by the precise facts to
which it is applied." 119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second
impeachment complaint is invalid since it directly resulted from a Resolution 120 calling for a
legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid of
legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the
constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence of
the judiciary. 121
Without going into the merits of petitioners Alfonso, et al.'s claims, it is the studied opinion of this Court
that the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far
removed from the issue of the validity of the second impeachment complaint. Moreover, the resolution
of said issue would, in the Court's opinion, require it to form a rule of constitutional law touching on the
separate and distinct matter of legislative inquiries in general, which would thus be broader than is

required by the facts of these consolidated cases. This opinion is further strengthened by the fact that
said petitioners have raised other grounds in support of their petition which would not be adversely
affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already been
enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Committee, 122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries
in aid of legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute
or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as
provided therein, the investigation must be "in aid of legislation in accordance with its duly published
rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be
respected." It follows then that the rights of persons under the Bill of Rights must be respected,
including the right to due process and the right not be compelled to testify against one's self. 123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the
original petition of petitioners Candelaria, et al., introduce the new argument that since the second
impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix
William Fuentebella, the same does not fall under the provision of Section 3 (4), Article XI of the
Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
They assert that while at least 81 members of the House of Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the requisites for the application of the aforementioned section in that the "verified complaint or resolution of impeachment" was not filed "by at
least one-third of all the Members of the House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to have verified the same merely as a
"Resolution of Endorsement." Intervenors point to the "Verification" of the Resolution of Endorsement
which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B. Fuentebella . . . 124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said
second impeachment complaint to automatically become the Articles of Impeachment and for trial in the
Senate to begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least
one-third of the Members of the House of Representatives. Not having complied with this requirement,
they concede that the second impeachment complaint should have been calendared and referred to the
House Committee on Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall
be included in the Order of Business within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after hearing, and by a majority vote of all its

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Members, shall submit its report to the House within sixty session days from such referral, together with
the corresponding resolution. The resolution shall be calendared for consideration by the House within
ten session days from receipt thereof.

Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4),
Article XI of the Constitution to apply, there should be 76 or more representatives who signed and
verified the second impeachment complaint as complainants, signed and verified the signatories to a
resolution of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of the House of Representatives
as endorsers is not the resolution of impeachment contemplated by the Constitution, such resolution of
endorsement being necessary only from at least one Member whenever a citizen files a verified
impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope
of the constitutional issues to the provisions on impeachment, more compelling considerations militate
against its adoption as the lis mota or crux of the present controversy. Chief among this is the fact that
only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a
ground for invalidating the second impeachment complaint. Thus, to adopt this additional ground as the
basis for deciding the instant consolidated petitions would not only render for naught the efforts of the
original petitioners in G.R. No. 160262, but the efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of the
instant cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the
petition of Candelaria, et al., adopting the latter's arguments and issues as their own. Consequently, they
are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the
very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House
Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment
complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as
an impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court
reiterates that the power of judicial review includes the power of review over justiciable issues in
impeachment proceedings.
On the other hand, respondents Speaker De Venecia et al. argue that "[t]here is a moral compulsion for
the Court to not assume jurisdiction over the impeachment because all the Members thereof are subject
to impeachment." 125 But this argument is very much like saying the Legislature has a moral
compulsion not to pass laws with penalty clauses because Members of the House of Representatives are
subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication
may not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as
there is no other tribunal to which the controversy may be referred." 126 Otherwise, this Court would be
shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed
with authority thus, this Court is duty-bound to take cognizance of the instant petitions. 127 In the

august words of amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn duty which
may not be renounced. To renounce it, even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot inhibit
itself and must rule upon the challenge because no other office has the authority to do so. 128 On the
occasion that this Court had been an interested party to the controversy before it, it has acted upon the
matter "not with officiousness but in the discharge of an unavoidable duty and, as always, with
detachment and fairness." 129 After all, "by [his] appointment to the office, the public has laid on [a
member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon the merits of
their varied contentions. For this reason, they expect [him] to be fearless in [his] pursuit to render
justice, to be unafraid to displease any person, interest or power and to be equipped with a moral fiber
strong enough to resist the temptations lurking in [his] office." 130
The duty to exercise the power of adjudication regardless of interest had already been settled in the case
of Abbas v. Senate Electoral Tribunal. 131 In that case, the petitioners filed with the respondent Senate
Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the
hearing and resolution of SET Case No. 002-87 on the ground that all of them were interested parties to
said case as respondents therein. This would have reduced the Tribunal's membership to only its three
Justices-Members whose disqualification was not sought, leaving them to decide the matter. This Court
held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting in the
Tribunal by any of his other colleagues in the Senate without inviting the same objections to the
substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave the
Tribunal no alternative but to abandon a duty that no other court or body can perform, but which it
cannot lawfully discharge if shorn of the participation of its entire membership of Senators.
To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging
a duty which it alone has the power to perform, the performance of which is in the highest public
interest as evidenced by its being expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not
have been unaware of the possibility of an election contest that would involve all Senators elect, six
of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again
in the wake of the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be
at stake. Yet the Constitution provides no scheme or mode for settling such unusual situations or for the
substitution of Senators designated to the Tribunal whose disqualification may be sought. Litigants in
such situations must simply place their trust and hopes of vindication in the fairness and sense of justice
of the Members of the Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may
inhibit or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member
of the Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case
where he sincerely feels that his personal interests or biases would stand in the way of an objective and
impartial judgment. What we are merely saying is that in the light of the Constitution, the Senate
Electoral Tribunal cannot legally function as such, absent its entire membership of Senators and that no
amendment of its Rules can confer on the three Justices-Members alone the power of valid adjudication
of a senatorial election contest.
More recently in the case of Estrada v. Desierto, 132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing
short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law.

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Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated
by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court,
the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the
court itself. It affects the very heart of judicial independence. The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of Justices. 133 (Italics in the
original; emphasis supplied)

7.When the validity of an act of the Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in Ashwander v. TVA from different
decisions of the United States Supreme Court, can be encapsulated into the following categories:
1.that there be absolute necessity of deciding a case

Besides, there are specific safeguards already laid down by the Court when it exercises its power of
judicial review.

2.that rules of constitutional law shall be formulated only as required by the facts of the case

In Demetria v. Alba, 134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in
Ashwander v. TVA 135 as follows:

3.that judgment may not be sustained on some other ground

1.The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy between individuals. It never was
the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts
an inquiry as to the constitutionality of the legislative act.'

5.that the parties are not in estoppel

2.The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding
it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely
necessary to a decision of the case.'
3.The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts
to which it is to be applied.'
4.The Court will not pass upon a constitutional question although properly presented by the record, if
there is also present some other ground upon which the case may be disposed of. This rule has found
most varied application. Thus, if a case can be decided on either of two grounds, one involving a
constitutional question, the other a question of statutory construction or general law, the Court will
decide only the latter. Appeals from the highest court of a state challenging its decision of a question
under the Federal Constitution are frequently dismissed because the judgment can be sustained on an
independent state ground.

5.The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he
is injured by its operation. Among the many applications of this rule, none is more striking than the
denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a
public official interested only in the performance of his official duty will not be entertained . . . In
Fairchild v. Hughes, the Court affirmed the dismissal of a suit brought by a citizen who sought to have
the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, the challenge of the
federal Maternity Act was not entertained although made by the Commonwealth on behalf of all its
citizens.
6.The Court will not pass upon the constitutionality of a statute at the instance of one who has availed
himself of its benefits.

4.that there be actual injury sustained by the party by reason of the operation of the statute

6.that the Court upholds the presumption of constitutionality.

As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial
review:
1.actual case or controversy calling for the exercise of judicial power
2.the person challenging the act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement
3.the question of constitutionality must be raised at the earliest possible opportunity
4.the issue of constitutionality must be the very lis mota of the case. 136
Respondents Speaker de Venecia, et al. raise another argument for judicial restraint the possibility that
"judicial review of impeachments might also lead to embarrassing conflicts between the Congress and
the [J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in
judicial hearings, and the scenario that it would be confusing and humiliating and risk serious political
instability at home and abroad if the judiciary countermanded the vote of Congress to remove an
impeachable official. 137 Intervenor Soriano echoes this argument by alleging that failure of this Court
to enforce its Resolution against Congress would result in the diminution of its judicial authority and
erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the
possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from
upholding the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties
just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
. . . Frequently, the fight over a controversial legislative or executive act is not regarded as settled until
the Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only
juridical effects but also political consequences. Those political consequences may follow even where
the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary number of votes.

79

Frequently, failure to act explicitly, one way or the other, itself constitutes a decision for the respondent
and validation, or at least quasi-validation, follows." 138

of Father Bernas, who elucidated during the oral arguments of the instant petitions on November 5,
2003 in this wise:

Thus, in Javellana v. Executive Secretary 139 where this Court was split and "in the end there were not
enough votes either to grant the petitions, or to sustain respondent's claims," 140 the pre-existing
constitutional order was disrupted which paved the way for the establishment of the martial law regime.

Briefly then, an impeachment proceeding is not a single act. It is a complexus of acts consisting of a
beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the Senate.
The middle consists of those deliberative moments leading to the formulation of the articles of
impeachment. The beginning or the initiation is the filing of the complaint and its referral to the
Committee on Justice.

Such an argument by respondents and intervenor also presumes that the coordinate branches of the
government would behave in a lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason to believe that any of the branches of
government will behave in a precipitate manner and risk social upheaval, violence, chaos and anarchy
by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People v.
Veneracion, to wit: 141
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the
guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which
they are required by law to exercise the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, [public officers] are guided by the Rule of Law, and ought "to
protect and enforce it without fear or favor," resist encroachments by governments, political parties, or
even the interference of their own personal beliefs. 142
Constitutionality of the Rules of Procedure for Impeachment Proceedings adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of
Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present
Constitution, contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that
it is the House of Representatives, as a collective body, which has the exclusive power to initiate all
cases of impeachment; that initiate could not possibly mean "to file" because filing can, as Section 3 (2),
Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1) by a verified
complaint for impeachment by any member of the House of Representatives; or (2) by any citizen upon
a resolution of endorsement by any member; or (3) by at least 1/3 of all the members of the House.
Respondent House of Representatives concludes that the one year bar prohibiting the initiation of
impeachment proceedings against the same officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate Justices had not been initiated as the House
of Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory
construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado,
who eventually became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to
file," as proffered and explained by Constitutional Commissioner Maambong during the Constitutional
Commission proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral
arguments on the instant petitions held on November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the complaint, dissipates any doubt that indeed the
word "initiate" as it twice appears in Article XI (3) and (5) of the Constitution means to file the
complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence,
or set going. As Webster's Third New International Dictionary of the English Language concisely puts it,
it means "to perform or facilitate the first action," which jibes with Justice Regalado's position, and that

Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and
Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in favor of
impeachment or when the House reverses a contrary vote of the Committee. Note that the Rule does not
say "impeachment proceedings" are initiated but rather are "deemed initiated. The language is
recognition that initiation happened earlier, but by legal fiction there is an attempt to postpone it to a
time after actual initiation. (Emphasis and italics supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law.
Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think, these would need
some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on impeachment
proceedings, copies of which have been furnished the Members of this body. This is borne out of my
experience as a member of the Committee on Justice, Human Rights and Good Government which took
charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information
of the Committee, the resolution covers several steps in the impeachment proceedings starting with
initiation, action of the Speaker committee action, calendaring of report, voting on the report, transmittal
referral to the Senate, trial and judgment by the Senate.

xxx xxx xxx

MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the
amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we
do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have
pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually
done on the floor is that the committee resolution containing the Articles of Impeachment is the one
approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the
initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment
proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the
recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who
approved the resolution. It is not the body which initiates it. It only approves or disapproves the
resolution. So, on that score, probably the Committee on Style could help in rearranging these words
because we have to be very technical about this. I have been bringing with me The Rules of the House
of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of
Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided.
Nevertheless, I just want to indicate this on record.

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xxx xxx xxx

MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My
reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of
the Rules of the House of Representatives of the United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on page 2,
Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH THE
ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so
that the whole section will now read: "A vote of at least one-third of all the Members of the House shall
be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee or
to override its contrary resolution. The vote of each Member shall be recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the
United States is concerned, really starts from the filing of the verified complaint and every resolution to
impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of
Impeachment" are mentioned on line 25 in the case of the direct filing of a verified complaint of onethird of all the Members of the House. I will mention again, Madam President, that my amendment will
not vary the substance in any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam President. 143 (Italics in the
original; emphasis and italics supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee
on the Accountability of Public Officers. 144
It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his
amicus curiae brief, Commissioner Maambong explained that "the obvious reason in deleting the phrase
"to initiate impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to
settle and make it understood once and for all that the initiation of impeachment proceedings starts with
the filing of the complaint, and the vote of one-third of the House in a resolution of impeachment does
not initiate the impeachment proceedings which was already initiated by the filing of a verified
complaint under Section 3, paragraph (2), Article XI of the Constitution." 145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was
also a member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI,
Section 3(5) means to file, both adding, however, that the filing must be accompanied by an action to set
the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing
in the constitutional provision on impeachment, viz:
Section 3 (1).The House of Representatives shall have the exclusive power to initiate all cases of
impeachment.
xxx xxx xxx
(5)No impeachment proceedings shall be initiated against the same official more than once within a
period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."

Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the
first sentence is "impeachment case." The object in the second sentence is "impeachment proceeding."
Following the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the
term "proceedings." An impeachment case is the legal controversy that must be decided by the Senate.
Above-quoted first provision provides that the House, by a vote of one-third of all its members, can
bring a case to the Senate. It is in that sense that the House has "exclusive power" to initiate all cases of
impeachment. No other body can do it. However, before a decision is made to initiate a case in the
Senate, a "proceeding" must be followed to arrive at a conclusion. A proceeding must be "initiated." To
initiate, which comes from the Latin word initium, means to begin. On the other hand, proceeding is a
progressive noun. It has a beginning, a middle, and an end. It takes place not in the Senate but in the
House and consists of several steps: (1) there is the filing of a verified complaint either by a Member of
the House of Representatives or by a private citizen endorsed by a Member of the House of the
Representatives; (2) there is the processing of this complaint by the proper Committee which may either
reject the complaint or uphold it; (3) whether the resolution of the Committee rejects or upholds the
complaint, the resolution must be forwarded to the House for further processing; and (4) there is the
processing of the same complaint by the House of Representatives which either affirms a favorable
resolution of the Committee or overrides a contrary resolution by a vote of one-third of all the members.
If at least one third of all the Members upholds the complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at this
point that an impeachable public official is successfully impeached. That is, he or she is successfully
charged with an impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of
another proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House
deliberates on the resolution passed on to it by the Committee, because something prior to that has
already been done. The action of the House is already a further step in the proceeding, not its initiation
or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and
referred to the Committee on Justice for action. This is the initiating step which triggers the series of
steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal
reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be
necessary . . . to initiate impeachment proceedings," this was met by a proposal to delete the line on the
ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a
complaint does. 146 Thus the line was deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated
against the same official more than once within a period of one year," it means that no second verified
complaint may be accepted and referred to the Committee on Justice for action. By his explanation, this
interpretation is founded on the common understanding of the meaning of "to initiate" which means to
begin. He reminds that the Constitution is ratified by the people, both ordinary and sophisticated, as they
understand it; and that ordinary people read ordinary meaning into ordinary words and not abstruse
meaning, they ratify words as they understand it and not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment proceedings
because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all
cases of impeachment," this is a misreading of said provision and is contrary to the principle of
reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action of said complaint.

81

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the
members of the House of Representatives with the Secretary General of the House, the meaning of
Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are
deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint
and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding
of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or
(3) by the filing or endorsement before the Secretary-General of the House of Representatives of a
verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These
rules clearly contravene Section 3 (5) of Article XI since the rules give the term "initiate" a meaning
different meaning from filing and referral.
In his amicus curiaebrief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous
construction as an aid in the interpretation of Sec. 3 (5) of Article XI, citing Vera v. Avelino 147 wherein
this Court stated that "their personal opinions (referring to Justices who were delegates to the
Constitution Convention) on the matter at issue expressed during this Court's our deliberations stand on
a different footing from the properly recorded utterances of debates and proceedings." Further citing
said case, he states that this Court likened the former members of the Constitutional Convention to
actors who are so absorbed in their emotional roles that intelligent spectators may know more about the
real meaning because of the latter's balanced perspectives and disinterestedness. 148
Justice Gutierrez's statements have no application in the present petitions. There are at present only two
members of this Court who participated in the 1986 Constitutional Commission Chief Justice Davide
and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious
reasons. Moreover, this Court has not simply relied on the personal opinions now given by members of
the Constitutional Commission, but has examined the records of the deliberations and proceedings
thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and
unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its
argument is premised on the assumption that Congress has absolute power to promulgate its rules. This
assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on
impeachment is limited by the phrase "to effectively carry out the purpose of this section." Hence, these
rules cannot contravene the very purpose of the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific limitations on
its power to make rules, viz:
Section 3.(1). . .
(2)A verified complaint for impeachment may be filed by any Member of the House of Representatives
or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in
the Order of Business within ten session days, and referred to the proper Committee within three session
days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its

report to the House within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten session days
from receipt thereof.
(3)A vote of at least one-third of all the Members of the House shall be necessary to either affirm a
favorable resolution with the Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4)In case the verified complaint or resolution of impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate
shall forthwith proceed.
(5)No impeachment proceedings shall be initiated against the same official more than once within a
period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged
Congress had absolute rule making power, then it would by necessary implication have the power to
alter or amend the meaning of the Constitution without need of referendum.
In Osmea v. Pendatun, 149 this Court held that it is within the province of either House of Congress to
interpret its rules and that it was the best judge of what constituted "disorderly behavior" of its members.
However, in Paceta v. Secretary of the Commission on Appointments, 150 Justice (later Chief Justice)
Enrique Fernando, speaking for this Court and quoting Justice Brandeis in United States v. Smith, 151
declared that where the construction to be given to a rule affects persons other than members of the
Legislature, the question becomes judicial in nature. In Arroyo v. De Venecia, 152 quoting United States
v. Ballin, Joseph & Co., 153 Justice Vicente Mendoza, speaking for this Court, held that while the
Constitution empowers each house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there should be a reasonable
relation between the mode or method of proceeding established by the rule and the result which is
sought to be attained. It is only within these limitations that all matters of method are open to the
determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in
his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine
setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I
agree that we will trivialize the principle of separation of power if we assume jurisdiction over the case
at bar. Even in the United States, the principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on cases involving breach of rules of procedure
by legislators.
Rightly, the ponencia uses the 1891 case of US v. Ballin (144 US 1) as a window to view the issues
before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power
of the judiciary to review congressional rules. It held:
"xxx xxx xxx
"The Constitution, in the same section, provides, that each house may determine the rules of its
proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this
as one of its rules:
Rule XV

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3.On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient
to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in
the journal, and reported to the Speaker with the names of the members voting, and be counted and
announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of
this rule, and not what methods the Speaker may of his own motion resort to for determining the
presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the
journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any
matters for judicial consideration. With the courts the question is only one of power. The Constitution
empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should be a reasonable relation between the mode or
method of proceedings established by the rule and the result which is sought to be attained. But within
these limitations all matters of method are open to the determination of the House, and it is no
impeachment of the rule to say that some other way would be better, more accurate, or even more just. It
is no objection to the validity of a rule that a different one has been prescribed and in force for a length
of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power,
always subject to be exercised by the House, and within the limitations suggested, absolute and beyond
the challenge of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e.,
whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test:
(1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3)
its method had a reasonable relationship with the result sought to be attained. By examining Rule XV,
the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of
separation of powers. 154
xxx xxx xxx
In the Philippine setting, there is a more compelling reason for courts to categorically reject the political
question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our
Constitution was intentionally cobbled to empower courts ". . . to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and was not granted to our courts in the 1935
and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state
constitution. The CONCOM granted this enormous power to our courts in view of our experience under
martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of
the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the
CONCOM expanded and sharpened the checking powers of the judiciary vis- -vis the Executive and
the Legislative departments of government. 155

xxx xxx xxx

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can
decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this
Court to strike down any act of a branch or instrumentality of government or any of its officials done
with grave abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court against the other branches of government
despite their more democratic character, the President and the legislators being elected by the people.
156

xxx xxx xxx

The provision defining judicial power as including the 'duty of the courts of justice . . . to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government' constitutes the capstone of the efforts of the
Constitutional Commission to upgrade the powers of this court vis- -vis the other branches of
government. This provision was dictated by our experience under martial law which taught us that a
stronger and more independent judiciary is needed to abort abuses in government. . . .
xxx xxx xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with
grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This
transformation, dictated by our distinct experience as nation, is not merely evolutionary but
revolutionary. Under the 1935 and the 1973 Constitutions, this Court approached constitutional
violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in
stress this Court is mandated to approach constitutional violations not by finding out what it should
not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that
petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new constitutional
provision as the case at bar once more calls us to define the parameters of our power to review
violations of the rules of the House. We will not be true to our trust as the last bulwark against
government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it
is this exceeding timidity to unsheathe the judicial sword that has increasingly emboldened other
branches of government to denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view
of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly
Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign
jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and
not the experience of foreigners. 157 (Italics in the original; emphasis and italics supplied)
Thus, the ruling in Osmea v. Pendatun is not applicable to the instant petitions. Here, the third parties
alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US 158 as basis for arguing that this
Court may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules.
As already observed, the U.S. Federal Constitution simply provides that "the House of Representatives
shall have the sole power of impeachment." It adds nothing more. It gives no clue whatsoever as to how
this "sole power" is to be exercised. No limitation whatsoever is given. Thus, the US Supreme Court
concluded that there was a textually demonstrable constitutional commitment of a constitutional power
to the House of Representatives. This reasoning does not hold with regard to impeachment power of the
Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several
provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that
impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General
of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of
the members of the House thus clearly contravene Section 3 (5) of Article XI as they give the term
"initiate" a meaning different from "filing."

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Validity of the Second Impeachment Complaint

Having concluded that the initiation takes place by the act of filing of the impeachment complaint and
referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5)
of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a one year period following Article XI,
Section 3 (5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada against
Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003
and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint
filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice
on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment
proceedings against the same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that takes the
center stage of our individual and collective consciousness as a people with our characteristic flair for
human drama, conflict or tragedy. Of course this is not to demean the seriousness of the controversy
over the Davide impeachment. For many of us, the past two weeks have proven to be an exasperating,
mentally and emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to
articulate what they respectively believe to be the correct position or view on the issues involved.
Passions had ran high as demonstrators, whether for or against the impeachment of the Chief Justice,
took to the streets armed with their familiar slogans and chants to air their voice on the matter. Various
sectors of society from the business, retired military, to the academe and denominations of faith
offered suggestions for a return to a state of normalcy in the official relations of the governmental
branches affected to obviate any perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been constituted, this
Court was specifically asked, told, urged and argued to take no action of any kind and form with respect
to the prosecution by the House of Representatives of the impeachment complaint against the subject
respondent public official. When the present petitions were knocking so to speak at the doorsteps of this
Court, the same clamor for non-interference was made through what are now the arguments of "lack of
jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting the Court from any move
that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality
of initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has
been already explained, the Court found the existence in full of all the requisite conditions for its
exercise of its constitutionally vested power and duty of judicial review over an issue whose resolution
precisely called for the construction or interpretation of a provision of the fundamental law of the land.
What lies in here is an issue of a genuine constitutional material which only this Court can properly and
competently address and adjudicate in accordance with the clear-cut allocation of powers under our
system of government. Face-to-face thus with a matter or problem that squarely falls under the Court's
jurisdiction, no other course of action can be had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has
effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the
main issue of whether the impeachment proceedings initiated against the Chief Justice transgressed the
constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions.

Because it is not at all the business of this Court to assert judicial dominance over the other two great
branches of the government. Rather, the raison d'etre of the judiciary is to complement the discharge by
the executive and legislative of their own powers to bring about ultimately the beneficent effects of
having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment
proceedings against the Chief Justice, the members of this Court have actually closed ranks to protect
one of their brethren. That the members' interests in ruling on said issue is as much at stake as is that of
the Chief Justice. Nothing could be farther from the truth.

The institution that is the Supreme Court together with all other courts has long held and been entrusted
with the judicial power to resolve conflicting legal rights regardless of the personalities involved in the
suits or actions. This Court has dispensed justice over the course of time, unaffected by whomsoever
stood to benefit or suffer therefrom, unafraid by whatever imputations or speculations could be made to
it, so long as it rendered judgment according to the law and the facts. Why can it not now be trusted to
wield judicial power in these petitions just because it is the highest ranking magistrate who is involved
when it is an incontrovertible fact that the fundamental issue is not him but the validity of a government
branch's official act as tested by the limits set by the Constitution? Of course, there are rules on the
inhibition of any member of the judiciary from taking part in a case in specified instances. But to
disqualify this entire institution now from the suits at bar is to regard the Supreme Court as likely
incapable of impartiality when one of its members is a party to a case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which
recognizes equality of all men before the law as essential to the law's moral authority and that of its
agents to secure respect for and obedience to its commands. Perhaps, there is no other government
branch or instrumentality that is most zealous in protecting that principle of legal equality other than the
Supreme Court which has discerned its real meaning and ramifications through its application to
numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is
not above the law and neither is any other member of this Court. But just because he is the Chief Justice
does not imply that he gets to have less in law than anybody else. The law is solicitous of every
individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by this
impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other
than the Constitution in search for a solution to what many feared would ripen to a crisis in government.
But though it is indeed immensely a blessing for this Court to have found answers in our bedrock of
legal principles, it is equally important that it went through this crucible of a democratic process, if only
to discover that it can resolve differences without the use of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings
which were approved by the House of Representatives on November 28, 2001 are unconstitutional.
Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which
was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office
of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph
5, section 3 of Article XI of the Constitution.
SO ORDERED.

84

||| (Francisco, Jr. v. House of Representatives, G.R. No. 160261, 160262, 160263, 160277, 160292,
160295, 160310, 160318, 160342, 160343, 160360, 160362, 160370, 160376, 160392, 160397, 160403,
160405, [November 10, 2003], 460 PHIL 830-1126)

the case, whether correct on general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court.
3. ID.; ID.; "LAW OF THE CASE" DIFFERENTIATED FROM RES JUDICATA. As this Court
explained in another case, "The law of the case, as applied to a former decision of an appellate court,
merely expresses the practice of the courts in refusing to reopen what has been decided. It differs from
res judicata in that the conclusiveness of the first judgment is not dependent upon its finality. The first
judgment is generally, if not universally, not final. It relates entirely to questions of law, and is confined
in its operation to subsequent proceedings in the same case." (Municipality of Daet v. Court of Appeals,
93 SCRA 503, 521 [1979])
4. ID.; ID.; "LAW OF THE CASE"; DOCTRINE WILL NOT APPLY WHERE THE PARTIES ARE
THE SAME BUT THE CASES ARE DIFFERENT. It follows that since the present case is not the
same one litigated by the parties before in G.R. No. 113375, the ruling there cannot in any sense be
regarded as "the law of this case." The parties are the same but the cases are not.
5. ID.; ID.; RULE ON CONCLUSIVENESS OF JUDGMENT OR PRECLUSION OF ISSUES;
DOCTRINE CONSTRUED. Nor is inquiry into petitioners' right to maintain this suit foreclosed by
the related doctrine of "conclusiveness of judgment." According to the doctrine, an issue actually and
directly passed upon and determined in a former suit cannot again be drawn in question in any future
action between the same parties involving a different cause of action. (Pealosa v. Tuason, 22 Phil. 303,
313 [1912]; Heirs of Roxas v. Galido, 108 Phil. 582 [1960])

EN BANC
[G.R. No. 118910. July 17, 1995.]
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME
CAMBA , EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO,
FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, REFAEL G. FERNANDO,
RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB,
SEN. WIGBERTO TAADA, REP. JOKER P. ARROYO, petitioners, vs. MANUEL L.
MORATO, in his capacity as Chairman of the Philippine Charity Sweepstakes Office, and the
PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents.
Jovito R. Salonga, Fernando Santiago and Emilio C . Capulong, Jr., for the petitioners.

6. ID.; ID.; ID.; DOCTRINE DOES NOT APPLY TO ISSUES OF LAW. It has been held that the
rule on conclusiveness of judgment or preclusion of issues or collateral estoppel does not apply to issues
of law, at least when substantially unrelated claims are involved. (Montana v. United States, 440 U.S.
147, 162, 59 L. Ed. 2d 210, 222 [1979]; BATOR MELTZER, MISHKIN AND SHAPIRO, THE
FEDERAL COURTS AND THE FEDERAL SYSTEM 1058, n. 2 [3rd Ed., 1988])
7. ID.; ID.; ID.; ID. This exception to the General Rule of Issue Preclusion is authoritatively
formulated in Restatement of the Law 2d, on Judgments, as follows: Sec. 28. Although an issue is
actually litigated and determined by a valid and final judgment, and the determination is essential to the
judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the
following circumstances: . . . (2) The issue is one of law and (a) the two actions involve claims that are
substantially unrelated, or (b) a new determination is warranted in order to take account of an
intervening change in the applicable legal context or otherwise to avoid inequitable administration of the
laws.

Renato L. Cayetano, Eleazar Reyes for private respondent PGMC.

The Solicitor General for public respondent.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; "LAW OF THE CASE"; DOCTRINE APPLICABLE ONLY WHEN
A CASE IS BEFORE A COURT A SECOND TIME AFTER A RULING BY AN APPELLATE COURT.
Petitioners argue that inquiry into their right to bring this suit is barred by the doctrine of "law of the
case." We do not think this doctrine is applicable considering the fact that while this case is a sequel to
G.R. No. 113375, it is not its continuation. The doctrine applies only when a case is before a court a
second time after a ruling by an appellate court.
2. ID.; ID.; ID.; DEFINITION. "Law of the case" has been defined as the opinion delivered on a
former appeal. More specifically, it means that whatever is once irrevocably established as the
controlling legal rule of decision between the same parties in the same case continues to be the law of

8. ID.; ID.; ID.; ID.; QUESTION WHETHER PETITIONERS HAVE STANDING TO QUESTION
THE EQUIPMENT LEASE AGREEMENT (ELA), A LEGAL QUESTION. The question whether
petitioners have standing to question the Equipment Lease Agreement or ELA is a legal question. As
will presently be shown, the ELA, which petitioners seek to declare invalid in this proceeding, is
essentially different from the 1993 Contract of Lease entered into by the PCSO with the PGMC. Hence
the determination in the prior case (G.R. No. 113375) that petitioners had standing to challenge the
validity of the 1993 Contract of Lease of the parties does not preclude determination of their standing in
the present suit.
9. ID.; ID.; RULE ON STANDING AND REAL PARTY-IN-INTEREST, DIFFERENTIATED. The
difference between the rule on standing and real party-in-interest has been noted by authorities thus: "It
is important to note . . . that standing because of its constitutional and public policy underpinnings, is
very different from questions relating to whether a particular plaintiff is the real party-in-interest or has
capacity to sue. Although all three requirements are directed towards ensuring that only certain parties
can maintain an action, standing restrictions require a partial consideration of the merits, as well as

85

broader policy concerns relating to the proper role of the judiciary in certain areas. (FRIEDENTHAL,
KANE AND MILLER, CIVIL PROCEDURE 328 [1985]) Standing is a special concern in
constitutional law because in some cases suits are brought not by parties who have been personally
injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or
voters who actually sue in the public interest. Hence the question in standing is whether such parties
have "alleged such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." (Baker v. Carr, 369 U.S. 7 L. Ed. 2d 633 [1962]) On
the other hand, the question as to "real party-in-interest" is whether he is "the party who would be
benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'" (Salonga v. Warner
Barnes & Co., Ltd., 88 Phil 125, 131 [1951])
10. ID.; ID.; REAL PARTIES-IN-INTEREST IN ANNULMENT OF CONTRACTS ARE PARTIES TO
THE AGREEMENT. In actions for the annulment of contracts, such as this action, the real parties are
those who are parties to the agreement or are bound either principally or subsidiarily or are prejudiced in
their rights with respect to one of the contracting parties and can show the detriment which would
positively result to them from the contract even though they did not intervene in it (Ibaez v. Hongkong
& Shanghai Bank, 22 Phil. 572 [1912]), or who claim a right to take part in a public bidding but have
been illegally excluded from it. (See De la Lara Co., Inc. v. Secretary of Public Works and
Communications, G.R. No. L-13460, Nov. 28, [1958])
11. ID.; ID.. ID.; PARTIES WITH PRESENT SUBSTANTIAL INTEREST; "PRESENT
SUBSTANTIAL INTEREST," CONSTRUED. These are parties with "a present substantial interest,
as distinguished from a mere expectancy or future, contingent, subordinate, or consequential interest.
The phrase 'present substantial interest' more concretely is meant such interest of a party in the subject
matter of action as will entitle him, under the substantive law, to recover if the evidence is sufficient, or
that he has the legal title to demand and the defendant will be protected in a payment to or recovery by
him." (1 MORAN, COMMENTS ON THE RULES OF COURT 154-155 [1979])
12. ID.; ID.; ID.; PARTIES WITHOUT PRESENT SUBSTANTIAL INTEREST IN THE EQUIPMENT
LEASE AGREEMENT, NOT ENTITLED TO BRING SUIT FOR ANNULMENT; CASE AT BAR.
But petitioners do not have such present substantial interest in the ELA as would entitle them to bring
this suit. Denying to them the right to intervene will not leave without remedy any perceived illegality in
the execution of government contracts. Questions as to the nature or validity of public contracts or the
necessity for a public bidding before they may be made can be raised in an appropriate case before the
Commission on Audit or before the Ombudsman. The Constitution requires that the Ombudsman and his
deputies, "as protectors of the people shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision, agency or instrumentality
thereof including government-owned or controlled corporations." (Art. XI, 12) In addition, the Solicitor
General is authorized to bring an action for quo warranto if it should be thought that a government
corporation, like the PCSO, has offended against its corporate charter or misused its franchise. (Rule 66,
Sec. 2 [a] [d] For reasons set for, we hold that petitioner have no cause against respondents and therefore
their petition should be dismissed.
13. CIVIL LAW; OBLIGATIONS AND CONTRACTS; EQUIPMENT LEASE AGREEMENT, A
LEASE CONTRACT. The features of the old Contract of Lease have been removed in the present
ELA. While the rent is still expressed in terms of percentage (it is now 4.3% of the gross receipts from
the sale of tickets) in the ELA, the PGMC is now guaranteed a minimum rent of P35,000.00 a year per
terminal in commercial operation. (Par. 2) The PGMC is thus assured of payment of the rental. The
PCSO now bears all losses because the operation of the system is completely in its hands. This feature
of the new contract negates any doubt that it is anything but a lease agreement. In this case the rental has
to be expressed in terms of percentage of the revenue of the PCSO because rentals are treated in the
charter of the agency (R.A. No. 1169, Sec. 6[C]) as "operating expenses" and the allotment for

"operating expenses" is a percentage of the net receipts. We hold that the ELA is a lease contract and
that it contains none of the features of the former contract which were considered "badges of a joint
venture agreement" To further find fault with the new contract would be to cavil and expose the
opposition to the contract to be actually an opposition to lottery under any and all circumstances. But
"[t]he morality of gambling is not a justiciable issue. Gambling is not illegal per se. . . It is left to
Congress to deal with the activity as it sees fit." (Magtajas v. Pryce Properties Corp. Inc., 234 SCRA
255, 268 [1994]. Cf. Lim v. Pacquing, G.R. No. 115044, Jan. 27, 1995) In the case of lottery, there is no
dispute that, to enable the Philippine Charity Sweepstakes Office to raise funds for charity, Congress
authorized the Philippine Charity Sweepstakes Office (PCSO) to hold or conduct lotteries under certain
conditions.

14. REMEDIAL LAW; COURTS; WILL GENERALLY NOT INTERFERE WITH MATTERS OF
BUSINESS JUDGMENT. Petitioners reply that to obviate the possibility that the rental would not
exceed 15% of the net receipts what the respondents should have done was not to agree on a minimum
fixed rental of P35,000.00 per terminal in commercial operation. This is a matter of business judgment
which, in the absence of a clear and convincing showing that it was made in grave abuse of discretion of
the PCSO, this Court is not inclined to review.
15. ID.; EVIDENCE; PRESUMPTIONS; GOVERNMENT IS PRESUMED TO HAVE ACTED IN
GOOD FAITH IN TAKING CONTRACTS; CASE AT BAR. By virtue of the provision on
upgrading of equipment, petitioners claim, the parties can change their entire agreement and thereby, by
"clever means and devices," enable the PGMC to "actually operate, manage, control and supervise the
conduct and holding of the on-line lottery system," considering that as found in the first decision, "the
PCSO had neither funds of its own nor the expertise to operate and manage an on-line lottery." The
claim is speculative. It is just as possible to speculate that after sometime operating the lottery system
the PCSO will be able to accumulate enough capital to enable it to buy its own equipment and gain
expertise. As for expertise, after three months of operation of the on-line lottery, there appears to be no
complaint that the PCSO is relying on others, outside its own personnel, to run the system. In any case
as in the construction of statutes, the presumption is that in making contracts the government has acted
in good faith. The doctrine that the possibility of abuse is not a reason for denying power to the
government holds true also in cases involving the validity of contracts made by it.
16. CIVIL LAW; OBLIGATIONS AND CONTRACTS; LEASE CONTRACTS, DEFINED. A
contract of lease, as this is defined in Civil law, may call for some form of collaboration or association
between the parties since lease is a "consensual, bilateral, onerous and commutative contract by which
one person binds himself to grant temporarily the use of a thing or the rendering of some service to
another who undertakes to pay some rent, compensation or price." (5 PADILLA, CIVIL CODE 611
[6TH Ed 1974]).
17. ADMINISTRATIVE LAW; PHILIPPINE CHARITY SWEEPSTAKES OFFICE (RA 1169); NOT
PROHIBITED FROM HOLDING OR CONDUCTING LOTTERY "IN COLLABORATION,
ASSOCIATION OR JOINT VENTURE" WITH ANOTHER PARTY; PROHIBITION REFERS TO
INVESTMENT IN BUSINESS ENGAGED IN LOTTERIES AND SIMILAR ACTIVITIES. The
charter of the PCSO does not absolutely prohibit it from holding or conducting lottery "in collaboration,
association or joint venture" with another party. What the PCSO is prohibited from doing is to invest in
a business engaged in sweepstakes races, lotteries and similar activities, and it is prohibited from doing
so whether in "collaboration, association or joint venture" with others or "by itself." The reason for this
is that these are competing activities and the PCSO should not invest in the business of a competitor.
When parsed, it will be seen that 1 grants the PCSO authority to do any of the following: (1) to hold or
conduct charity sweepstakes races, lotteries and similar activities; and/or (2) to invest whether "by itself

86

or in collaboration, association or joint venture with any person, association, company entity" in any
"health and welfare-related investments, programs, projects and activities which may be profit oriented,"
except "the activities mentioned in the preceding paragraph (A)," i.e., sweepstakes races, lotteries and
similar activities. The PCSO is prohibited from investing activities mentioned in the preceding
paragraph (A)" because, as already stated, these are competing activities. The subject matter of 1(B) is
the authority of the PCSO to invest in certain projects for profit in order to enable it to expand its health
medical assistance and charitable grants. The exception in the law refers to investment in businesses
engaged in sweepstakes races, lotteries and similar activities. The limitation applies not only when the
investment is undertaken by the PCSO "in collaboration, association or joint venture" but also when
made by the PCSO alone, "by itself." The prohibition can not apply to the holding of a lottery by the
PCSO itself. Otherwise, what it is authorize to do in par. (A) would be negated by what is prohibited by
par. (B). To harmonize pars. (A) and (B), the latter must be read as referring to the authority of the
PCSO to invest in the business of others. Put in another way, the prohibition in 1(B) is not so much
against the PCSO entering into any collaboration, association or joint venture with others as against the
PCSO investing in the business of another franchise holder which would directly compete with PCSO's
own charity sweepstakes races, lotteries or similar activities. The prohibition applies whether the PCSO
makes the investment alone or with others.
18. ID.; ID.; MAY ENTER INTO EQUIPMENT LEASE CONTRACT WITHOUT PUBLIC BIDDING.
Finally the question is whether the ELA is subject to public bidding. In justifying the award of the
contract to the PGMC without public bidding, the PCSO invokes E.O. No. 301. E.O. No. 301, Sec. 1
applies only to contracts for the purchase of supplies, materials and equipment. It does not refer to
contracts of lease of equipment like the ELA. The provisions on lease are found in Secs. 6 and 7 but
they refer to the lease of privately-owned buildings or spaces for government use or of governmentowned buildings or spaces for private use, and these provisions do not require public bidding. It is thus
difficult to see how E.O. No. 301 can be applied to the ELA when the only feature of the ELA that may
be thought of as close to a contract of purchase and sale is the option to buy given to the PCSO. An
option to buy is not of course a contract of purchase and sale.

lease agreement for the operation by PCSO of the lottery would defeat the intent of the law to raise,
from such lotto operations, funds for charitable institutions and government civic projects, because an
outright purchase by PCSO of the lottery equipment appears next to impossible or at least not feasible
costwise considering the capital equipment involved. In enacting the law creating the PCSO, Congress,
to be sure, did not intend to make it impossible for PCSO to attain its given purposes. A rigid
interpretation of the restriction on "association, collaboration, and joint venture" will result in such
impossibility. Neither can petitioners' argument that certain provisions in the ELA will ensure PGMC's
continued participation and interest in the lottery operations provide enough grounds for granting the
petition in this case. Such arguments are based on speculations devoid of any material or concrete
factual basis. In sum, the ELA constitutes, in my view, a straight lease agreement of equipment between
PCSO and PGMC. Such an agreement is, as far as PCSO's charter is concerned, validly and lawfully
entered into.
5. REMEDIAL LAW; SUPREME COURT; SHOULD NOT PREEMPT JUDGMENT OF
COMMISSION ON AUDIT (COA) ON MATTERS WITHIN ITS JURISDICTION; ISSUE ON
NECESSITY OF PUBLIC BIDDING IN ELA, WITHIN COA'S JURISDICTION. On the allegation
of lack of public bidding on the ELA, the Commission on Audit (COA) has yet to resolve a case where
the issue of the validity of the ELA due to lack of public bidding has been squarely raised. This matter
surfaced during the hearing of the present case. Needless to say, the Court should not preempt the
determination and judgment of the COA on matters which are within its primary jurisdiction under the
Constitution.
6. POLITICAL LAW; ISSUE AS TO WHETHER ELA IS GROSSLY DISADVANTAGEOUS TO THE
GOVERNMENT, A POLITICAL QUESTION. As to whether or not the ELA is grossly
disadvantageous to the government, it should be stressed that the matter involves, basically, a policydetermination by the executive branch which this Court should not ordinarily reverse or substitute with
its own judgment, in keeping with the time honored doctrine of separation of powers.
FELICIANO, J., dissenting opinion:

PADILLA, J., concurring opinion:

1. REMEDIAL LAW; SUPREME COURT; DUTY TO APPLY THE LAW IRRESPECTIVE OF
PERSONAL CONVICTION OF MEMBER. It is the duty of the Supreme Court to apply the laws
enacted by Congress and approved by the President, (unless they are violative of the Constitution) even
if such laws run counter to a Member's personal conviction that gambling should be totally prohibited
by law.
2. CIVIL LAW; OBLIGATIONS AND CONTRACTS; LEASE, DEFINED. A lease is a contract
whereby one of the parties binds himself to give to another the enjoyment or use of a thing for a price
certain and for a period which may be definite or indefinite (Article 1643, Civil Code).
3. ID.; ID.; ID.; LESSOR OF EQUIPMENT, FREE TO DEMAND AMOUNT OF RENTALS. It
would appear from the above legal provision that the ELA is truly a straight contract of lease. That the
parties to the ELA have stipulated on flexible rentals does not render it less of a lease contract and more
of a joint venture. Surely, the PGMC as owner of the leased equipment is free to demand the amount of
rentals it deems commensurate for the use thereof and, as long as PCSO agrees to the amount of such
rentals, as justifying an adequate net return to it, then the contract is valid and binding between the
parties thereto. This is the essence of freedom to enter into contracts.
4. ADMINISTRATIVE LAW; PHILIPPINE CHARITY SWEEPSTAKES OFFICE; EQUIPMENT
LEASE AGREEMENT (ELA), A STRAIGHT LEASE EQUIPMENT. Petitioners have not cited any
law which prevents such stipulations to be included in contracts of lease or which changes the nature of
such agreement from a lease to some other juridical relation. In fact, such stipulations are common in
leases of real estate for commercial purposes. A ruling that would prevent PCSO from entering into such

1. ADMINISTRATIVE LAW; PHILIPPINE CHARITY SWEEPSTAKES OFFICE; PROHIBITION

AGAINST HOLDING OR CONDUCTING LOTTERY IN COLLABORATION, ASSOCIATION OR
JOINT VENTURE WITH ANOTHER PARTY; VIEW EXPRESSED BY THE INDIVIDUAL
LEGISLATOR WHO CRAFTED QUESTIONED PROVISION SHOULD AT LEAST BE ENTITLED
TO A STRONG PRESUMPTION OF CORRECTNESS. I turn first to the novel argument made in
the majority opinion that the charter of PCSO does not "prohibit [] it from holding or conducting
lottery in collaboration, association or joint venture with another party." That opinion argues that "what
[PCSO] is prohibited from doing is to invest in a business engaged in sweepstakes races, lotteries and
similar activities" which are "competing activities and the PCSO should not invest in the business of a
competitor." In so doing, my learned brother Mendoza, J . purports to controvert and overturn the
reading that the majority of this Court, through Mr. Justice Davide, Jr., in the first Kilosbayan case gave
to the relevant provisions of the PCSO charter. It so happens that the critical language in the relevant
PCSO charter provision that is, the "except" clause in Section 1 (B) of the PCSO charter as amended
by B.P. Blg. 42 was crafted by the then Assemblyman Hilario G. Davide, Jr. during the deliberations
in the Interim Batasan Pambansa on the bill that became B.P. Blg. 42. It is impliedly contended by the
majority that the intent of an individual legislator should not be regarded as conclusive as to the
"collect" interpretation of the provision of a statute. This is true enough, as a general proposition, for it
is the intent of the legislative body as manifested in the language used by the legislature that must be
examined and applied by this Court. However, it seems to me that the view expressed by an individual
legislator who eventually comes to sit in this Court as to the meaning to be given to words crafted by
himself should, at the very least, be regarded as entitled to a strong presumption of correctness. Put a
little differently, I respectfully submit that in a situation such as that presented in this case, a strong

87

presumption arises that the interpretation given by Mr. Justice Davide, Jr. and approved and adopted by
the majority of the Court in the first Kilosbayan case faithfully reflected the intent of the legislative
body as a whole.
2. ID.; ID.; ID.; INTENT CLEARLY DISCERNIBLE IN WORDS USED BY LEGISLATURE.
Fortunately, in the present case, it is not necessary to take the word of Mr. Justice Davide, Jr. as to what
the intent of the legislative body was in respect of Section 1 (B) of the present PCSO charter. For that
intent is clearly discernible in the very words used by the legislative body itself. Examining the actual
text of Section 1 (B), it will be noted that what PCSO has been authorized to do is not simply "to invest
whether by itself or in collaboration, association or joint venture ' in any health and welfare-related
investments, programs, projects and activities which may be profit-oriented . . ." Rather, the PCSO has
been authorized "to engage in health and welfare-related investments, programs, projects and activities
which may be profit-oriented.
3. ID.; ID.; ID.; CONSTRUED. The "except" clause in Section 1 (B), is not designed as a noncompetition provision, nor as a measure intended to prevent PCSO from putting its money in enterprises
competing with PCSO. What the law seeks thereby to avoid, rather, is the PCSO sharing or franchising
out its exclusive authority to hold and conduct sweepstakes races, lotteries and similar activities by
collaborating or associating or entering into joint ventures with other persons or entities not
government-owned and legislatively chartered like the PCSO is. The prohibition against PCSO sharing
its authority with others is designed, among other things, to prevent diversion to other uses of revenue
streams that should go solely to the charitable and welfare-related purposes specified in PCSO's charter.
It will be seen that without the "except" clause inserted at the initiative of former Assemblyman Davide,
Jr., Section 1(B) would be so comprehensively worded as to permit PCSO precisely to share its
exclusive right to hold and conduct sweepstakes races, lotteries and the like. It is this "except" clause
which prevents such sharing or lending or farming out the PCSO "franchise" "by itself or in
collaboration, association or joint venture with any person, association, company or entity, whether
domestic or foreign, except for the activities mentioned in the preceding paragraph (A) . . ." This
"except" clause thus operates, as it were, as a renvoi clause which refers back to Section 1 (A) and in
this manner avoids the necessity of simultaneously amending the text of Section 1 (A). The textual
location, in other words, of the "except" clause offers no support for the new-found and entirely original
interpretation offered in the majority opinion.
4. ID.; ID.; EQUIPMENT LEASE AGREEMENT (ELA); PUBLIC BIDDING, A NECESSARY
PREREQUISITE; CASE AT BAR. I consider next the question of whether the "Equipment Lease
Agreement" (ELA) is subject to public bidding. PCSO refers to Executive Order No. 301 dated 26 July
1987 in seeking to justify the award of the ELA to the PGMC without public bidding. In accepting the
contentions of PCSO, the majority opinion relies basically on two (2) propositions. The first of these is
that Executive Order No. 301, Section 1 refers to contracts of purchase and sale [only]. The second
proposition offered is that the use of the term "supplies" "cannot be limited so as to exclude 'materials'
and 'equipment' without defeating the purpose for which these exceptions are made." The first
proposition finds no basis in the actual language used in the operative paragraph of Section 1 of
Executive Order No. 301 setting out the general rule ". . . no contract for public services or for
furnishing supplies, materials and equipment to the government or any of its branches, agencies or
instrumentalities shall be renewed or entered into without public bidding, except under any of the
following situations: . . . It is worthy of special note that the above opening paragraph does not even use
the words "purchase and sale" or "buy and sell"; the actual term used is "furnishing . . . equipment to the
government." The term "furnishing" can scarcely be limited to sales to the government but must instead
be held to embraced any contract which provides the government with either title to or use of
equipment. A contrary view can only result in serious emasculation of Executive Order No. 301. It is
common place knowledge that equipment leases (especially "financial leases" involving expensive
capital equipment) are often substitutes for or equivalents of purchase and sale contracts, given the
multifarious credit and tax constraints operating in the market place. Thus the above first proposition

fails to take into account actual commercial practice already reflected in our present commercial and tax
law. The second proposition similarly requires one who must interpret and apply the provisions of
Section 1 of Executive Order No. 310 to disregard the actual language used in that Order. For Executive
Order No. 301 uses done (3) distinguishable terms "supplies," "materials" and "equipment." These terms
are not always used simultaneously in Executive Order No. 301. In some places, only "supplies" is used;
in other places, only "materials" is employed; and in still other places, the term "equipment" is used
alongside with, but separately from, both of the other two (2) terms. To say that "supplies," "materials"
and "equipment" are merely synonymous or fungible would appear too casual a treatment of the actual
language of Executive Order No. 301. The fundamental difficulty with the above two (2) propositions is
this: that public bidding is precisely the standard and best way of ensuring that a contract by which the
government seeks to provide itself with supplies or materials or equipment is in fact the most
advantageous to government. It is true enough that public bidding may be inconvenient and time
consuming; but it is still the only method of procurement so far invented by man by which the
government could reasonably expect to keep relatively honest those who would contract with it. This is
the basic reason why competition through public bidding is the general rule and not the exception.
5. ID.; ID.; JOINT VENTURE NOT CONVERTED INTO AN ORDINARY EQUIPMENT LEASE
AGREEMENT BY SIMPLE REARRANGEMENT OF WORDS AND PARAGRAPHS. I would
address finally the question of whether or not the original contract between PCSO and PGMC which the
Court in the first Kilosbayan case found to be a joint venture, has been so substantially changed as to
have been effectively converted from a joint venture arrangement to an ordinary equipment lease
agreement. The majority of the Court have concluded that the ELA has been effectively "purged" of the
characteristics of a joint venture arrangement and that it should now be regarded as lawful under the
provisions of the revised PCSO charter. It is suggested, with respect that the burden of showing that the
elements found by the Court in the first Kilosbayan case to constitute the prohibited "collaboration,
association or joint venture" have truly (and not simply ostensibly) been expunged from the relationship
between PCSO and PGMC rests, not on Kilosbayan nor on this Court, but rather on PCSO and PGMC.
It is respectfully submitted further that that burden has not been adequately discharged in the present
case by the simple re-arrangement of words and paragraphs of the old contract considering that the
reality of the re-arrangement is controverted by the commercial terms of the new contract.
6. ID.; ID.; ID.; RENTAL IS NOT EXPRESSED IN TERMS OF A FIXED AND ABSOLUTE
FIGURE. I begin with the natare and form of the rental provisions of the ELA. The rental payable by
PCSO as lessee of equipment and other assets owned by PGMC as lessor, is fixed at a specified
percentage, 4.3% of the gross revenues accruing to PCSO out of or in connection with the operation of
such equipment and assets. The rental payable is not, in other words, expressed in terms of a fixed and
absolute figure, although a floor amount per leased terminal is set. Instead, the actual total amount of the
rental rises and falls from month to month as the revenues grow or shrink in volume. I respectfully
suggest that thereby the lessor or the facilities leased has acquired a legal interest either in the business
of the lessee PCSO that is conducted through the operation of such facilities and equipment, or at least
in the income stream of PCSO originating from such operation. In the commercial world, a rental
provision cast in terms of a fixed participation in the gross revenues of the lessee, signals substantial
economic interest in the business of such lessee. Such a provision cannot be regarded as compatible
with an "ordinary" equipment rental agreement. On the other hand, it is of the very substance of a
commercial joint venture and of economic collaboration or association. The assertion that the 4.3%
rental rate is "well within the maximum of 15% net receipt fixed by law" is entirely meaningless insofar
as explaining the structure of the rental provision and the reasonableness thereof is concerned. In the
second place, it is child's play for an accountant to convert absolute figures representing operating
expenses [actual or budgeted] into a percentage of "net receipts [actual or expected]"; there is nothing in
Section 6 (C) of the PCSO charter that either requires or justifies the adoption of the rental provision
found both in the old contract and in the ELA giving PGMC a fixed share in gross revenues. The
explanation offered by the Solicitor General is unfortunately merely contrived; its acceptance depends
on lack of familiarity with elementary accounting concepts.

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7. ID.; ID.; APPROPRIATE RECOURSE TO THE LEGISLATIVE AUTHORITY TO VENTILATE

LEGAL RESTRICTIONS ON ITS REVISED CHARTER. The PCSO appears sincerely convinced
that the legal restrictions placed upon its operations by the actual text of Section 1 (B) of its revised
charter prevent it from realizing the kinds and volume of revenues that it needs for charitable and health
and welfare-oriented programs. In this situation, the appropriate recourse is not to make light of nor to
conjure away those legal restrictions but rather to go to the legislative authority and there ask for further
amendment of its charter. In that same forum, the petitioners may in turn ventilate their own concerns
and deeply felt convictions.
REGALADO, J., dissenting opinion:
1. REMEDIAL LAW; ACTIONS; "LAW OF THE CASE" DOCTRINE; PURPOSE. Even in
American law, the "law of the case" doctrine was essentially designed to express the practice of courts
generally to refuse to reopen what has been decided and, thereby, to emphasize the rule that the final
judgment of the highest court is a final determination of the rights of the parties. That is the actual and
basic role that it was conceived to play in judicial determinations, just like the rationale for the doctrines
of res judicataand conclusiveness of judgment.
2. ID.; ID.; ID.; MAY ARISE FROM AN ORIGINAL HOLDING OF A HIGHER COURT ON A WRIT
OF CERTIORARI. The "law of the case" may also arise from an original holding of a higher court
on a writ of certiorari, and is binding not only in subsequent appeals or proceedings in the same case,
but also in a subsequent suit between the same parties. Furthermore, since in our jurisdiction an original
action for certiorari to control and set aside a grave abuse of official discretion can be commenced in the
Supreme Court itself, it would be absurd that for its ruling therein to constitute the law of the case, there
must first be a remand to a lower court which naturally could not be the court of origin from which the
postulated second appeal should be taken.
3. ID.; ID.; ID.; ID.; WITH SAME BINDING EFFECT WITH THAT OF AN APPEALED CASE.
What I wish to underscore is that where, as in the instant case, the holding of this highest Court on a
specific issue was handed down in an original action for certiorari, it has the same binding effect as it
would have had if promulgated in a case on appeal.
4. ID.; ID.; CAUSE OF ACTION; CONCEPT THEREOF IN PUBLIC INTEREST CASES SHOULD
DIFFER FROM PRIVATE INTEREST LITIGATIONS. It is true that a right of action is the right or
standing to enforce a cause of action. For its purposes, the majority urges the adoption of the standard
concept of a real party in interest based on his possession of a cause of action. It could not have failed to
perceive, but nonetheless refuses to concede that the concept of a cause of action in public interest cases
should not be straitjacketed within its usual narrow confines in private interest litigations.
5. ID.; ID.; REAL PARTY-IN-INTEREST; NO DEFINED RULE FOR ITS DETERMINATION.
There is no clearly defined rule by which one may determine who is or is not real party in interest, nor
has there been found any concise definition of the term. Who is the real party in interest depends on the
peculiar facts of each separate case, and one may be a party in interest and yet not be the sole real party
in interest.
6. ID.; ID.; ID.; ABSENCE OF REMEDIAL MEASURE, AVAILABLE TO PERSONS NOT REAL
PARTIES-IN-INTEREST IN QUESTIONING GOVERNMENT CONTRACTS. If the majority
would have its way in this case, there would be no available judicial remedy against irregularities or
excesses in government contracts for lack of a party with legal standing or capacity to sue. The legal
dilemma or vacuum is supposedly remediable under a suggestion submitted in the majority opinion. The

majority has apparently forgotten its own argument that in the present case petitioners are not the real
parties, hence they cannot avail of any remedial right to file a complaint or suit. It is, therefore, highly
improbable that the Commission on Audit would deign to deal with those whom the majority says are
strangers to the contract. Again, should this Court now sustain the assailed contract, of what avail would
be the suggested recourse to the Ombudsman? Finally, it is a perplexing suggestion that petitioners ask
the Solicitor General to bring a quo warranto suit, either in propria persona or ex relatione, not only
because one has to contend with that official's own views or personal interests but because he is himself
the counsel for respondents in this case. Any proposed remedy must take into account not only the
legalities in the case but also the realities of life.
7. ID.; ID.; JUDGMENT; CHANGE OF MEMBERSHIP OF MEMBERS OF COURT, NOT GROUND
TO REEXAMINE RULING. The majority believes that in view of the retirement and replacement of
two members of the Court, it is time to reexamine the ruling in the first lotto case. A previous judgment
of the Court may, of course, be revisited but if the ostensible basis is the change of membership and
known positions of the new members anent an issue pending in a case in the Court, it may not sit well
with the public as a judicious policy. This would be similar to the situation where a judgment
promulgated by the Court is held up by a motion for reconsideration and which motion, just because the
present Rules do not provide a time limit for the resolution thereof, stays unresolved until the
appointment of members sympathetic thereto. Thus, the unkind criticisms of "magistrate shopping" or
"court packing" levelled by disgruntled litigants is not unknown to this Court.
8. ID.; ID.; "LAW OF THE CASE" DOCTRINE; ISSUE ON RIGHT OF PETITIONER TO FILE AND
MAINTAIN ACTION QUESTIONING LEGALITY OF GOVERNMENT CONTRACTS,
FORECLOSED BY COURT'S JUDGMENT IN FIRST LOTTO CASE. I hold the view that the
matter of the right of petitioners to file and maintain this action whether the objection thereto is
premised on lack of locus standi or right of action has already been foreclosed by our judgment in the
first lotto case, G.R. No. 113375. If the majority refuses to recognize such right under the "law of the
case" principle, I see no reason why that particular issue can still be ventilated now as a survivor of the
doctrinal effects of res judicata.
9. ID.; ID.; ID.; REMOVAL AND REPLACEMENT OF SOME OBJECTIONABLE TERMS OF
CONTRACT DOES NOT EXTINGUISH IDENTITY OF SUBJECT MATTER IN BOTH CASES.
It is undeniable that in that case and the one at bar, there is identity of parties, subject matter and cause
of action. Evidently, the judgment in G.R. No. 113375 was rendered by a court of competent
jurisdiction, it was an adjudication on the merits, and has long become final and executory. There is, to
be sure, an attempt to show that the subject matter in the first action is different from that in the instant
case, since the former was the original contract and the latter is the supposed expanded contract. I am
not persuaded by the proffered distinction. The removal and replacement of some objectionable terms of
a contract, which nevertheless continues to operate under the same basis, with on the same property, for
the same purpose, and through the same contracting parties does not suffice to extinguish the identity of
the subject matter in both cases. This would be to exalt form over substance. Furthermore, respondents
themselves admitted that the new contract is actually the same as the original one, with just some
variants in the terms of the latter to eliminate those which were objected to. The contrary assumption
now being floated by respondents would create chaos in our remedial and contractual laws, open the
door to fraud, and subvert the rules on the finality of judgments.
10. ID.; ID.; CONCLUSIVENESS OF JUDGMENT; ALL ISSUES FINALLY ADJUDGED SHALL BE
CONCLUSIVE BETWEEN PARTIES ON APPEAL; CASE AT BAR. Even assuming purely ex
hypothesi that the amended terms in the expanded lease agreement created a discrete set of litigable
violations of the statutory charter of the Philippine Charity Sweepstakes Office, thereby collectively
resulting in a disparate actionable wrong or delict, that would merely constitute at most a difference in
the causes of action in the former and the present cases. Under Section 49(c), Rule 39 of the Rules of
Court, we would still have a situation of collateral estoppel, better known in this jurisdiction as

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conclusiveness of judgment. Hence, all relevant issues finally adjudged in the prior judgment shall be
conclusive between the parties in the case now before us and that definitely includes at the very least the
adjudgment therein that petitioners have the locus standi or the right to sue respondents on the contracts
concerned.
DAVIDE, JR., J., dissenting opinion:
1. REMEDIAL LAW; SUPREME COURT; SUDDEN REVERSAL OF RULING PUTS TO
JEOPARDY THE FAITH AND CONFIDENCE OF THE PEOPLE IN THE CERTAINTY AND
STABILITY OF THE PRONOUNCEMENTS OF THIS COURT. I am disturbed by the sudden
reversal of our rulings in Kilosbayan, Inc., et al. vs. Guingona, et al. (hereinafter referred to as the first
lotto case) regarding the application or interpretation of the exception clause in paragraph B, Section 1
of the Charter of the PCSO (R.A. No. 1169), as amended by B.P. Blg. 442, and on the issue of locus
standi of the petitioners to question the contract of lease involving the on-line lottery system entered into
between the Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming Management
Corporation (PGMC). Such reversal upsets the salutary doctrines of the law of the case, res judicata, and
stare decisis. It puts to jeopardy the faith and confidence of the people, specially the lawyers and
litigants, in the certainty and stability of the pronouncements of this Court. It opens the floodgates to
endless litigations for reexamination of such pronouncements and weakens this Court's judicial and
moral authority to demand from lower courts obedience thereto and to impose sanctions for their
opposite conduct.

2. ADMINISTRATIVE LAW; PHILIPPINE CHARITY SWEEPSTAKES OFFICE; CANNOT HOLD

AND CONDUCT CHARITY SWEEPSTAKES RACES, LOTTERIES AND OTHER SIMILAR
ACTIVITIES IN COLLABORATION, ASSOCIATION OR JOINT VENTURE WITH ANY OTHER
PARTY. In the first lotto case, this Court also emphatically ruled that the language of Section 1 of
R.A. No. 1169, as amended by B.P. Blg. 42, is indisputably clear that with respect to this [PCSO's]
franchise or privilege "to hold and conduct charity sweepstakes races, lotteries and other similar
activities," the PCSO cannot exercise it "in collaboration, association or joint venture" with any other
party. This is the unequivocal meaning and import of the phrase "except for the activities mentioned in
the preceding paragraph (A)," namely, "charity sweepstakes races, lotteries and other similar activities."
3. REMEDIAL LAW; ACTIONS; UNDER THE PRINCIPLE OF EITHER THE LAW OF THE CASE
OR RES JUDICATA, THE PCSO AND PGMC ARE BOUND BY THE RULING IN THE FIRST
LOTTO CASE ON THE LOCUS STANDI OF THE PETITIONERS AND INTERPRETATION OF
THE EXCEPTION CLAUSE IN PARAGRAPH B, SECTION 1 OF R.A. 1169, AS AMENDED FOR
FAILING TO MOVE FOR ITS RECONSIDERATION. The PCSO and the PGMC never challenged
our application or interpretation of the exception clause and our definitions of the terms collaboration,
association, and joint venture. On the contrary, they unconditionally accepted the same by not asking for
reconsideration of our decision in the first lotto case. Under the principle of either the law of the case or
res judicata the PCSO and the PGMC are bound by the ruling in the first lotto case on the locus standi of
the petitioners and the application or interpretation of the exception clause in paragraph B, Section 1 of
R.A. No. 1169, as amended. Moreover, that application or interpretation has been laid to rest under the
doctrine of stare decisis and has also become part of our legal system pursuant to Article 8 of the Civil
Code which provides: "Judicial decisions applying or interpreting the laws or the constitution shall form
part of the legal system of the Philippines."
4. ID.; ID.; LAW OF CASE; CONSTRUED. The principle of the law of the case "is necessary as a
matter of policy to end litigation. There would be no end to a suit if every obstinate litigant could, by
repeated appeals, compel a court to listen to criticisms on their opinions, or speculate on chances from
changes in its members."

5. ID.; ID.; ID.; DOCTRINE APPLIES WHERE THE SECOND CASE IS BUT A SEQUEL TO AND
CONTINUATION OF THE FIRST LOTTO CASE. It is, however, contended that the law of the case
is inapplicable because that doctrine applies only when a case is before an appellate court a second time
after its remand to a lower court. While indeed the statement may be correct, it disregards the fact that
this case is nothing but a sequel to and is, therefore, for all intents and purposes, a continuation of the
first lotto case. By their conduct, the parties admitted that it is, for which reason the PGMC and the
PCSO submitted in the first lotto case a copy of the ELA in question, and the petitioners commenced the
instant petition also in the said case. Our resolution that the validity of the ELA could not be decided in
the said case because the decision therein had become final does not detract from the fact that this case
is but a continuation of the first lotto case or a new chapter in the raging controversy between the
petitioners, on the one hand, and the PCSO and the PGMC, on the other, on the operation of the on-line
lottery system.
6. ID.; ID.; CONCLUSIVENESS OF JUDGMENT; APPLICABLE TO CASE AT BAR WHERE THE
CONTRACT IN QUESTION IS NOT DIFFERENT FROM OR UNRELATED TO THE FIRST
NULLIFIED CONTRACT. Equally unacceptable is the majority opinion's rejection of the related
doctrine of conclusiveness of judgment on the ground that the question of standing is a legal question, as
this case involves a different or unrelated contract. The legal question of locus standi which was
resolved in favor of the petitioners in the first lotto case is the same in this case and in every subsequent
case which would involve contracts relating or incidental to the conduct or holding of lotteries by the
PCSO in collaboration, association, or joint venture with any person, association, company, or entity.
And, the contract in question is not different from or unrelated to the first nullified contract, for it is
nothing but a substitute for the latter. Respondent Morato was even candid enough to admit that no new
and separate public bidding was conducted for the ELA in question because the PCSO was of the belief
that the public bidding for the nullified contract was sufficient.
7. ID.; ID.; PRECLUSION OF ISSUES OR COLLATERAL ESTOPPEL; DOES NOT APPLY TO
CASE AT BAR WHERE ISSUE INVOLVED IS ONE OF LAW. Its reliance on the ruling in
Montana vs. United States that preclusion of issues or collateral estoppel does not apply to issues of law,
at least when substantially unrelated claims are involved, is misplaced. For one thing, the question of the
petitioners' legal standing in the first lotto case and in this case is one and the same issue of law. For
another, these cases involve the same and not substantially unrelated subject matter, viz., the second
contract between the PCSO and the PGMC on the operation of the on-line lottery system. The majority
opinion likewise failed to consider that in the very authority it cited regarding the exception to the rule
of issue preclusion (Restatement of Law, 2d Judgments S. 28), the second illustration stated therein is
subject to this NOTE: "The doctrine of the stare decisis may lead the court to refuse to reconsider the
question of sovereign immunity," which simply means that stare decisis is an effective bar to a reexamination of a prior judgment.
8. ID.; ID.; DOCTRINE OF STARE DECISIS; CONSTRUED; ABANDONMENT THEREOF NOT
WARRANTED IN CASE AT BAR. The doctrine of stare decisis embodies the legal maxim that a
principle or rule of law which has been established by the decision of a court of controlling jurisdiction
will be followed in other cases involving a similar situation. It is founded on the necessity for securing
certainty and stability in the law and does not require identity or privity of parties. This is explicitly
fleshed out in Article 8 of the Civil Code which provides that decisions applying or interpreting the laws
or the constitution shall form part of the legal system. Such decisions "assume the same authority as the
statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are
applicable, the criteria which must control the actuations not only of those called upon to abide thereby
but also of those in duty bound to enforce obedience thereto." Abandonment thereof must be based only
on strong and compelling reasons which I do not find in this case otherwise, the becoming virtue
of predictability which is expected from this Court would be immeasurably affected and the public's
confidence in the stability of its solemn pronouncements diminished.

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9. ID.; ID.; RES JUDICATA; ASPECTS. The doctrine of res judicata has dual aspects: (1) as a bar to
the prosecution of a second action upon the same claim, demand, or cause of action; and (2) as
preclusion to the relitigation of particular facts or issues in another action between the same parties on a
different claim or cause of action.
10. ID.; ID.; ID.; CONSTRUED. Public policy, judicial orderliness, economy of judicial time, and
the interest of litigants as well as the peace and order of society, all require that stability should be
accorded judgments; that controversies once decided on their merits shall remain in repose; that
inconsistent judicial decisions shall not be made on the same set of facts; and that there be an end to
litigation which, without the said doctrine, would be endless. It not only puts an end to strife, but
recognizes that certainty in legal relations must be maintained. It produces certainty as to individual
rights and gives dignity and respect to judicial proceedings.
11. ID.; ID.; RULE ON REAL PARTY-IN-INTEREST SUBORDINATE TO DOCTRINE OF LOCUS
STANDI. In public law the rule of real party-in-interest is subordinated to the doctrine of locus
standi. The majority opinion declares that the real issue in this case is not whether the petitioners have
locus standi but whether they are the real parties-in-interest. This proposition is a bold move to set up a
bar to taxpayer's suits or cases invested with public interest by requiring strict compliance with the rule
on real-party-in-interest in ordinary civil action, thereby effectively subordinating to that rule the
doctrine of locus standi. I am not prepared to be a party to that proposition. First. Friendenthal, et al.,
whose book is cited in the majority opinion in its discussion of the rule on real party in interest and the
doctrine of locus standi, admit that there is a difference between the two, between the two, and that the
former is not strictly applicable in public law cases. Second. The attempt to use the real-party-in-interest
rule is to resurrect the abandoned restrictive application of locus standi, This Court, speaking through
the constitutionalist nonpareil, Justice and later Chief Justice Enrique Fernando, has already declared in
Tan vs. Macapagal that as far as a taxpayer's suit is concerned, this Court is not devoid of discretion as
to whether or not it should be entertained. Third. Such attempt directly or indirectly restricts the exercise
of the judicial authority of this Court in an original action and there had been many in the past to
determine whether or not there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. Only a very limited few
may qualify, under the real-party-in-interest rule, to bring actions to question acts or contracts tainted
with such vice. Where, because of fear of reprisal, undue pressure, or even connivance with the parties
benefited by the contracts or transactions, the so-called real-party-in-interest chooses not to sue, the
patently unconstitutional and illegal contracts or transactions will be placed beyond the scrutiny of this
Court, to the irreparable damage of the Government, and prejudice to public interest and the general
welfare.

12. STATUTORY CONSTRUCTION; LAWS; LEGISLATIVE AMENDMENT; AUTHOR THEREOF,

BEST AUTHORITY ON INTENTION OR RATIONALE OF AMENDMENT. Before I take up the
defined issues, I find it necessary to meet squarely the majority opinion's interpretation of paragraph B,
Section 1 of R.A. No. 1169, as amended. This is, of course, on the assumption that this Court may now
disregard the doctrines of the law of the case, res judicata, and stare decisis. I respectfully submit that
the best authority on the intention or rationale of a legislative amendment is its author. Fortunately, I
happened to be the author of the exception clause in said provision. The language of that clause is very
short and simple, and the elaboration given therefor, as earlier shown, is equally short and simple. The
sponsor of the measure, then Assemblyman, now Congressman, Ronaldo Zamora did not even ask for
an explanation or clarification; he readily accepted the amendment. Nobody from the floor interpellated
me for an explanation or clarification. I regret then to say that neither the letter nor the spirit of the
exception clause in paragraph B supports the interpretation proposed in the majority opinion. The reason

given in the majority opinion for the alleged prohibition from investing in "activities mentioned in the
preceding paragraph (A)" (i.e., the holding or conducting of charity sweepstakes races, lotteries, and
other similar activities) is that "these are competing activities." In that aspect alone, the majority opinion
has clearly misconstrued the exception clause. The prohibition is not direct against such activities, since
they are in fact the franchised primary activities of the PCSO. What is prohibited is the conduct or
holding thereof "in collaboration, association or joint venture with any person, association, company, or
entity, whether domestic or foreign." In the first lotto case, this Court explained the principal reasons for
such prohibition. If the purpose of the prohibition in the exception clause is indeed to prevent
competition, it would be with more reason that no other person, natural or juridical, should be allowed
to share on the PCSO's franchise to hold and conduct lotteries. In short, the argument in the majority
opinion sustains the rationale of the prohibition.
13. ADMINISTRATIVE LAW; PHILIPPINE CHARITY SWEEPSTAKES OFFICE (PCSO);
EQUIPMENT LEASE CONTRACT (ELA), A JOINT VENTURE CONTRACT; DELETION OF
PROVISIONS WHICH HOWEVER DID NOT AFFECT THE INDIVISIBILITY OF COMMUNITY
OF INTEREST ON THE ON-LINE LOTTERY SYSTEM DOES NOT TRANSFORM CONTRACT
TO ONE OF LEASE. I am not persuaded. To my mind, the parties only performed a surgery on the
nullified contract by merely deleting therefrom provisions which this Court had considered in the first
lotto case to be badges of a joint venture contract and by engrafting some modifications on rental, which
include an option to purchase. The PGMC and the PCSO conveniently forgot that per this Court's
findings in the first lotto case, they had an indivisible community of interest in conception, birth, and
growth of the on-line lottery and that each is wed to the other for better or for worse. The surgery
affected only the post-natal activities of the union, but not the indivisibility of their community of
interest at conception and at the birth of the on-line lottery system. Put differently, it only separated one
from the other from bed and board but did not dissolve the bonds of such indivisibility or community of
interest. This was confirmed by respondent Morato when he candidly confessed in his letter to the COA
Chairman that: [I]t is apparent that the lease of the needed equipment through negotiations is the most
advantageous to the Government since so many studies, plans and procedures had already been worked
out with PGMC since October 1993 as a result of the previous bidding (Sec. 1. e, Executive Order No.
301 [1987]).
14. ID.; ID.; ID.; ID.; RENTAL CLAUSE. Even on the face of the new ELA, the elements of the
proscribed joint venture or, at the very least, collaboration or association, can be detected, albeit they are
hidden behind the skirt of the following: (a) the Rental Clause; (b) the upgrading provision under the
Repair Services Clause; and (c) the details of what are embraced in the term Lottery Equipment and
Accessories subject of the contract, which are found in Annex "A" of the ELA. The Rental Clause
provides for a flexible rate based on a percentage of the gross amount of ticket sales, payable bi-weekly,
with an annual minimum rental fixed at P35,000.00 per terminal in commercial operation, any shortfall
of which shall be paid out of the proceeds of the current ticket sales. This is an unusually novel
arrangement which insures and guarantees the PGMC full participation in the gross proceeds of ticket
sales even if, ultimately, a draw could mean losses to the PCSO. The rental clause is, indeed, a subtle
scheme to unconditionally guaranty PGMC's share in the profits.
15. ID.; ID.; ID.; ID.; UPGRADING CLAUSE. It should be stressed here that in the old contract the
upgrading clause is under facilities, which include among other things all capital equipment, computers,
terminals, and softwares. Under the upgrading provision, new equipment may be used; the number of
terminals may be increased; and new terms and conditions, including rates of "rentals" and the purchase
price in case of exercise of the option to buy, may be agreed upon. This makes the ELA not just a
sweetheart contract, but one which will preserve the parties' indivisible union and community of
interest, thereby giving further credence to this Court's observation in the first lotto case that each is wed
to the other for better or for worse.

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16. ID.; ID.; ID.; ID.; EQUIPMENT. It may be observed that the term facilities in the old contract
included all capital equipment but excluded "technology, intellectual property rights, knowhow,
processes and systems." As this Court found in the first lotto case, there was a separate provision on the
PGMC's obligations (1) to train PCSO and other local personnel and (2) to effect the transfer of
technology and other expertise. Clearly, the inclusion of "technology, intellectual property rights,
knowhow, processes and systems" in the term Equipment was a ploy to hide, again, the continuing
indispensable collaboration of the PGMC in the conduct of the on-line lottery business.
17. ID.; ID.; ID.; PUBLIC BIDDING, A PREREQUISITE. Even assuming that the subject ELA is
not a joint venture contract, still it must be nullified for having been entered into without public bidding
and for being grossly disadvantageous to the Government. The opening paragraph of E.O. No. 298,
series of 1940, of President Manuel L. Quezon, entitled "Prohibiting the Automatic Renewal of
Contracts, Requiring Public Bidding Before Entering Into New Contracts, Providing Exceptions
Therefor," states that . . . contracts for public services or for furnishing of supplies, materials, and
equipment to the Government be submitted to public bidding. This was restated in E.O. No. 301 of
President Corazon C. Aquino, entitled "Decentralizing Actions on Government Negotiated Contracts,
Lease Contracts and Records Disposals, " whose Section 1 reads in part that . . . no contract for public
services or for furnishing supplies, materials and equipment to the government or any of its branches,
agencies or instrumentalities shall be renewed or entered into without public bidding, except under any
of the following situations. It is clear that Sections 1 and 2 of Executive Order No. 301 refer to contracts
for public services, or furnishing supplies, materials, and equipment to the government. In no uncertain
terms, the Executive Order itself distinguishes the terms supplies, materials, and equipment from each
other, i.e., it did not intend to consider them as synonymous terms. If such were the intention, there
would have been no need to enumerate them separately and to limit subparagraphs (a), (b), and (e) to
supplies; subparagraph (c) to materials, and subparagraph (f) to all three (supplies, materials and
equipment). The specific mention of supplies in subparagraphs (a), (b), and (e) was clearly intended to
exclude therefrom materials and equipment, and the specific mention of materials in subparagraph (c)
was likewise intended to exclude supplies and equipment. Expressio unius est exclusio alterius.
Elsewise stated, the Executive Order leaves no room for a construction that confuses supplies with
materials or equipment or either of the last two with the first or with each other. Besides, subparagraph
(e) of Section 1 unequivocally refers to a contract of purchase of supplies. The ELA in question is not a
contract of purchase of supplies. The parties themselves proclaim to the whole world and solemnly
represent to this Court that it is a contract of lease of equipment. They titled it, in bold big letters,
"EQUIPMENT LEASE AGREEMENT," and devote the first clause thereof to EQUIPMENT.
Accordingly, since the ELA is not a contract of purchase of supplies, we are unable to understand why
the DOJ applied Section 1(e) of E.O. No. 301 to exempt the ELA from the public-bidding requirement.
18. ID.; ID.; ID.; NOT COVERED BY COA RULES AND REGULATION FOR PREVENTION OF
IRREGULAR, UNNECESSARY, EXCESSIVE AND EXTRAVAGANT EXPENDITURES. The
submission of the petitioners that the ELA violates paragraph 4.3 of the COA Rules and Regulations for
the Prevention of Irregular, Unnecessary, Excessive, and Extravagant Expenditures is not persuasive.
The said paragraph covers Lease Purchase contracts. The ELA in question hardly qualifies as a lease
purchase contract because there is no perfected agreement to purchase (sale) but only an option on the
part of PCSO to purchase the equipment for P25 million. It is, in fact, an option which is not supported
by a separate and distinct consideration, hence, not really binding upon the PGMC.
19. CIVIL LAW; OBLIGATIONS AND CONTRACTS; OPTIONAL CONTRACT, CONSTRUED.
An optional contract is a privilege existing in one person, for which he had paid a consideration, which
gives him the right to buy certain specified property from another person, if he chooses, at any time
within the agreed period, at a fixed price. Said contract is separate and distinct contract from the
contract which the parties may enter into upon the consummation of the option. The second paragraph
of Article 1479 of the Civil Code expressly provides that "[a]n accepted unilateral promise to buy or to

sell a determinate thing for a price certain is binding upon the promisor if the promise supported by a
consideration distinct from the price."

20. ADMINISTRATIVE LAW; PHILIPPINE CHARITY SWEEPSTAKES OFFICE (PCSO);

EQUIPMENT LEASE CONTRACT (ELA); CONTRACT GROSSLY DISADVANTAGEOUS TO THE
PCSO. A comparison between the nullified contract and the assailed ELA to prove that the latter is
grossly disadvantageous to the PCSO is not at all hampered by any perceived difficulty. For all the
representations, duties, obligations, and responsibilities, as well as the automatic loss of its ownership
over the facilities without any further consideration in favor of the PCSO after the expiration of only
eight years, the PGMC gets only a so-called rental of 4.9% of gross receipts from ticket sales, payable
net of taxes required by law to be withheld, which may, however, be drastically reduced, or in extreme
cases, totally obliterated because the PGMC bears "all risks if the revenue from ticket sales, on an
annualized basis, are insufficient to pay the entire prize money." Under the assailed ELA, however, the
PGMC is entitled to receive a flexible rental equivalent to 4.3% of the gross ticket sale (or only 0.6%
lower than it was entitled to under the old contract) for the use of its on-line lottery system equipment
(as distinguished from facilities in the old contract), which does not anymore include the nationwide
telecommunications network, without any assumption of business risks and the obligations (1) to keep
the facilities in safe condition and if necessary, to upgrade, replace, and improve them from time to time
as technology develops, and bear all expenses relating thereto; (2) to undertake advertising and
promotions campaign; (3) to bear all taxes, amusements, or other charges imposed on the activities
covered by the contract; (4) to pay the premiums for third party or comprehensive insurance on the
facilities: (5) to pay all expenses for water, light, fuel, lubricants, electric power, gas, and other utilities
used and necessary for the operation of the facilities; and to pay the salaries and related costs of skilled
and qualified personnel for administrative and technical operations and maintenance crew. The PGMC
is also given thereunder a special privilege of receiving P25 million as purchase price for the equipment
at the expiration of eight years should the PCSO exercise its option to purchase. Unlike in the old
contract where nothing may at all be due the PGMC of the event that the ticket sales, computed on an
annual basis, are insufficient to pay the entire prize money, under the new ELA the PCSO is under
obligation to pay rental equivalent to 4.3% of the gross receipts from ticket sales, the aggregate amount
of which per year should not be less than the minimum annual rental of P35,000.00 per terminal in
commercial operation. Any shortfall shall be paid out of the proceeds of the then current ticket sales
after payment of prizes and agents' commissions but prior to any other payments, allocations, or
disbursements. The grossness of the disadvantage to the PCSO is all too obvious, and why the PCSO
accepted such unreasonable, unconscionable, and inequitable terms and conditions confounds as.
VITUG, J., concurring opinion:
1. REMEDIAL LAW; COURTS; JUDICIAL POWER, DEFINED. "Judicial power," is such
authority and duty of courts of justice "to settle actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not there has been a grave abuse of discretion,
amounting to lack or excess of jurisdiction, on the part of any branch or instrumentality of the
Government. I take it that the provision of Article VIII, Section 1, Constitution has not been intended to
unduly mutate, let alone to disregard, the long established rules on locus standi. Neither has it been
meant, I most respectfully submit, to do away with the principle of separation of powers and its essential
incident such as by, in effect, conferring omnipotence on, or allowing an intrusion by, the courts in
respect to purely political decisions, the exercise of which is explicitly vested elsewhere, and
subordinate to that of their own the will of either the Legislative Department of the Executive
Department both co-equal, independent and coordinate branches, along with the Judiciary, in our
system of government. Again, if it were otherwise, there indeed would be truth to the charge, in the
words of some constitutionalist, that "judicial tyranny" has been institutionalized by the 1987
Constitution, an apprehension which should, I submit, rather be held far from truth and reality.

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2. ID.; ACTIONS; LOCUS STANDI, RULE THEREON NOT DISREGARDED BY

CONSTITUTIONAL DEFINITION OF JUDICIAL POWER. I most humbly reiterate the separate
opinion I have made in Kilosbayan, Inc., et al., vs. Teofisto Guingona, Sr., etc., et al. (G.R. No. 113375,
promulgated on 05 May 1994). Back to the core of the petition, however, the matter of the legal
standing of petitioners in their suit assailing the subject-contract appears to me, both under substantive
law and the rules of procedure, to still be an insuperable issue. I have gone over carefully the pleadings
submitted in G.R. No. 118910, and I regret my inability to see anything new that can convince me to
depart from the view I have expressed on it in G.R. No. 113375.
DECISION
MENDOZA, J p:
As a result of our decision in G.R. No. 113375 (Kilosbayan, Incorporated v. Guingona, 232 SCRA 110
(1994) invalidating the Contract of Lease between the Philippine Charity Sweepstakes Office (PCSO)
and the Philippine Gaming Management Corp. (PGMC) on the ground that it had been made in
violation of the charter of the PCSO, the parties entered into negotiations for a new agreement that
would be "consistent with the latter's [PCSO] charter . . . and conformable to this Honorable Court's
aforesaid Decision." cdasia
On January 25, 1995 the parties signed an Equipment Lease Agreement (thereafter called ELA) whereby
the PGMC leased on-line lottery equipment and accessories to the PCSO in consideration of a rental
equivalent to 4.3 % of the gross amount of ticket sale derived by the PCSO from the operation of the
lottery which in no case shall be less than an annual rental computed at P35,000.00 per terminal in
Commercial Operation. The rental is to be computed and paid bi-weekly. In the event the bi-weekly
rentals in any year fall short of the annual minimum fixed rental thus computed, the PCSO agrees to pay
the deficiency out of the proceeds of its current ticket sales. (Pars. 1-2)
Under the law, 30% of the net receipts from the sale of tickets is alloted to charity. (R.A. No. 1169, Sec.
6 [B])
The term of the leases is eight (8) years, commencing from the start of commercial operation of the
lottery equipment first delivered to the lessee pursuant to the agreed schedule. (Par. 3) cdtai
In the operation of the lottery, the PCSO is to employ its own personnel. (Par. 5) It is responsible for the
loss of, or damage to, the equipment from any cause and for the cost of their maintenance and repair.
(Pars. 7-8)
Upon the expiration of the leases, the PCSO has the option to purchase the equipment for the sum of
P25 million.
A copy of the ELA was submitted to the Court by the PGMC in accordance with its manifestation in the
prior case. cdt
On February 21, 1995 this suit was filed seeking to declare the ELA invalid on the ground that it is
substantially the same as the Contract of Lease nullified in the first case. Petitioners argue:
1. THE AMENDED ELA IS NULL AND VOID SINCE IT IS BASICALLY OR SUBSTANTIALLY
THE SAME AS OR SIMILAR TO THE OLD LEASE CONTRACT AS REPRESENTED AND
ADMITTED BY RESPONDENTS PGMC AND PCSO.
2. ASSUMING ARGUENDO, THAT THE AMENDED ELA IS MATERIALLY DIFFERENT FROM
THE OLD LEASES CONTRACT, THE AMENDED ELA IS NEVERTHELESS NULL AND VOID
FOR BEING INCONSISTENT WITH AND VIOLATIVE OF PCSO'S CHARTER AND THE
DECISION OF THIS HONORABLE COURT OF MAY 5, 1995. aisadc

3. THE AMENDED EQUIPMENT LEASE AGREEMENT IS NULL AND VOID FOR BEING
VIOLATIVE OF THE LAW ON PUBLIC BIDDING OF CONTRACTS FOR FURNISHING
SUPPLIES, MATERIALS AND EQUIPMENT TO THE GOVERNMENT, PARTICULARLY E.O. NO.
301 DATED 26 JULY 1987 AND E.O. NO. 298 DATED 12 AUGUST 1940 AS AMENDED, AS WELL
AS THE "RULES AND REGULATIONS FOR THE PREVENTION OF IRREGULAR,
UNNECESSARY, EXCESSIVE OR EXTRAVAGANT (IUEE) EXPENDITURE PROMULGATED
UNDER COMMISSION ON AUDIT CIRCULAR NO. 85-55-A DATED SEPTEMBER 8, 1985,
CONSIDERING THAT IT WAS AWARDED AND EXECUTED WITHOUT THE PUBLIC BIDDING
REQUIRED UNDER SAID LAWS AND COA RULES AND REGULATIONS, IT HAS NOT BEEN
APPROVED BY THE PRESIDENT OF THE PHILIPPINES, AND IT IS NOT MOST
ADVANTAGEOUS TO THE GOVERNMENT.
4. THE ELA IS VIOLATIVE OF SECTION 2 (2), ARTICLE IX-D OF THE 1987 CONSTITUTION IN
RELATION TO THE COA CIRCULAR NO. 85-55-A.
The PCSO and PGMC filed a separate comments in which they question the petitioners' standing to
bring suit. They maintain (1) that the ELA is a different lease contract with none of the vestiges of a
joint venture in the Contract of Lease nullified in the prior case; (2) that the ELA did not have to be
submitted to a public bidding because it fell within the exception provided in E.O. No. 301, Sec. 1 (e);
(3) that the power to determine whether the ELA is advantageous to the government is vested in the
Board of Directors of the PCSO; (4) that for the lack of funds the PCSO cannot purchase its own on-line
lottery equipment and has had to enter into a lease contract; (5) that what petitioners are actually seeking
in this suit is to further their moral crusade and political agenda, using the Court as their forum. cdta
For the reason set forth below, we hold that petitioners have no cause against respondents and therefore
their petition should be dismissed.
I. PETITIONERS' STANDING
The Kilosbayan, Inc. is an organization described in its petition as "composed of civic-spirited citizens,
pastors, priests, nuns and lay leaders who are committed to the cause of truth, justice, and national
renewal." Its trustees are also suing in their individual and collective capacities as "taxpayers and
concerned citizens." The other petitioners (Sen. Freddie Webb, Sen. Wigberto Taada and Rep. Joker P.
Arroyo) are members of the Congress suing as such and as "taxpayer and concerned citizens."
Respondents question the right of petitioners to bring this suit on the ground that, not being parties to
the contract of lease which they seek to nullify, they have no personal and substantial interest likely to
be injured by the enforcement of the contract. Petitioners on the other hand contend that the ruling in the
previous case sustaining their standing to challenge the validity of the first contract for the operation of
lottery is now the "law of the case" and therefore the question of their standing can no longer be
reopened. cdasia
Neither the doctrine of stare decisis nor that of "law of the case", nor that of conclusive of judgment
poses a barrier to a determination of petitioners' right to maintain this suit.
Stare decisis is usually the wise policy. But in this case, concern for stability in decisional law does not
call for adherence to what has recently been laid down as the rule. The previous ruling sustaining
petitioners' intervention may itself be considered a departure from settled rulings on "real parties in
interest" because no constitutional issues were actually involved. Just five years before that ruling this
Court had denied standing to a party who, in questioning the validity of another form of lottery, claimed
the right to sue in the capacity of taxpayer, citizen and member of the Bar. (Valmonte v. Philippine
Charity Sweepstakes, G.R. No. 78716, Sept . 22, 1987) Only recently this Court held that members of
Congress have standing to question the validity of presidential veto on the ground that, if true, the
illegality of the veto would impair their prerogatives as members of Congress. Conversely if the
complaint is not grounded on the impairment of the powers of Congress, legislators do not have

93

standing to question the validity of any law or official action. (Philippine Constitution Association v.
Enriquez, 235 SCRA 506 [1994])
There is an additional reason for a reexamination of the ruling on standing. The voting on petitioners'
standing in the previous case was a narrow one, with seven (7) members sustaining petitioners' standing
and six (6) denying petitioners' right to bring the suit. The majority was thus a tenuous one that is not
likely to be maintained in any subsequent litigation. In addition, there have been changes in the
membership of the Court, with the retirement of Justices Cruz and Bidin and the appointment of the
writer of this opinion and Justice Francisco. Given this fact it is hardly tenable to insist on the
maintenance of the ruling as to petitioners' standing. cdta
Petitioners argue that inquiry into their right to bring this suit is barred by the doctrine of "law of the
case." We do not think this doctrine is applicable considering the fact that while this case is a sequel to
G.R. No. 113375, it is not its continuation: The doctrine applies only when a case is before a court a
second time after a ruling by an appellate court. Thus in People v. Pinuila, 103 Phil. 992, 999 (1958), it
was stated:
"'Law of the case' has been defined as the opinion delivered on a former appeal. More specifically, it
means that whatever is once irrevocably established as the controlling legal rule of decision between the
same parties in the same case continues to be the law of these case, whether correct on general
principles or not, so long as the facts on which such decision was predicated continue to be facts of the
case before the court." (21 C.J.S. 330)
"It may be stated as a rule of general application that, where the evidence on a second or succeeding
appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or
issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be
considered or re-adjudicated therein. (5 C.J.S. 1267) cdasia
"In accordance with the general rule stated in Section 1821, where after a definite determination, the
court has remanded the cause for further action below, it will refuse to examine question other than
those arising subsequently to such determination and remand, or other than the propriety of the
compliance with its mandate; and if the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a second appeal . . . .
"As a general rule a decision on a prior appeal of the same is held to be the law of the case whether that
decision is right or wrong, the remedy of the party deeming himself aggrieved to seek a rehearing. (5
C.J.S. 1276-77)
"Questions necessarily involved in the decision on a former appeal will be regarded as the law of the
case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court,
as the presumption is that all the facts in the case bearing on the point decided have received due
consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87)" cdtai
As this Court explained in another case. "The law of the case, as applied to a former decision of an
appellate court, merely expresses the practice of the courts in refusing to reopen what has been decided.
It differs from res judicata in that the conclusiveness of the first judgment is not dependent upon its
finality. The first judgment is generally, if not universally, not final. It relates entirely to questions of
law, and is confined in its operation to subsequent proceedings in the same case . . . ." (Municipality of
Daet v. Court of Appeals, 93 SCRA 503, 521 [1979])
It follows that since the present case is not the same one litigated by the parties before in G.R. No.
113375, the ruling there cannot in any sense be regarded as "the law of this case." The parties are the
same but the cases are not.
Nor is inquiry into petitioners' right to maintain this suit foreclosed by the related doctrine of
"conclusiveness of judgment." 1 According to the doctrine, an issue actually and directly passed upon

the and determined in a former suit cannot again be drawn in question in any future action between the
same parties involving a different cause of action. (Pealosa v. Tuason, 22 Phil. 303, 313 (1912); Heirs
of Roxas v. Galido, 108. 582 [1960]) cdt
It has been held that the rule on conclusiveness of judgment or preclusion of issues or collateral estoppel
does not apply to issues of law, at least when substantially unrelated claims are involved. (Montana v.
United States, 440 U.S. 147, 162, 59 L. Ed. 2d 210, 222 [1979]; BATOR, MELTZER, MISHKIN AND
SHAPIRO, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1058, n. 2 [3rd Ed., 1988])
Following this ruling it was held in Commissioner v. Sunnen, 333 U.S. 591, 92 L. Ed. 898 (1947) that
where a taxpayer assigned to his wife interest in a patent in 1928 and in a suit it was determined that the
money paid to his wife for the years 1929-1931 under the 1928 assignment was not part of his taxable
income, this determination is not preclusive in a second action for collection of taxes on amounts to his
wife under another deed of assignment for other years (1937 to 1941). For income tax purposes what is
decided with respect to one contract is not conclusive as to any other contract which was not then in
issue, however similar or identical it may be. The rule on collateral estoppel, it was held, "must be
confined to situations where the matter raised in the second suit is identical in all respects with that
decided in the first preceding and where the controlling facts and applicable legal rules remain
unchanged." (333 U.S. at 599-600, 92 L. Ed. at 907) Consequently, "if the relevant facts in the two cases
are separate, even though they may be similar or identical, collateral estoppel does not govern the legal
issues which occur in the second case. Thus the second proceeding may involve an instrument or
transaction identical with but, in a form separable from, the one dealt with in the first proceeding. In that
situation a court is free in the second proceeding to make an independent examination of the legal
matters at issue. . . ." (333 U.S. at 601, 92 L. Ed. at 908)
This exception to the General Rule of the Issue Preclusion is authoritatively formulated in Restatement
of the Law 2d, on Judgments, as follows:
Sec. 28. Although an issue is actually litigated and determined by a valid and final judgment, and the
determination is essential to the judgment, relitigation of the issue in a subsequent action between the
parties is not precluded in the following circumstances: cdasia
xxx xxx xxx
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b)
a new determination is warranted in order to take account of an intervening change in the applicable
legal context or otherwise to avoid inequitable administration of the laws; . . .
Illustration:
xxx xxx xxx
2. A brings an action against the municipality of B for tortious injury. The court sustain B's defense of
sovereign immunity and dismisses the action. Several years later A brings the second action against B
for an unrelated tortious injury occurring after the dismissal. The judgment in the first action is not
conclusive on the question whether the defense immunity is available to B. Note: The doctrine of stare
decisis may lead the court to refuse to reconsider the question of sovereign immunity. See Sec. 29,
Comment i.
The question whether the petitioners have standing to question the Equipment Lease Agreement or ELA
is a legal question. As will presently be shown, the ELA, which petitioners seek to declare invalid in this
proceeding, is essentially different from the 1993 Contract of Lease entered into by the PCSO with the
PGMC. Hence the determination in the prior case (G.R. No. 113375) that the petitioner had standing to
challenge the validity of the 1993 Contract of Lease of the parties does not preclude determination of
their standing in the present suit.

94

Not only is petitioners' standing a legal issue that may be determined again in this case. It is, strictly
speaking, not even the issue in this case, since standing is a concept in constitutional law and here no
constitutional question is actually involved. The issue in this case is whether petitioners are the "real
parties-in-interest" within the meaning of Rule 3, Sec. 2 of the Rules of Court which requires that
"Every action must be prosecuted and defended in the name of the real party-in-interest."
The difference between the rule on standing and real party-in-interest has been noted by authorities thus:
"It is important to note . . . that standing because of its constitutional and public policy underpinnings, is
very different from questions relating to whether a particular plaintiff is the real party-in-interest or has
capacity to sue. Although all three requirements are directed towards ensuring that only certain parties
can maintain an action, standing restrictions require a partial consideration of the merits, as well as
broader policy concerns relating to the proper role of the judiciary in certain areas. (FRIEDENTHAL,
KANE AND MILLER, CIVIL PROCEDURE 328 [1985]) aisadc
Standing is a special concern in constitutional law because in some cases suits are brought not by parties
who have been personally injured by the operation of a law or by official action taken, but by concerned
citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is
whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions." (Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d
633 (1962))
Accordingly, in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716, Sept. 22, 1987,
standing was denied to a petitioner who sought to declare a form of lottery known as Instant
Sweepstakes invalid because, as the Court held:
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of three (3) minor children. But
nowhere in his petition does petitioner claim that his rights and privileges as a lawyer or citizen have
been directly and personally injured by the operation of the Instant Sweepstakes. The interest of the
person assailing the constitutionality of a statute must be direct and personal. He must be able to show,
not only the law is invalid, but also that he has sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties
by reason of the statute complained of. cdta
We apprehend no difference between the petitioner in Valmonte and the present petitioners. Petitioners
do not in fact show what particularized interest they have for bringing this suit. It does not detract from
the high regard for petitioners as civic leaders to say that their interest falls short of that required to
maintain an action under the Rule 3, Sec. 2.
It is true that the present action involves not a mere contract between private individuals but one made
by a government corporation. There is, however, no allegation that the public funds are being misspent
so as to make this action a public one and justify relaxation of the requirement that an action must be
prosecuted in the name of the real party-in-interest. (Valmonte v. PCSO, supra; Bugnay Const. and Dev.
Corp. v. Laron, 176 SCRA 240 [1989])
On the other hand, the question as to "real party-in-interest" is whether he is "the party who would be
benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'" (Salonga v. Warner
Barnes & Co., Ltd., 88 Phil. 125, 131 [1951]) cdasia
Petitioners invoke the following Principles and State Policies set forth in Art. II of the Constitution:

The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of
the general welfare are essential for the employment by all the people of the blessings of democracy.
(Sec. 5)
The natural and primary right and duty of the parents in the rearing of the youth for civic efficiency and
the development of moral character shall receive the support of the Government. (Sec. 12) cdtai
The State recognizes the vital role of the youth in nation-building and shall promote their physical,
moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs. (Sec. 13)
The state shall give priority to education, science and technology, arts, culture, and sports to foster
patriotism and nationalism, accelerate social progress, and promote total human liberation and
development. (Sec. 17)
(Memorandum for Petitioners, p. 7) cdt
These are not, however, self executing provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for
legislation.
Thus, while constitutional policies are invoked, this case involves basically questions of contract law.
More specifically, the question is whether petitioners have legal right which has been violated.
In action for annulment of contracts such as this action, the real parties are those who are parties to the
agreement or are bound either principally or subsidiarily or are prejudiced in their rights with respect to
one of the contracting parties and can show the detriment which would positively result to them from
the contract even though they did no intervene in it (Ibaez v. Hongkong & Shanghai Bank, 22 Phil. 572
[1912]), or who claim a right to take part in a public bidding but have been illegally excluded from it.
(See De la Lara Co., Inc. v. Secretary of Public Works and Communications, G.R. No. L-13460, Nov.
28, 1958)
These are parties with "a present substantial interest, as distinguished from a mere expectancy or future,
contingent, subordinate, or consequential interest . . . . The phrase 'present substantial interest' more
concretely is meant such interest of a party in the subject matter of action as will entitle him, under the
substantive law, to recover if the evidence is sufficient, or that he has the legal title to demand and the
defendant will be protected in a payment by him." (1 MORAN, COMMENTS ON THE RULES OF
COURT 154-155 (1979) ) Thus, in Gonzales v. Hechanova, 118 Phil. 1065 (1963) petitioner's right to
question the validity of a government contract for the importation of rice was sustained because he was
a rice planter with substantial production, who had a right under the law to sell to the government.
cdasia
But petitioners do not have such present substantial interest in the ELA as would entitle them to bring
this suit. Denying to them the right to intervene will not leave without remedy any perceived illegality in
the execution of government contracts. Question as to the nature or validity of public contracts or the
necessity for a public bidding before they may be made can be raised in an appropriate case before the
Commission on Audit or before the Ombudsman. The Constitution requires that the Ombudsman and his
deputies, "as protectors of the people shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision, agency or instrumentality
thereof including government-owned or controlled corporations." (Art. XI , Sec. 12) In addition, the
Solicitor General is authorized to bring an action for quo warranto if it should be thought that a
government corporation, like the PCSO, has offended against its corporate charter or misused its
franchise. (Rule 66, Sec. 2 (a) (d))

95

We now turn to the merits of petitioners' claim constituting their cause of action.
II. THE EQUIPMENT LEASE AGREEMENT
This Court ruled in the previous case that the Contract of Leases, which the PCSO had entered into two
with the PGMC on December 17, 1993 for the operation of an on-line lottery system, was actually a
joint venture agreement or, at the very least, a contract involving "collaboration or association" with
another party and for that reason, was void. The Court noted the following features of the contract: cdt
(1) The PCSO had neither funds nor expertise to operate the on-line lottery system so that it would be
dependent on the PGMC for the operation of the lottery system.
(2) The PGMC would exclusively bear all costs and expenses for printing tickets, payment of salaries
and wages of personnel, advertising and promotion and other expenses for the operation of the lottery
system. Mention was made of the provision, which the Court considered "unusual in a lessor-lessee
relationship but inherent in a joint venture," for the payment of the rental not at a fixed amount but at a
certain percentage (4.9%) of the gross receipts from the sale of tickets, and the possibility that "nothing
may be due demandable at all because the PGMC binds itself to 'bear all risks if the revenue from the
ticket sales, on an annualized basis, are insufficient to pay the entire prize money.'" (232 SCRA at 147)
(3) It was only after the term of the contract that PCSO personnel would be ready to operate the lottery
system themselves because it would take the entire eight-year term of the contract for the technology
transfer to be completed. In the view of the Court, this meant that for the duration of the contract, the
PGMC would actually be the operator of the lottery system, and not simply the lessor of equipment.
aisadc
The Court considered the Contract of Lease to be actually a joint venture agreement. From another
angle, it said that the arrangement, especially the provision that all the risks were for the account of the
PGMC, was in effect a lease by the PCSO of its franchise to the PGMC.
These features of the old Contract of Lease have been removed in the present ELA. While the rent is
still expressed in terms of percentage (it is now 4.3% of the gross receipts from the sale of the tickets) in
the ELA, the PGMC is now guaranteed a minimum rent of P35,000.00 a year per terminal in
commercial operation. (Par. 2) The PGMC is thus assured of payment of the rental. Thus par. 2 of the
ELA provides:
2. RENTAL
During the effectivity of this Agreement and the term of this lease as provided in paragraph 3 hereof,
LESSEE shall pay rental to LESSOR equivalent to FOUR POINT THREE PERCENT (4.3%) of the
gross amount of ticket sales from all the LESSEE's on-line lottery operations in the Territory, which
rental shall be computed and payable bi-weekly net of withholding taxes on income, if any: provided
that, in no case shall the annual aggregate rentals per year during the term of the leases be less than the
annual minimum fixed rental computed at P35,000.00 per terminal in commercial operation per annum,
provided, further that the annual minimum fixed rental shall be reduced pro-rata for the number of days
during the year that a terminal is not in commercial operation due to repairs or breakdown. In the event
the aggregate bi-weekly rentals in any year falls short of the annual minimum fixed rental computed at
P35,000.00 per terminal in commercial operation, the LESSEE shall pay such shortfall from out of the
proceeds of the then current ticket sales from LESSEE's on-line lottery in the Territory (after payment
first of prizes and agents' commissions but prior to any other payments, allocations or disbursements)
until said shortfall shall have been fully settled, but without prejudice to the payment to LESSOR of the
then current bi-weekly rentals in accordance with the provisions of the first sentence of this paragraph 2.
The PCSO now bears all losses because the operation of the system is completely in its hands. This
feature of the new contract negates any doubt that it is anything but a lease agreement.

It is contended that the rental of 4.3% is substantially the same as the 4.9% in the old contract because
the reduction is negligible especially now that the PCSO assumes all business risks and risk of loss of,
or damage to, equipment. Petitioners allege that: aisadc
PGMC's annual minimum rental is P35,000.00 per terminal or a total of P70,000,000.00 per annum
considering that there are 2,000 terminals per the amended ELA. In order to meet the amount, based on
the 4.3% rental arrangement without shortfall, the gross ticket sales must amount to at least
P1,627,906,977.00. Multiplying this amount by 4.9 % we get the 4.9% rental fee fixed under the old
lease contract and the product is P79,767,442 .00. Deducting from this amount the sum of
P70,000,000.00 representing the annual minimum rental under the amended ELA, we get the figure of
P9,767,442 which is equivalent to the .06% difference between the rental under the old lease contract
and under the amended ELA.
This amount of P9,767,442.00 cannot possibly cover the costs, expenses and obligations shouldered by
PGMC under the old leases contract but which are now to be borne by the PCSO under the new ELA,
not to mention the additional P25 million that the PCSO has to pay the PGMC if the former exercises its
option to purchase the equipment at the end of the lease period under the amended ELA.
(Petition, p. 37) cdt
To be sure there is nothing unusual in fixing the rental as a certain percentage of the gross receipts. The
lease of space in commercial buildings, for example, involves the payment of a certain percentage of the
receipts in rental. Under the Civil Code (Art. 1643) the only requirement is that the rental be a "price
certain." Petitioners do not claim here that the rental is not "price certain," simply because it is
expressed as a certain percentage of the total gross amount of ticket sales.
Indeed it is not alone the fact that in the old contract the rental was expressed in terms of percentage of
the net proceeds from the sale of tickets which was held to be characteristics of a joint venture
agreement. It was the fact that, in the prior case, the PGMC assumed, in addition, all risks of loss from
the operation of the lottery, with the distinct possibility that nothing might be due it. In the view of the
Court possibility belied claims that the PGMC had no participation in the lottery other than being
merely the lessor of equipment.
In the new contract the rental is also expressed in terms of percentage of the gross proceeds from ticket
sales because the allocation of the receipts under the charter of the PCSO is also expressed in
percentage, to wit: 55% is set aside for prizes; 30% for contribution to charity; and 15% for operating
expenses and capital expenditure. (R.A. No. 1169, Sec. 6) As the Solicitor General points out in his
Comment filed in behalf of the PCSO: aisadc
In the PCSO charter, operating cost are reflected as a percentage of the net receipts (which is defined as
gross receipts less ticket printing costs which shall not exceed 2% and the 1% granted to the
Commission on Higher Education under Republic Act No. 7722). The mandate of the law is that the
operating costs, which include payments for any leased equipment, cannot exceed 15% of net receipts,
or 14.55% of gross receipts. The following conclusions are therefore evident:
a. The 4.3% rental rate for the equipment is well within the maximum of 15% net receipts fixed by law;
b. To obviate any violation of the law, it is best to express large operating costs for budgetary purposes
as a percentage of either gross or net receipts, specifically since the amount of gross receipts can only be
estimated.
c. Large fixed sums of money for major operating costs, such as fixed rental for equipment, can very
well exceed the maximum percentages fixed by law, specifically if actual gross receipts are lower than
estimates for budgetary purposes.
d. The problem of budgeting based on estimates is even more difficult when new projects are involved,
as is the case in the on-line lottery.
(PCSO's Comment, pp. 18-20) cdt

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Petitioners reply that to obviate the possibility that the rental would not exceed 15% of the net receipts
what the respondents should have done was not to agree on a minimum fixed rental of P35,000.00 per
terminal in commercial operation . This is a matter of business judgment which, in the absence of a clear
and convincing showing that it was made in grave abuse of discretion of the PCSO, this Court is not
inclined to review. In this case the rental has to be expressed in terms of percentage of the revenue of the
PCSO because rental are treated in the charter of the agency (R.A. No. 1169, Sec. 6 (C)) as "operating
expenses" and the allotment for "operating expenses" is a percentage of the net receipts.
The ELA also provides:
8. REPAIR SERVICES aisadc
LESSEE shall bear the costs of maintenance and necessary repairs, except those repairs to correct
defective workmanship or replace defective materials used in the manufacture of Equipment discovered
after delivery of the Equipment, in which the case LESSOR shall bear the costs of such repairs and, if
necessary, the replacements. The LESSEE may at any time during the term of the lease, request the
LESSOR to upgrade the equipment and/or increase the number of terminals, in which case the LESSEE
and LESSOR shall agree on an arrangement mutually satisfactory to both of them, upon such terms as
may be mutually agreed upon.
By virtue of this provision on upgrading of equipment, petitioners claim, the parties can change their
entire agreement and thereby, by "clever means and devices," enable the PGMC to "actually operate,
manage, control and supervise the conduct and holding of the on-line lottery," considering that as found
in the first decision, "the PCSO had neither funds of its own nor the expertise to operate and manage an
on-line lottery."
The claim is speculative. It is just as possible to speculate that after sometime operating the lottery
system the PCSO will be able to accumulate enough capital to enable it to buy its own equipment and
gain expertise. As for expertise, after three months of operation of the on-line lottery, there appears to be
no complaint that the PCSO is relying on others, outside its own personnel, to run the system. In any
case as in the construction of statutes, the presumption is that in making contracts the government has
acted in good faith. The doctrine that the possibility of abuse is not a reason for denying power to the
government holds true also in cases involving the validity of contacts made by it. cdta
Finally, because the term "Equipment" is defined in the ELA as including "technology, intellectual
property rights, know-how processes and systems," it is claimed that these items could only be
transferred to the PCSO by the PGMC training PCSO personnel and this was found in the first case to
be a badge of a joint venture.
Like the argument based on the upgrading of equipment, we think this contention is also based on
speculation rather than on fact or experience. Evidence is needed to show that the transfer of technology
would involve the PCSO and its personnel in prohibited or collaboration with the PGMC within the
contemplation of the law.
A contract of lease, as this is defined in Civil law, may call for some form of collaboration or association
between the parties since lease is a "consensual, bilateral, onerous and commutative contract by which
one person binds himself to grant temporarily the use of a thing or the rendering of some service to
another who undertakes to pay some rent, compensation or price." (5 PADILLA, CIVIL CODE 611
(6TH ED. 1974)). The lessor of a commercial building, it may be assumed, would be interested in the
success of its tenants. But it is untenable to contend that this is what the charter of the PCSO
contemplates in prohibiting it from entering into "collaboration or association" with any party. It may be
added that even if the PCSO purchases its own equipment, it still needs the assistance of the PGMC in
the initial phase or operation. cdt

We hold that the ELA is a lease contract and that it contains none of the features of the former contract
which were considered "badges of a joint venture agreement." To further find fault with the new
contract would be to cavil and expose the opposition to the contract to be actually an opposition to
lottery under any and all circumstances. But "[t]he morality of gambling is not a justifiable issue.
Gambling is not illegal per se . . . . It is left to Congress to deal with activity as it sees fit." (Magtajas v.
Pryce Properties Corp. Inc., 234 SCRA 255, 268 (1994). Cf . Lim v. Pacquing, G.R. No. 115044, Jan.
27, 1995) In the case of lottery, there is no dispute that, to enable the Philippine Charity Sweepstakes
Office to raise funds for charity, Congress authorized the Philippine Charity Sweepstakes Office (PCSO)
to hold or conduct lotteries under certain conditions.
We therefore now consider whether under the charter of the PCSO any contract for the operation of an
on-line lottery system, which involves any form of collaboration or association, is prohibited.
III. THE INTERPRETATION of SEC. 1 OF R.A. 1169
In G.R. No. 113375 it was held that the PCSO does not have the power to enter into any contract which
would involve it in any form of "collaboration, association or joint venture" for the holding of
sweepstakes races, lotteries and other similar activities. This interpretation must be reexamined
especially in determining whether petitioners have a cause of action.
We hold that the charter of the PCSO doe not absolutely prohibit it from holding or conducting lottery
"in collaborating, association or joint venture" with another party. What the PCSO is prohibited from
doing is to invest in a business engaged in sweepstakes races, lotteries and similar activities, and it is
prohibited from doing so whether in "collaboration, association or joint venture" with others or "by
itself." The reason for that is that these are competing activities and the PCSO should not invest in the
business of a competitor.
It will be helpful to quote the pertinent provisions of R.A. No. 1169, as amended by B.P. Blg. 42: cdta
Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity Sweepstakes Office,
hereinafter designated the Office, shall be the principal government agency for raising and providing for
funds for heath programs, medical assistance and services and charities of national character, and as
such shall have the general powers conferred in section thirteen of Act Numbered One Thousand Four
Hundred Fifty-Nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and other similar activities, in such
frequency and manner, as shall be determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human Settlements, to engage in heath and welfare-related
investments, programs, projects and activities which may be profit-oriented, by itself or in collaboration,
association or joint venture with any person, association, company or entity, whether domestic or
foreign, except for the activities mentioned in the preceding paragraph (A), for the purpose of providing
for permanent and continuing sources for health programs, including the expansion of existing ones,
medical assistance and services, and/or charitable grants: Provided, That such investments will not
compete with the private sector in the areas where the investments are adequate as may be determined
by the National Economic and Development Authority. aisadc
When parsed, it will be seen that Sec. 1 grants the PCSO authority to do any of the following: (1) to
hold or conduct charity sweepstakes races, lotteries and similar activities; and/or (2) to invest
whether "by itself or in collaboration, association or joint venture with any person, association, company
or entity" in any "health and welfare-related investments, programs, projects and activities which
may be profit oriented," except "the activities mentioned in the preceding paragraph (A)," i.e.,
sweepstakes races, lotteries and similar activities. The PCSO is prohibited from investing in "activities
mentioned in the preceding paragraph (A)" because, as already stated, these are competing activities.

97

The subject of Sec. 1 (B) is the authority of the PCSO to invest in certain projects for the profit in order
to enable it to expand its health programs, medical assistance and charitable grants. The exception in the
law refers to investments in businesses engaged in sweepstakes races, lotteries and similar activities.
The limitation applies not only when the investments is undertaken by the PCSO "in collaboration,
association or joint venture" but also when made by the PCSO alone, "by itself." The prohibition can not
apply to the holding of a lottery by the PCSO itself. Otherwise when it is authorized to do in par. (A)
would be negated by what is prohibited by par. (B).
To harmonize pars. (A) and (B), the latter must be read as referring to the authority of the PCSO to
invest in the business of others. Put in another way, the prohibition in Sec. 1 (B) is not so much against
the PCSO entering into any collaboration, association or joint venture with others as against the PCSO
investing in the business of another franchise holder which would directly compete with PCSO's own
charity sweepstakes races, lotteries or similar activities. The prohibition applies whether the PCSO
makes the investment alone or with others. cdt
The contrary construction given to Sec. 1 in the previous decision is based on remarks made by then
Assemblyman, now Mr. Justice, Davide during the deliberations on what later became B.P. Blg. 42,
amending R.A. No. 1169. It appears, however, that the remark were made in connection with a proposal
to give the PCSO the authority "to engage in any and all investments." It was to provide exception with
regard to the type of investments which the PCSO is authorized to make that the Davide amendment
was adopted. It is reasonable to suppose that the members of the Batasan Pambansa, in approving the
amendment, understood it as referring to the exception to par (B) of Sec. 1 giving the PCSO the power
to make investments. Had it been their intention to prohibit the PCSO from entering into any
collaboration, association or joint venture with others even in instances when the sweepstakes races,
lotteries or similar activities are operated by it ("itself"), they would have made the amendment not in
par. (B), but in par. (A), of Sec. 1, as the logical place for the amendment.
The following excerpt 2 from the record of the discussion on Parliamentary Bill No. 622, which became
B.P. Blg. 422, bears out this conclusion:
MR. ZAMORA.
On the same page, starting from line 18 until line 23, delete the entire paragraph from "b. to engage in
any and all investments. . . ." until the words "charitable grants" on line 23 and in lieu thereof insert the
following: cdasia
SUBJECT TO THE APPROVAL OF THE MINISTER OF HUMAN SETTLEMENTS, TO ENGAGE
IN HEALTH-ORIENTED INVESTMENTS, PROGRAMS, PROJECTS AND ACTIVITIES WHICH
MAY BE PROFIT-ORIENTED, BY ITSELF OR IN A COLLABORATION, ASSOCIATION, OR
JOINT VENTURE WITH ANY PERSON, ASSOCIATION, COMPANY OR ENTITY, WHETHER
DOMESTIC OR FOREIGN, FOR THE PURPOSE OF PROVIDING FOR PERMANENT AND
CONTINUING SOURCES OF FUNDS FOR HEALTH PROGRAMS, INCLUDING THE
EXPANSION OF EXISTING ONES AND/OR CHARITABLE GRANTS.
I move for approval of the amendment, Mr. Speaker.
MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.
MR. DAVIDE.
May I introduce an amendment to the committee amendment? The amendment would be to insert after
"foreign" in the amendment just read the following: EXCEPT FOR THE ACTIVITY IN LETTER (A)
ABOVE. aisadc

When it is a joint venture or in collaboration with any other entity such collaboration or joint venture
must not include activity letter (a) which is the holding and conducting of sweepstakes races, lotteries
and other similar acts.
MR. ZAMORA.
We accept the amendment, Mr. Speaker.
MR. DAVIDE.
Thank you Mr. Speaker. cdtai
THE SPEAKER.
Is there any objection to the amendment? (Silence) The amendment, as amended, is approved.
MR. ZAMORA.
Continuing the line, Mr. Speaker, after "charitable grants" change the period (.) into a semi-colon (;)
and add the following proviso: PROVIDED, THAT SUCH INVESTMENTS, PROGRAMS,
PROJECTS AND ACTIVITIES SHALL NOT COMPETE WITH THE PRIVATE SECTOR IN AREAS
WHERE THE PRIVATE INVESTMENTS ARE ADEQUATE.
May I read the whole paragraph, Mr. speaker.
MR. DAVIDE.
May I introduce an amendment after "adequate". The intention of the amendment is not to leave the
determination of whether it is adequate or not to anybody. And my amendment is to add after "adequate"
the words AS MAY BE DETERMINED BY THE NATIONAL ECONOMIC AND DEVELOPMENT
AUTHORITY. As a matter of fact, it will strengthen the authority to invest in these areas, provided that
the determination of whether the private sector's activity is already adequate must be determined by the
National Economic and Development Authority.
MR. ZAMORA.
Mr. Speaker, the committee accepts the proposed amendment.
MR. DAVIDE.
Thank you, Mr. Speaker. aisadc
THE SPEAKER.
May the sponsor now read the entire paragraph?
MR. ZAMORA.
May I read the paragraph, Mr. Speaker.
"Subject to the Minister of Human Settlements, to engage in health and welfare-oriented investment
programs, projects, and activities which may be profit-oriented, by itself or in collaboration, association
or joint venture with any person, association, company or entity, whether domestic or foreign, EXCEPT
FOR THE ACTIVITIES MENTIONED IN PARAGRAPH (a) for the purpose of providing for
permanent and continuing sources of funds for health programs, including the expansion of existing
ones, medical assistance and services and/or charitable grants: PROVIDED THAT SUCH
INVESTMENTS, HEALTH PROGRAMS, PROJECTS AND ACTIVITIES SHALL NOT COMPETE
WITH THE PRIVATE SECTOR IN AREAS WHERE THE PRIVATE INVESTMENTS ARE
ADEQUATE AS MAY BE DETERMINED BY THE NATIONAL AND ECONOMIC
DEVELOPMENT AUTHORITY."

THE SPEAKER.
Is there any objection to the amendment? aisadc
MR. PELAEZ.
Mr. Speaker.
THE SPEAKER.
The Gentleman from Misamis Oriental is recognized.
MR. PELAEZ.

98

Mr. Speaker, may I suggest that in that proviso, we remove "health programs, projects and activities,"
because the proviso refers only to investments activities "provided that such investments will not
compete with the private sector in areas where the investments are adequate . . ." aisadc
MR. ZAMORA.
It is accepted, Mr. Speaker.
THE SPEAKER.
Is there any objection?
MR. PELAEZ.
Mr. Speaker, may I propose an improvement to the amendment of the Gentlemen from Cebu, just for
style, I would suggest the insertion of the word PRECEDING before the word "paragraph." The phrase
will read "the PRECEDING paragraph." aisadc
MR. ZAMORA.
It is accepted, Mr. Speaker.
THE SPEAKER.
Very well. Is there any objection to the committee amendment, as amended? (Silence) The Chair hears
none; the amendment is approved.
The construction given to Sec. 1 in the previous decision is insupportable in light of both the text of Sec.
1 and the deliberations of the Batasang Pambansa which enacted the amendatory law. aisadc
IV. REQUIREMENT OF PUBLIC BIDDING
Finally the question is whether the ELA is subject to public bidding. In justifying the award of the
contract to the PGMC without public bidding, the PCSO invokes E.O. No. 301, which states in pertinent
part:
Sec. 1. Guidelines for Negotiated Contracts. Any provision of the law, decree, executive order or
other issuances to the contrary notwithstanding, no contract for public services or for furnishing
supplies, materials and equipment to the government or any of its branches, agencies or
instrumentalities shall be renewed or entered into without public bidding, except under any of the
following situations. cdasia
a. Whenever the supplies are urgently needed to meet an emergency which may be involve the loss of,
or danger to, life and/or property:
b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed
without causing detriment to the public service;
c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have subdealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more
advantageous terms to the government; cdtai
d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two
consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or
non-conforming to specifications:
e. In cases where it is apparent that the requisition of the need supplies through negotiated purchase is
most advantageous to the government to be determined by the Department Head concerned; and
f. Whenever the purchase is made from an agency of the government. cdt
Petitioners point out that while the general rule requiring public bidding covers "contract[s] for public
services or for furnishing supplies, materials and equipment" to the government or to any of its
branches, agencies or instrumentalities, the exceptions in pars. (a), (b), (d), (e), and (f) refer to contracts
for the furnishing of supplies only, while par. (c) refers to the furnishing of materials, only. They argue
that as the general rule covers the furnishing of "supplies, materials and equipment," the reference in the

exceptions to the furnishing of "supplies" must be understood as excluding the furnishing of any of the
other items, i.e. "materials" and "equipment."
E.O. No. 301, Sec. 1 applies only to contracts for the purchase of supplies, materials and equipment. It
does not refer to contracts of lease of equipment like the ELA. The provisions on lease are found in
Secs. 6 and 7 but they refer to the lease of privately-owned buildings or spaces for government use or of
government-owned buildings or spaces for private use, and these provisions do not require public
bidding. These provisions state:
Sec. 6. Guidelines for Lease Contracts. Any provision of law, decree, executive order or other
issuances to the contrary notwithstanding, the Department of Public Works and Highways (DPWH),
with respect to the leasing of privately-owned buildings or spaces for government use or of governmentowned buildings or space for private use, shall formulate uniform standards or guidelines for
determining the reasonableness of the terms of lease contracts and of rental rates involved. aisadc
Sec. 7. Jurisdiction Over Lease Contracts. The heads of agency intending to rent privately-owned
buildings or spaces for their use, or to lease out government-owned buildings or spaces for private use,
shall have authority to determine the reasonableness of the terms of the lease and the rental rates thereof,
and to enter in such leases contracts without need of prior approval by higher authorities, subject to
compliance with the uniform standards or guidelines established pursuant to Section 6 hereof by the
DPWH and to the audit jurisdiction of COA or its duly authorized representative in accordance with
existing rules and regulations.
It thus difficult to see how E.O. No. 301 can be applied to the ELA when the only feature of the ELA
that may be thought of as close to a contract of purchase and sale is the option to buy given to the
PCSO. An option to buy is not of course a contract of purchase and sale.
Even assuming that Sec. 1 of E.O. 301 applies to lease contracts, the reference to "supplies" in the
exceptions can not strictly construed to exclude the furnishing of "materials" and "equipment" without
defeating the purpose for which these exceptions are made. For example, par. (a) excepts from the
requirement of public bidding the furnishing of "supplies" which are "urgently needed to meet an
emergency which may involve the loss of, or danger to, life and/or property." Should rescue operations
during a calamity, such as an earthquake, require the use of heavy equipment, either by purchase or
lease, no one can insist that there should first be a public bidding before the equipment may be
purchased or leased because the heavy equipment is not a "supply" and Sec. 1 (a) is limited to the
furnishing of "supplies" that are urgently needed. cdta
Petitioners contend that in any event the contract in question is not the "most advantageous to the
government." Whether the making of the present ELA meets this condition is not to be judged by a
comparison, line by line, of its provisions with those of the old contract which this Court found to be in
reality a joint venture agreement. In some respects the old contracts would be more favorable to the
government because the PGMC assumed many of the risks and burdens incident to the operation of the
on-line lottery system, while under the ELA it is freed from these burdens. That is because the old
contract was a joint venture agreement. The ELA, on the other hand, is a lease contract, with the PCSO,
as lessee, bearing solely the risks and burdens of operating the on-line lottery system.
It is paradoxical that in their effort to show that the ELA is a joint venture agreement and not a lease
contract, petitioners point to contractual provisions whereby the PGMC assumed risk and losses which
might conceivably be incurred in the operation of the lottery system, but to show that the present lease
agreement is not the most advantageous arrangement that can be obtained, the very absence of these
features of the old contract which made it a joint venture agreement, is criticized.
Indeed the question is not whether compared with the former joint venture agreement the present lease
contract is "[more] advantageous to the government." The question is whether under the circumstances,
the ELA is the most advantageous contract that could be obtained compared with similar lease

99

agreements which the PCSO could have made with other parties. Petitioners have not shown that more
favorable terms could have been obtained by the PCSO or that at any rate the ELA, which the PCSO
concluded with the PGMC, is disadvantageous to the government. cdasia

For the foregoing reasons, we hold:

(1) that petitioners have neither standing to bring this suit nor substantial interest to make them real
parties in interest within the meaning of Rule 3, Sec. 2;
(2) that a determination of the petitioners' right to bring this suit is not precluded or barred by the
decision in the prior case between the parties; cdtai
(3) that the Equipment Lease Agreement of January 25, 1995 is valid as a lease contract under the Civil
Code and is not contrary to the charter of the Philippine Charity Sweepstakes Office;

EN BANC
[G.R. No. 167614. March 24, 2009.]
ANTONIO M. SERRANO, petitioner, vs. GALLANT MARITIME
SERVICES, INC. and MARLOW NAVIGATION CO., INC., respondents.

(4) that under Sec. 1 (A) of its charter (R.A. 1169), the Philippine Charity Sweepstakes Office has
authority to enter into a contract for the holding of an on-line lottery, whether alone or in association,
collaboration or joint venture with another party, so long as it itself holds or conducts such lottery; and
(5) That the Equipment Lease Agreement in question did not have to be submitted to the public bidding
as a condition for its validity. aisadc
WHEREFORE, the Petition for Prohibition, Review and/or Injunction seeking to declare the Equipment
Lease Agreement between the Philippine Charity Sweepstakes Office and the Philippine Gaming
Management Corp. invalid is DISMISSED.
SO ORDERED.
||| (Kilosbayan, Inc. v. Morato, G.R. No. 118910, [July 17, 1995], 320 PHIL 171-199)

DECISION

AUSTRIA-MARTINEZ, J p:
For decades, the toil of solitary migrants has helped lift entire families and
communities out of poverty. Their earnings have built houses, provided health
care, equipped schools and planted the seeds of businesses. They have woven
together the world by transmitting ideas and knowledge from country to
country. They have provided the dynamic human link between cultures,
societies and economies. Yet, only recently have we begun to understand not
only how much international migration impacts development, but how smart
public policies can magnify this effect. TacESD
United
Nations
Secretary-General
Ban
Ki-Moon
Global
Forum
Migration
Development

on
and

Brussels, July 10, 2007 1

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section
10, Republic Act (R.A.) No. 8042, 2 to wit:
Sec. 10. Money Claims. . . . In case of termination of overseas employment
without just, valid or authorized cause as defined by law or contract, the
workers shall be entitled to the full reimbursement of his placement fee with
interest of twelve percent (12%) per annum, plus his salaries for the unexpired
portion of his employment contract or for three (3) months for every year of
the unexpired term, whichever is less.
xxx xxx xxx (Emphasis and underscoring supplied)

100

does not magnify the contributions of overseas Filipino workers (OFWs) to national development,
but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal
dismissal to their lump-sum salary either for the unexpired portion of their employment contract
"or for three months for every year of the unexpired term, whichever is less" (subject clause).
Petitioner claims that the last clause violates the OFWs' constitutional rights in that it impairs the
terms of their contract, deprives them of equal protection and denies them due process.
By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December 8,
2004 Decision 3 and April 1, 2005 Resolution 4 of the Court of Appeals (CA), which applied the subject
clause, entreating this Court to declare the subject clause unconstitutional.
Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents)
under a Philippine Overseas Employment Administration (POEA)-approved Contract of Employment
with the following terms and conditions:

Nov. 01/30, 1998 2,590.00

Dec. 01/31, 1998 2,590.00
Jan. 01/31, 1999 2,590.00
Feb. 01/28, 1999 2,590.00
Mar. 1/19, 1999 (19 days) incl. leave pay 1,640.00

25,382.23
Amount adjusted to chief mate's salary

Duration of contract 12 months

(March 19/31, 1998 to April 1/30, 1998) + 1,060.50 10

Position Chief Officer

Basic monthly salary US$1,400.00

TOTAL CLAIM US$26,442.73 11

Hours of work 48.0 hours per week

=============

Overtime US$700.00 per month

Vacation leave with pay 7.00 days per month 5
On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded
employment contract for the position of Second Officer with a monthly salary of US$1,000.00, upon the
assurance and representation of respondents that he would be made Chief Officer by the end of April
1998. 6
Respondents did not deliver on their promise to make petitioner Chief Officer. 7 Hence, petitioner
refused to stay on as Second Officer and was repatriated to the Philippines on May 26,
1998. 8 DHAcET
Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March
19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and
seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23)
days.
Petitioner filed with the Labor Arbiter (LA) a Complaint 9 against respondents for constructive
dismissal and for payment of his money claims in the total amount of US$26,442.73, broken down as
follows:
May 27/31, 1998 (5 days) incl. Leave pay US$413.90
June 01/30, 1998 2,590.00

as well as moral and exemplary damages and attorney's fees. SIDTCa

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and
awarding him monetary benefits, to wit:
WHEREFORE, premises considered, judgment is hereby rendered declaring
that the dismissal of the complainant (petitioner) by the respondents in the
above-entitled case was illegal and the respondents are hereby ordered to pay
the complainant [petitioner], jointly and severally, in Philippine Currency,
based on the rate of exchange prevailing at the time of payment, the amount
of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS
(US $8,770.00), representing the complainant's salary for three (3) months
of the unexpired portion of the aforesaid contract of employment.
The respondents are likewise ordered to pay the complainant [petitioner],
jointly and severally, in Philippine Currency, based on the rate of exchange
prevailing at the time of payment, the amount of FORTY FIVE U.S.
DOLLARS (US$ 45.00), 12 representing the complainant's claim for a salary
differential. In addition, the respondents are hereby ordered to pay the
complainant, jointly and severally, in Philippine Currency, at the exchange rate
prevailing at the time of payment, the complainant's (petitioner's) claim for
attorney's fees equivalent to ten percent (10%) of the total amount awarded to
the aforesaid employee under this Decision.

July 01/31, 1998 2,590.00

The claims of the complainant for moral and exemplary damages are hereby
DISMISSED for lack of merit.

August 01/31, 1998 2,590.00

All other claims are hereby DISMISSED.

Sept. 01/30, 1998 2,590.00

SO ORDERED. 13 (Emphasis supplied)

Oct. 01/31, 1998 2,590.00

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary
period of three months only rather than the entire unexpired portion of nine months and 23 days of

101

petitioner's employment contract applying the subject clause. However, the LA applied the salary rate
of US$2,590.00, consisting of petitioner's "[b]asic salary, US$1,400.00/month + US$700.00/month,
fixed overtime pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per
month." 14
Respondents appealed 15 to the National Labor Relations Commission (NLRC) to question the finding
of the LA that petitioner was illegally dismissed. ESacHC
Petitioner also appealed 16 to the NLRC on the sole issue that the LA erred in not applying the ruling of
the Court in Triple Integrated Services, Inc. v. National Labor Relations Commission 17 that in case of
illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts. 18
In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:
WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents
are hereby ordered to pay complainant, jointly and severally, in Philippine
currency, at the prevailing rate of exchange at the time of payment the
following:

I
The Court of Appeals and the labor tribunals have decided the case in a way
not in accord with applicable decision of the Supreme Court involving similar
issue of granting unto the migrant worker back wages equal to the unexpired
portion of his contract of employment instead of limiting it to three (3) months.
II
In the alternative that the Court of Appeals and the Labor Tribunals were
merely applying their interpretation of Section 10 of Republic Act No. 8042, it
is submitted that the Court of Appeals gravely erred in law when it failed to
discharge its judicial duty to decide questions of substance not theretofore
determined by the Honorable Supreme Court, particularly, the constitutional
issues raised by the petitioner on the constitutionality of said law, which
unreasonably, unfairly and arbitrarily limits payment of the award for back
wages of overseas workers to three (3) months. HETDAa
III

1. Three (3) months salary

$1,400 x 3 US$4,200.00
2. Salary differential 45.00

Even without considering the constitutional limitations [of] Sec. 10

of Republic Act No. 8042, the Court of Appeals gravely erred in law in
excluding from petitioner's award the overtime pay and vacation pay provided
in his contract since under the contract they form part of his salary. 28

US$4,245.00
3. 10% Attorney's fees 424.50

TOTAL US$4,669.50
==========
The other findings are affirmed.
SO ORDERED. 19

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and
sickly, and he intends to make use of the monetary award for his medical treatment and
medication. 29 Required to comment, counsel for petitioner filed a motion, urging the court to allow
partial execution of the undisputed monetary award and, at the same time, praying that the constitutional
question be resolved. 30
Considering that the parties have filed their respective memoranda, the Court now takes up the full merit
of the petition mindful of the extreme importance of the constitutional question raised therein.
On the first and second issues

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing
the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide
for the award of overtime pay, which should be proven to have been actually performed, and for
vacation leave pay." 20

The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not
disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three
fora. What remains disputed is only the computation of the lump-sum salary to be awarded to petitioner
by reason of his illegal dismissal.

Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of
the subject clause. 21 The NLRC denied the motion. 22

Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the
monthly rate of US$1,400.00 covering the period of three months out of the unexpired portion of nine
months and 23 days of his employment contract or a total of US$4,200.00.

Petitioner filed a Petition for Certiorari 23 with the CA, reiterating the constitutional challenge against
the subject clause. 24 After initially dismissing the petition on a technicality, the CA eventually gave
due course to it, as directed by this Court in its Resolution dated August 7, 2003 which granted the
petition for certiorari, docketed asG.R. No. 151833, filed by petitioner.
In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the
applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner. 25
His Motion for Reconsideration 26 having been denied by the CA, 27 petitioner brings his cause to this
Court on the following grounds:

Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the
US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of
US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his employment
contract, computed at the monthly rate of US$2,590.00. 31 AcTHCE
The Arguments of Petitioner
Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of
OFWs to negotiate for and stipulate in their overseas employment contracts a determinate employment

102

period and a fixed salary package. 32 It also impinges on the equal protection clause, for it treats OFWs
differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum
salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to the same
monetary award for local workers when their dismissal is declared illegal; that the disparate treatment is
not reasonable as there is no substantial distinction between the two groups; 33 and that it defeats
Section 18, 34 Article II of the Constitution which guarantees the protection of the rights and welfare of
all Filipino workers, whether deployed locally or overseas. 35
Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with
existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are
conflicting rulings on this, petitioner urges the Court to sort them out for the guidance of affected
OFWs. 36
Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other
purpose but to benefit local placement agencies. He marks the statement made by the Solicitor General
in his Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the payment
of money claims in the event that jurisdiction over the foreign employer is not
acquired by the court or if the foreign employer reneges on its obligation.
Hence, placement agencies that are in good faith and which fulfill their
obligations are unnecessarily penalized for the acts of the foreign employer. To
protect them and to promote their continued helpful contribution in
deploying Filipino migrant workers, liability for money claims was reduced
under Section 10 of R.A. No. 8042. 37 (Emphasis supplied)
Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause
sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers better off than
local employers because in cases involving the illegal dismissal of employees, foreign employers are
liable for salaries covering a maximum of only three months of the unexpired employment contract
while local employers are liable for the full lump-sum salaries of their employees. As petitioner puts it:
In terms of practical application, the local employers are not limited to the
amount of backwages they have to give their employees they have illegally
dismissed, following well-entrenched and unequivocal jurisprudence on the
matter. On the other hand, foreign employers will only be limited to giving the
illegally dismissed migrant workers the maximum of three (3) months unpaid
salaries notwithstanding the unexpired term of the contract that can be more
than three (3) months. 38
Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the
salaries and other emoluments he is entitled to under his fixed-period employment contract. 39
The Arguments of Respondents
In their Comment and Memorandum, respondents contend that the constitutional issue should not be
entertained, for this was belatedly interposed by petitioner in his appeal before the CA, and not at the
earliest opportunity, which was when he filed an appeal before the NLRC. 40 cTACIa
The Arguments of the Solicitor General
The Solicitor General (OSG) 41 points out that as R.A. No. 8042 took effect on July 15, 1995, its
provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No.
8042 having preceded petitioner's contract, the provisions thereof are deemed part of the minimum

terms of petitioner's employment, especially on the matter of money claims, as this was not stipulated
upon by the parties. 42
Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their
employment, such that their rights to monetary benefits must necessarily be treated differently. The OSG
enumerates the essential elements that distinguish OFWs from local workers: first, while local workers
perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers, over
whom it is difficult for our courts to acquire jurisdiction, or against whom it is almost impossible to
enforce judgment; and second, as held in Coyoca v. National Labor Relations
Commission 43 and Millares v. National Labor Relations Commission, 44 OFWs are contractual
employees who can never acquire regular employment status, unlike local workers who are or can
become regular employees. Hence, the OSG posits that there are rights and privileges exclusive to local
workers, but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the
differentiated treatment under the subject clause of the money claims of OFWs who are illegally
dismissed. Thus, the provision does not violate the equal protection clause nor Section 18, Article II of
the Constitution. 45
Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to
mitigate the solidary liability of placement agencies for this "redounds to the benefit of the migrant
workers whose welfare the government seeks to promote. The survival of legitimate placement agencies
helps [assure] the government that migrant workers are properly deployed and are employed under
decent and humane conditions." 46
The Court's Ruling
The Court sustains petitioner on the first and second issues.
When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such
as the Congress, it does so only when these conditions obtain: (1) that there is an actual case or
controversy involving a conflict of rights susceptible of judicial determination; 47 (2) that the
constitutional question is raised by a proper party 48 and at the earliest opportunity; 49 and (3) that the
constitutional question is the very lis mota of the case, 50 otherwise the Court will dismiss the case or
decide the same on some other ground. 51 DICcTa
Without a doubt, there exists in this case an actual controversy directly involving petitioner who is
personally aggrieved that the labor tribunals and the CA computed his monetary award based on the
salary period of three months only as provided under the subject clause.
The constitutional challenge is also timely. It should be borne in mind that the requirement that a
constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the
pleadings before a competent court, such that, if the issue is not raised in the pleadings before that
competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be
considered on appeal. 52 Records disclose that the issue on the constitutionality of the subject clause
was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial Reconsideration
with said labor tribunal, 53 and reiterated in his Petition forCertiorari before the CA. 54 Nonetheless,
the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence
to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial
function its function in the present case is limited to determining questions of fact to which the
legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in accordance with
the standards laid down by the law itself; 55 thus, its foremost function is to administer and
enforce R.A. No. 8042, and not to inquire into the validity of its provisions. The CA, on the other hand,
is vested with the power of judicial review or the power to declare unconstitutional a law or a provision
thereof, such as the subject clause. 56 Petitioner's interposition of the constitutional issue before the CA
was undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its decision.

103

The third condition that the constitutional issue be critical to the resolution of the case likewise obtains
because the monetary claim of petitioner to his lump-sum salary for the entire unexpired portion of his
12-month employment contract, and not just for a period of three months, strikes at the very core of the
subject clause.
Thus, the stage is all set for the determination of the constitutionality of the subject clause.
Does
the
Article
III
of contracts?

subject
of

clause
violate
the Constitution on

Section
10,
non-impairment

The answer is in the negative.

Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the
term of his employment and the fixed salary package he will receive 57 is not tenable. ETAICc
Section 10, Article III of the Constitution provides:
No law impairing the obligation of contracts shall be passed.
The prohibition is aligned with the general principle that laws newly enacted have only a prospective
operation, 58 and cannot affect acts or contracts already perfected;59 however, as to laws already in
existence, their provisions are read into contracts and deemed a part thereof. 60 Thus, the nonimpairment clause under Section 10, Article II is limited in application to laws about to be enacted that
would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner
changing the intention of the parties thereto.
As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the
employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A.
No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when
the parties executed their 1998 employment contract, they were deemed to have incorporated into it all
the provisions of R.A. No. 8042.
But even if the Court were to disregard the timeline, the subject clause may not be declared
unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the
exercise of the police power of the State to regulate a business, profession or calling, particularly the
recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and
well-being of OFWs wherever they may be employed. 61 Police power legislations adopted by the State
to promote the health, morals, peace, education, good order, safety, and general welfare of the people are
generally applicable not only to future contracts but even to those already in existence, for all private
contracts must yield to the superior and legitimate measures taken by the State to promote public
welfare. 62
Does
the
subject
clause
violate
Article
III
of
the Constitution,
and
Article
II
and
Section
3,
Article
as a protected sector?

XIII

Section
Section
on

The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:
No person shall be deprived of life, liberty, or property without due process of
law nor shall any person be denied the equal protection of the law.

1,
18,
labor

Section 18, 63 Article II and Section 3, 64 Article XIII accord all members of the labor sector, without
distinction as to place of deployment, full protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to
economic security and parity: all monetary benefits should be equally enjoyed by workers of similar
category, while all monetary obligations should be borne by them in equal degree; none should be
denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in like
circumstances. 65 AECacT
Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees
fit, a system of classification into its legislation; however, to be valid, the classification must comply
with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the
law; 3) it is not limited to existing conditions only; and 4) it applies equally to all members of the
class. 66
There are three levels of scrutiny at which the Court reviews the constitutionality of a classification
embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification
needs only be shown to be rationally related to serving a legitimate state interest; 67 b) the middle-tier
or intermediate scrutiny in which the government must show that the challenged classification serves an
important state interest and that the classification is at least substantially related to serving that
interest; 68 and c) strict judicial scrutiny 69 in which a legislative classification which impermissibly
interferes with the exercise of a fundamental right 70 or operates to the peculiar disadvantage of a
suspect class 71 is presumed unconstitutional, and the burden is upon the government to prove that the
classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest. 72
Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications 73 based on
race 74 or gender 75 but not when the classification is drawn along income categories. 76
It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee
Association, Inc. v. Bangko Sentral ng Pilipinas, 77 the constitutionality of a provision in the charter of
the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was challenged for
maintaining its rank-and-file employees under the Salary Standardization Law (SSL), even when the
rank-and-file employees of other GFIs had been exempted from the SSL by their respective charters.
Finding that the disputed provision contained a suspect classification based on salary grade, the Court
deliberately employed the standard of strict judicial scrutiny in its review of the constitutionality of said
provision. More significantly, it was in this case that the Court revealed the broad outlines of its judicial
philosophy, to wit: aHDTAI
Congress retains its wide discretion in providing for a valid classification, and
its policies should be accorded recognition and respect by the courts of justice
except when they run afoul of the Constitution. The deference stops where the
classification violates a fundamental right, or prejudices persons accorded
special protection by the Constitution. When these violations arise, this Court
must discharge its primary role as the vanguard of constitutional guaranties,
and require a stricter and more exacting adherence to constitutional limitations.
Rational basis should not suffice.
Admittedly, the view that prejudice to persons accorded special protection by
the Constitution requires a stricter judicial scrutiny finds no support in
American or English jurisprudence. Nevertheless, these foreign decisions
and authorities are not per se controlling in this jurisdiction. At best, they are
persuasive and have been used to support many of our decisions. We should
not place undue and fawning reliance upon them and regard them as

104

indispensable mental crutches without which we cannot come to our own

decisions through the employment of our own endowments. We live in a
different ambience and must decide our own problems in the light of our own
interests and needs, and of our qualities and even idiosyncrasies as a people,
and always with our own concept of law and justice. Our laws must be
construed in accordance with the intention of our own lawmakers and such
intent may be deduced from the language of each law and the context of other
local legislation related thereto. More importantly, they must be construed to
serve our own public interest which is the be-all and the end-all of all our laws.
And it need not be stressed that our public interest is distinct and different from
others.
xxx xxx xxx
Further, the quest for a better and more "equal" world calls for the use of equal
protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and action in
the Constitution. The Preamble proclaims "equality" as an ideal precisely in
protest against crushing inequities in Philippine society. The command to
promote social justice in Article II, Section 10, in "all phases of national
development", further explicitated in Article XIII, are clear commands to the
State to take affirmative action in the direction of greater equality. . . . [T]here
is thus in the Philippine Constitution no lack of doctrinal support for a more
vigorous state effort towards achieving a reasonable measure of equality.
Our present Constitution has gone further in guaranteeing vital social and
economic rights to marginalized groups of society, including labor. Under
the policy of social justice, the law bends over backward to accommodate the
interests of the working class on the humane justification that those with less
privilege in life should have more in law. And the obligation to afford
protection to labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a living
reality. Social justice calls for the humanization of laws and the equalization
of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. TDcHCa
xxx xxx xxx
Under most circumstances, the Court will exercise judicial restraint in deciding
questions of constitutionality, recognizing the broad discretion given to
Congress in exercising its legislative power. Judicial scrutiny would be based
on the "rational basis" test, and the legislative discretion would be given
deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental

right, or the perpetuation of prejudice against persons favored by
the Constitutionwith special protection, judicial scrutiny ought to be more
strict. A weak and watered down view would call for the abdication of this
Court's solemn duty to strike down any law repugnant to the Constitution and
the rights it enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or one of its

instrumentalities. Oppressive acts will be struck down regardless of the

character or nature of the actor.
xxx xxx xxx
In the case at bar, the challenged proviso operates on the basis of the salary
grade or officer-employee status. It is akin to a distinction based on economic
class and status, with the higher grades as recipients of a benefit specifically
withheld from the lower grades. Officers of the BSP now receive higher
compensation packages that are competitive with the industry, while the
poorer, low-salaried employees are limited to the rates prescribed by the SSL.
The implications are quite disturbing: BSP rank-and-file employees are paid
the strictly regimented rates of the SSL while employees higher in rank
possessing higher and better education and opportunities for career
advancement are given higher compensation packages to entice them to
stay. Considering that majority, if not all, the rank-and-file employees
consist of people whose status and rank in life are less and limited, especially
in terms of job marketability, it is they and not the officers who have
the real economic and financial need for the adjustment. This is in accord
with the policy of the Constitution "to free the people from poverty, provide
adequate social services, extend to them a decent standard of living, and
improve the quality of life for all." Any act of Congress that runs counter to
this constitutional desideratum deserves strict scrutiny by this Court before it
can pass muster. (Emphasis supplied)
Imbued with the same sense of "obligation to afford protection to labor", the Court in the present case
also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect
classification prejudicial to OFWs.
Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a
closer examination reveals that the subject clause has a discriminatory intent against, and an invidious
impact on, OFWs at two levels:
First, OFWs with employment contracts of less than one year vis--vis OFWs
with employment contracts of one year or more;
Second, among OFWs with employment contracts of more than one year; and
Third, OFWs vis--vis local workers with fixed-period employment; cITCAa
OFWs
less
employment
more

with
employment
contracts
than
one
year vis--vis OFWs
contracts
of
one
year

of
with
or

As pointed out by petitioner, 78 it was in Marsaman Manning Agency, Inc. v. National Labor Relations
Commission 79 (Second Division, 1999) that the Court laid down the following rules on the application
of the periods prescribed under Section 10 (5) of R.A. No. 804, to wit:
A plain reading of Sec. 10 clearly reveals that the choice of which amount to
award an illegally dismissed overseas contract worker, i.e., whether his
salaries for the unexpired portion of his employment contract or three (3)
months' salary for every year of the unexpired term, whichever is less, comes
into play only when the employment contract concerned has a term of at
least one (1) year or more. This is evident from the words "for every year of

105

the unexpired term" which follows the words "salaries . . . for three
months". To follow petitioners' thinking that private respondent is entitled to
three (3) months salary only simply because it is the lesser amount is to
completely disregard and overlook some words used in the statute while giving
effect to some. This is contrary to the well-established rule in legal
hermeneutics that in interpreting a statute, care should be taken that every part
or word thereof be given effect since the law-making body is presumed to
know the meaning of the words employed in the statute and to have used them
advisedly. Ut res magis valeat quam pereat. 80 (Emphasis supplied)

Talidano
Falcon 87
Univan
CA 88

Under Section 10 of R.A. No. 8042, a worker dismissed from overseas

employment without just, valid or authorized cause is entitled to his salary for
the unexpired portion of his employment contract or for three (3) months for
every year of the unexpired term, whichever is less. SATDEI

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission (Third
Division, December 1998), 83 which involved an OFW (therein respondent Erlinda Osdana) who was
originally granted a 12-month contract, which was deemed renewed for another 12 months. After
serving for one year and seven-and-a-half months, respondent Osdana was illegally dismissed, and the
Court awarded her salaries for the entire unexpired portion of four and one-half months of her contract.
The Marsaman interpretation of Section 10 (5) has since been adopted in the following cases:

Bahia 9
Shipping
Reynaldo
Chua 85
Centennial 9
Transmarine
dela Cruz l 86

v. 6

months 2

months 8

months 4

months 4
months 4

months 5

months 4
months 4

months 5

months 3
months more

Olarte
v. 12
Nayona 91 9 days
JSS
v. 12
Ferrer 92 24 days

Applied
Computation
Monetary
months
months
v.

months
v.

than

months 21
months 16

Phil.
Employ 12
v.
et al. 94 ECDHIc
years 26
v. 4
each

months 9

months 3

months

months 9

months 3

months

than

2 10

2 more

days 11

days 23

or

months
months 2

months
days 3
year

Athenna 1
year,
10 1
month 1
Manpower
v. months months
Villanos 96 and
28
days 28
contract

less

months

and 2

months 10

months 3

months

days 11

Pentagon v. 12 months 9 months

Adelantar 93 7 days 23 days 23 days

Flourish 2
Maritime
Almanzor 95
contract

In the case at bar, the unexpired portion of private respondent's employment

contract is eight (8) months. Private respondent should therefore be paid his
basic salary corresponding to three (3) months or a total of SR3,600. 82

Skippers
Maguad 84

v. 12

PCL
v. 12
months more
NLRC 90 months months

Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on
Section 10 (5). One was Asian Center for Career and Employment System and Services v. National
Labor Relations Commission (Second Division, October 1998), 81 which involved an OFW who was
awarded a two-year employment contract, but was dismissed after working for one year and two
months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary
covering eight months, the unexpired portion of his contract. On appeal, the Court reduced the award to
SR3,600.00 equivalent to his three months' salary, this being the lesser value, to wit:

of Unexpired Period
the

months 3

Oriental
v. 12
CA 89 months

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract,
but was awarded his salaries for the remaining 8 months and 6 days of his contract.

Case
Title Contract Period
Period Service Period in
of
the
Award

v. 12

93

months
months

and 3

months

and 3

months

and 2

months

and

months Unexpired
Paramio, portion

and 6
months
months

or
for
of

year,
96
months
and 3
months
days each
year

or
for
of

As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first
category includes OFWs with fixed-period employment contracts of less than one year; in case of illegal
dismissal, they are entitled to their salaries for the entire unexpired portion of their contract. The second
category consists of OFWs with fixed-period employment contracts of one year or more; in case of
illegal dismissal, they are entitled to monetary award equivalent to only 3 months of the unexpired
portion of their contracts. IaSCTE
The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent
OFW worked for only 2 months out of his 6-month contract, but was awarded his salaries for the
remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who had also worked for
about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of the
unexpired portion of their contracts. Even the OFWs involved in Talidano and Univan who had worked
for a longer period of 3 months out of their 12-month contracts before being illegally dismissed were
awarded their salaries for only 3 months.
To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an
employment contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical OFW-B
with an employment contract of 15 months with the same monthly salary rate of US$1,000.00. Both
commenced work on the same day and under the same employer, and were illegally dismissed after one
month of work. Under the subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his
salaries for the remaining 9 months of his contract, whereas OFW-B will be entitled to only
US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion of his contract, instead of

106

US$14,000.00 for the unexpired portion of 14 months of his contract, as the US$3,000.00 is the lesser
amount.
The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to
the effectivity of R.A. No. 8042 on July 14, 1995, 97 illegally dismissed OFWs, no matter how long the
period of their employment contracts, were entitled to their salaries for the entire unexpired portions of
their contracts. The matrix below speaks for itself:

Case
Title Contract Period
Period Service Period the
of
Award
ATCI
v. 2
CA, et al. 98

years 2

the
months 22

months 22

JGB
NLC 100

v. 2

years 9

months 15

months 15

months

Agoy
NLRC 101

v. 2

years 2

months 22

months 22

months

years 5

months 19

months 19

months

months 8

months

Barros
NLRC,
et al. 103
Philippine 12
Transmarine
Carilla 104

v. 12

months 4

months 6
months
v. 22

and 23
days 23

months

years 7

v. 2

months

Applied
in
Computation
Monetary

Phil. 2
Integrated
NLRC 99

EDI
NLRC,
et al. 102

days 23
v. 23

of Unexpired Period

months 8

and 5
months
days 18

months

and 5
months
days 18

and
days

and
days

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired
portions thereof, were treated alike in terms of the computation of their monetary benefits in case of
illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries
multiplied by the entire unexpired portion of their employment contracts. TaDSHC
The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of
the money claims of illegally dismissed OFWs based on their employment periods, in the
process singling out one category whose contracts have an unexpired portion of one year or more and
subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries
for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other
category from such prejudice, simply because the latter's unexpired contracts fall short of one year.
Among
OFWs
Contracts of More Than One Year

With

Employment

Upon closer examination of the terminology employed in the subject clause, the Court now has
misgivings on the accuracy of the Marsaman interpretation.

The Court notes that the subject clause "or for three (3) months for every year of the unexpired term,
whichever is less" contains the qualifying phrases "every year" and "unexpired term". By its ordinary
meaning, the word "term" means a limited or definite extent of time. 105 Corollarily, that "every year" is
but part of an "unexpired term" is significant in many ways: first, the unexpired term must be at least
one year, for if it were any shorter, there would be no occasion for such unexpired term to be measured
by every year; and second, the original term must be more than one year, for otherwise, whatever would
be the unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the
determination of when the subject clause "for three (3) months for every year of the unexpired term,
whichever is less" shall apply is not the length of the original contract period as held
in Marsaman, 106 but the length of the unexpired portion of the contract period the subject clause
applies in cases when the unexpired portion of the contract period is at least one year, which
arithmetically requires that the original contract period be more than one year. EDCIcH
Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose
contract periods are for more than one year: those who are illegally dismissed with less than one year
left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while
those who are illegally dismissed with one year or more remaining in their contracts shall be covered by
the subject clause, and their monetary benefits limited to their salaries for three months only.
To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court
assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary rate of
US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th
month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the
subject clause applies to the computation of the latter's monetary benefits. Thus, OFW-C will be
entitled, not to US$12,000.00 or the latter's total salaries for the 12 months unexpired portion of the
contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12month unexpired term of the contract. On the other hand, OFW-D is spared from the effects of the
subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be
entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired
portion.
OFWs vis--vis Local
With Fixed-Period Employment

Workers

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards
of illegally dismissed OFWs was in place. This uniform system was applicable even to local workers
with fixed-term employment. 107
The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of
Commerce (1888), 108 to wit:
Article 299. If the contracts between the merchants and their shop clerks
and employees should have been made of a fixed period, none of the
contracting parties, without the consent of the other, may withdraw from the
fulfillment of said contract until the termination of the period agreed upon.
Persons violating this clause shall be subject to indemnify the loss and damage
suffered, with the exception of the provisions contained in the following
articles.
In Reyes v. The Compaia Maritima, 109 the Court applied the foregoing provision to determine the
liability of a shipping company for the illegal discharge of its managers prior to the expiration of their
fixed-term employment. The Court therein held the shipping company liable for the salaries of its
managers for the remainderof their fixed-term employment. cAEaSC

107

There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce
which provides:
Article 605. If the contracts of the captain and members of the crew with the
agent should be for a definite period or voyage, they cannot be discharged until
the fulfillment of their contracts, except for reasons of insubordination in
serious matters, robbery, theft, habitual drunkenness, and damage caused to the
vessel or to its cargo by malice or manifest or proven negligence.
Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie, 110 in which the Court held the
shipping company liable for the salaries and subsistence allowance of its illegally dismissed employees
for the entire unexpired portion of their employment contracts.

Agency, Inc. v. Ople, 119 involving seafarers who were illegally discharged. In Teknika Skills and Trade
Services, Inc. v. National Labor Relations Commission, 120 an OFW who was illegally dismissed prior
to the expiration of her fixed-period employment contract as a baby sitter, was awarded salaries
corresponding to the unexpired portion of her contract. The Court arrived at the same ruling
in Anderson v. National Labor Relations Commission, 121 which involved a foreman hired in 1988 in
Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine months on
the job the Court awarded him salaries corresponding to 15 months, the unexpired portion of his
contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission, 122 a Filipino
working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his
12-month contract after he was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National
Labor Relations Commission, 123 an OFW whose 12-month contract was illegally cut short in the
second month was declared entitled to his salaries for the remaining 10 months of his contract.

While Article 605 has remained good law up to the present, 111 Article 299 of the Code of Commerce
was replaced by Art. 1586 of the Civil Code of 1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers hired for a
certain time and for a certain work cannot leave or be dismissed without
sufficient cause, before the fulfillment of the contract. (Emphasis supplied.)
Citing Manresa, the Court in Lemoine v. Alkan 112 read the disjunctive "or" in Article 1586 as a
conjunctive "and" so as to apply the provision to local workers who are employed for a time certain
although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia Palomar v.
Hotel de France Company. 113 And in both Lemoine and Palomar, the Court adopted the general
principle that in actions for wrongful discharge founded on Article 1586, local workers are entitled to
recover damages to the extent of the amount stipulated to be paid to them by the terms of their contract.
On the computation of the amount of such damages, the Court inAldaz v. Gay 114 held: ITDHcA
The doctrine is well-established in American jurisprudence, and nothing has
been brought to our attention to the contrary under Spanish jurisprudence, that
when an employee is wrongfully discharged it is his duty to seek other
employment of the same kind in the same community, for the purpose of
reducing the damages resulting from such wrongful discharge. However, while
this is the general rule, the burden of showing that he failed to make an effort
to secure other employment of a like nature, and that other employment of a
like nature was obtainable, is upon the defendant. When an employee is
wrongfully discharged under a contract of employment his prima facie
damage is the amount which he would be entitled to had he continued in
such employment until the termination of the period.(Howard vs. Daly, 61 N.
Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98
Mich., 43.) 115 (Emphasis supplied)
On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment:
Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3
(Contract for a Piece of Work), Chapter 3, Title VIII, Book IV. 116 Much like Article 1586 of the Civil
Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies available
to a fixed-term worker who is illegally discharged. However, it is noted that in Mackay Radio &
Telegraph Co., Inc. v. Rich, 117 the Court carried over the principles on the payment of damages
underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal
discharge of a local worker whose fixed-period employment contract was entered into in 1952, when the
new Civil Code was already in effect. 118
More significantly, the same principles were applied to cases involving overseas Filipino workers whose
fixed-term employment contracts were illegally terminated, such as in First Asian Trans & Shipping

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally
discharged were treated alike in terms of the computation of their money claims: they were uniformly
entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment
of R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed OFWs with an
unexpired portion of one year or more in their employment contract have since been differently treated
in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local
workers with fixed-term employment. DEAaIS
The Court concludes that the subject clause contains a suspect classification in that, in the
computation of the monetary benefits of fixed-term employees who are illegally discharged, it
imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their
contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The
subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.
There being a suspect classification involving a vulnerable sector protected by the Constitution, the
Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a
compelling state interest through the least restrictive means.
What constitutes compelling state interest is measured by the scale of rights and powers arrayed in
the Constitution and calibrated by history. 124 It is akin to the paramount interest of the state 125 for
which some individual liberties must give way, such as the public interest in safeguarding health or
maintaining medical standards, 126 or in maintaining access to information on matters of public
concern. 127
In the present case, the Court dug deep into the records but found no compelling state interest that the
subject clause may possibly serve.
The OSG defends the subject clause as a police power measure "designed to protect the employment of
Filipino seafarers overseas . . . . By limiting the liability to three months [sic], Filipino seafarers have
better chance of getting hired by foreign employers." The limitation also protects the interest of local
placement agencies, which otherwise may be made to shoulder millions of pesos in "termination
pay". 128
The OSG explained further:
Often, placement agencies, their liability being solidary, shoulder the payment
of money claims in the event that jurisdiction over the foreign employer is not
acquired by the court or if the foreign employer reneges on its obligation.
Hence, placement agencies that are in good faith and which fulfill their

108

obligations are unnecessarily penalized for the acts of the foreign employer. To
protect them and to promote their continued helpful contribution in
deploying Filipino migrant workers, liability for money are reduced under
Section 10 of RA 8042. IaHDcT
This measure redounds to the benefit of the migrant workers whose welfare the
government seeks to promote. The survival of legitimate placement agencies
helps [assure] the government that migrant workers are properly deployed and
are employed under decent and humane conditions. 129 (Emphasis supplied)
However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of
the state interest sought to be served by the subject clause.
The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship
of House Bill No. 14314 (HB 14314), from which the law originated;130 but the speech makes no
reference to the underlying reason for the adoption of the subject clause. That is only natural for none of
the 29 provisions in HB 14314 resembles the subject clause.
On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:
Sec. 10. Money Claims. Notwithstanding any provision of law to the
contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and decide,
within ninety (90) calendar days after the filing of the complaint, the claims
arising out of an employer-employee relationship or by virtue of the complaint,
the claim arising out of an employer-employee relationship or by virtue of any
law or contract involving Filipino workers for overseas employment including
claims for actual, moral, exemplary and other forms of damages.
The liability of the principal and the recruitment/placement agency or any and
all claims under this Section shall be joint and several.
Any compromise/amicable settlement or voluntary agreement on any money
claims exclusive of damages under this Section shall not be less than fifty
percent (50%) of such money claims: Provided, That any installment
payments, if applicable, to satisfy any such compromise or voluntary
settlement shall not be more than two (2) months. Any compromise/voluntary
agreement in violation of this paragraph shall be null and void. TaDAHE
Non-compliance with the mandatory period for resolutions of cases provided
under this Section shall subject the responsible officials to any or all of the
following penalties:
(1) The salary of any such official who fails to render his decision
or resolution within the prescribed period shall be, or caused to be,
withheld until the said official complies therewith;
(2) Suspension for not more than ninety (90) days; or
(3) Dismissal from the service with disqualification to hold any
appointive public office for five (5) years.
Provided, however, That the penalties herein provided shall be without
prejudice to any liability which any such official may have incurred under

other existing laws or rules and regulations as a consequence of violating the

provisions of this paragraph.
But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of
money claims.
A rule on the computation of money claims containing the subject clause was inserted and eventually
adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the rationale of the
subject clause in the transcripts of the "Bicameral Conference Committee (Conference Committee)
Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House
Bill No. 14314)." However, the Court finds no discernible state interest, let alone a compelling one, that
is sought to be protected or advanced by the adoption of the subject clause.
In fine, the Government has failed to discharge its burden of proving the existence of a compelling state
interest that would justify the perpetuation of the discrimination against OFWs under the subject clause.
Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment
of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale
will have to be rejected. There can never be a justification for any form of government action that
alleviates the burden of one sector, but imposes the same burden on another sector, especially when the
favored sector is composed of private businesses such as placement agencies, while the disadvantaged
sector is composed of OFWs whose protection no less than the Constitution commands. The idea that
private business interest can be elevated to the level of a compelling state interest is odious. EScIAa
Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement
agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be employed
to achieve that purpose without infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based
Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring
foreign employers who default on their contractual obligations to migrant workers and/or their
Philippine agents. These disciplinary measures range from temporary disqualification to preventive
suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of
Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring
foreign employers.
Resort to these administrative measures is undoubtedly the less restrictive means of aiding local
placement agencies in enforcing the solidary liability of their foreign principals.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of
petitioner and other OFWs to equal protection.
Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality
of the subject clause from the lone perspective that the clause directly violates state policy on labor
under Section 3, 131 Article XIII of the Constitution.
While all the provisions of the 1987 Constitution are presumed self-executing, 132 there are some which
this Court has declared not judicially enforceable, Article XIII being one, 133 particularly Section 3
thereof, the nature of which, this Court, in Agabon v. National Labor Relations Commission, 134 has
described to be not self-actuating:
Thus, the constitutional mandates of protection to labor and security of tenure
may be deemed as self-executing in the sense that these are automatically
acknowledged and observed without need for any enabling legislation.
However, to declare that the constitutional provisions are enough to guarantee

109

the full exercise of the rights embodied therein, and the realization of ideals
therein expressed, would be impractical, if not unrealistic. The espousal of
such view presents the dangerous tendency of being overbroad and
exaggerated. The guarantees of "full protection to labor" and "security of
tenure", when examined in isolation, are facially unqualified, and the broadest
interpretation possible suggests a blanket shield in favor of labor against any
form of removal regardless of circumstance. This interpretation implies an
unimpeachable right to continued employment a utopian notion, doubtless
but still hardly within the contemplation of the framers. Subsequent
legislation is still needed to define the parameters of these guaranteed rights to
ensure the protection and promotion, not only the rights of the labor sector, but
of the employers' as well. Without specific and pertinent legislation, judicial
bodies will be at a loss, formulating their own conclusion to approximate at
least the aims of the Constitution. cSCTEH

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a

source of a positive enforceable right to stave off the dismissal of an
employee for just cause owing to the failure to serve proper notice or hearing.
As manifested by several framers of the 1987 Constitution, the provisions on
social
justice
require
legislative
enactments
for
their
enforceability. 135 (Emphasis added)
Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the
violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk
opening the floodgates of litigation to every worker or union over every conceivable violation of so
broad a concept as social justice for labor.
It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual
enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges
protection through executive or legislative action and judicial recognition. Its utility is best limited to
being an impetus not just for the executive and legislative departments, but for the judiciary as well, to
protect the welfare of the working class. And it was in fact consistent with that constitutional agenda
that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko
Sentral ng Pilipinas, penned by then Associate Justice now Chief Justice Reynato S. Puno, formulated
the judicial precept that when the challenge to a statute is premised on the perpetuation of prejudice
against persons favored by the Constitution with special protection such as the working class or a
section thereof the Court may recognize the existence of a suspect classification and subject the same
to strict judicial scrutiny.
The view that the concepts of suspect classification and strict judicial scrutiny formulated inCentral
Bank Employee Association exaggerate the significance of Section 3, Article XIII is a groundless
apprehension. Central Bank applied Article XIII in conjunction with the equal protection clause. Article
XIII, by itself, without the application of the equal protection clause, has no life or force of its own as
elucidated in Agabon. aCTHDA
Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's
right to substantive due process, for it deprives him of property, consisting of monetary benefits, without
any existing valid governmental purpose. 136
The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the
entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give them a better
chance of getting hired by foreign employers. This is plain speculation. As earlier discussed, there is

nothing in the text of the law or the records of the deliberations leading to its enactment or the pleadings
of respondent that would indicate that there is an existing governmental purpose for the subject clause,
or even just a pretext of one.
The subject clause does not state or imply any definitive governmental purpose; and it is for that precise
reason that the clause violates not just petitioner's right to equal protection, but also her right to
substantive due process under Section 1, 137 Article III of the Constitution.
The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired
period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior
to the enactment of R.A. No. 8042.
On the Third Issue
Petitioner contends that his overtime and leave pay should form part of the salary basis in the
computation of his monetary award, because these are fixed benefits that have been stipulated into his
contract.
Petitioner is mistaken.
The word salaries in Section 10 (5) does not include overtime and leave pay. For seafarers like
petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of
Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other
bonuses; whereas overtime pay is compensation for all work "performed" in excess of the regular eight
hours, and holiday pay is compensation for any work "performed" on designated rest days and
holidays. SAcCIH
By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday
pay in the computation of petitioner's monetary award, unless there is evidence that he performed work
during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela Cruz, 138
However, the payment of overtime pay and leave pay should be disallowed in
light of our ruling in Cagampan v. National Labor Relations Commission, to
wit:
The rendition of overtime work and the submission of sufficient
proof that said was actually performed are conditions to be satisfied
before a seaman could be entitled to overtime pay which should be
computed on the basis of 30% of the basic monthly salary. In short,
the contract provision guarantees the right to overtime pay but the
entitlement to such benefit must first be established.
In the same vein, the claim for the day's leave pay for the unexpired
portion of the contract is unwarranted since the same is given
during the actual service of the seamen.
WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year
of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042 is
DECLARED UNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005
Resolution of the Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his
salaries for the entire unexpired portion of his employment contract consisting of nine months and 23
days computed at the rate of US$1,400.00 per month.
No costs. THacES

110

SO ORDERED.
||| (Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, [March 24, 2009], 601 PHIL 245-324)

light of the Ombudsman resolution dismissing the charges against petitioner, there is still basis for
petitioner's dismissal with forfeiture of benefits as ruled in the President's Administrative Order. DEacIT
The Supreme Court ruled that the steps taken and the subsequent dismissal of the petitioner were proper.
However, taking into account the attendant facts and circumstances, i.e., the dismissal of the charges
against petitioner before the Ombudsman, the succinct and unmistakable manifestation by the BIR that
it is no longer interested in pursuing the case and the position taken by the Solicitor General that there is
no more basis for the President's Administrative Order, the Supreme Court, in the exercise of its powers,
considered these circumstances as effective and substantive supervening events that warrant the granting
of the position.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; NOT VIOLATED WHERE
PETITIONER WAS DULY HEARD; CASE AT BAR. Petitioner was not denied the right to due
process before the PCAGC. Records show that the petitioner filed his answer and other pleadings with
respect to his alleged violation of internal revenue laws and regulations, and he attended the hearings
before the investigatory body. It is thus decisively clear that his protestation of non-observance of due
process is devoid of any factual or legal basis. EaHcDS

THIRD DIVISION
[G.R. No. 131124. March 29, 1999.]
OSMUNDO G. UMALI, petitioner, vs. EXECUTIVE SECRETARY TEOFISTO T. GUINGONA JR.,
CHAIRMAN, PRESIDENTIAL COMMISSION AGAINST GRAFT AND CORRUPTION, THE
SECRETARY OF FINANCE, AND THE COMMISSIONER OF INTERNAL REVENUE, respondents.
Domingo C. Palarca and Ramon M. Maronilla for petitioner.
The Solicitor General for public respondents.
SYNOPSIS

2. ADMINISTRATIVE LAW; PUBLIC OFFICERS; SECURITY OF TENURE; NOT VIOLATED IN

CASE AT BAR. Petitioner maintains that as a career executive service officer, he can only be
removed for cause and under the Administrative Code of 1987, loss of confidence is not one of the legal
causes or grounds for removal. Consequently, his dismissal from office on the ground of loss of
confidence violated his right of security of tenure. Neither can it be said that there was a violation of
what petitioner asserts as his security of tenure. According to petitioner, as a Regional Director of
Bureau of Internal Revenue, he is a CESO eligible entitled to security of tenure. Neither can it be said
that there was a violation of what petitioner asserts as his security of tenure. However, petitioner's claim
of CESO eligibility is anemic of evidentiary support. It was incumbent upon him to prove that he is a
CESO eligible but unfortunately, he failed to adduce sufficient evidence on the matter. His failure to do
so is fatal.
3. REMEDIAL LAW; ACTIONS; ISSUE CANNOT BE RAISED FOR FIRST TIME ON MOTION
FOR RECONSIDERATION. As regards the issue of constitutionality of the PCAGC, it was only
posed by petitioner in his motion for reconsideration before the Regional Trial Court of Makati. It was
certainly too late to raise the said issue for the first time at such late stage of the proceedings below.

Petitioner was appointed Regional Director of the Bureau of Internal Revenue. In 1994, then President
Fidel V. Ramos, received a confidential memorandum against petitioner for alleged violations of internal
revenue laws, rules and regulations. Immediately, he was placed under preventive suspension and a
complaint against him was referred to the Presidential Commission on Anti-Graft and Corruption
(PCAGC), for investigation. The PCAGC found prima facie evidence to support six (6) charges of
malfeasance, misfeasance, and nonfeasance against petitioner. Acting upon the recommendation of the
PCAGC, President Ramos issued an Administrative Order dismissing petitioner with forfeiture of
retirement and all benefits under the law. His motion for reconsideration having been denied by the
Office of the President, petitioner brought a petition for certiorari, prohibition and injunction before the
RTC of Makati which dismissed the same. The Court of Appeals likewise dismissed the petition when
its jurisdiction was invoked, hence, petitioner found its way to the Supreme Court. cdasia

4. CONSTITUTIONAL LAW; JUDICIARY; SUPREME COURT; EXERCISE OF EQUITY POWER

IN CASE AT BAR. The petition is dismissable on the ground that the issues posited by the petitioner
do not constitute a valid legal basis for overturning the finding and conclusion arrived at by the Court of
Appeals. However, taking into account the antecedent facts and circumstances aforementioned, the
Court, in the exercise of its equity powers, has decided to consider the dismissal of the charges against
petitioner before the Ombudsman, the succinct and unmistakable manifestation by the Commissioner of
the Bureau of Internal Revenue that his office is no longer interested in pursuing the case, and the
position taken by the Solicitor General, that there is no more basis for Administrative Order No. 152, as
effective and substantive supervening events that cannot be overlooked. ADaSEH

With respect to the criminal aspect of the charge under investigation before the Ombudsman, the latter
dismissed the criminal charge and accordingly all the informations against petitioner previously sent to
the Office of the City Prosecutor were recalled. The focal point of inquiry in case at bar is whether in the

PURISIMA, J p:

DECISION

At bar is a petition for review under Rule 45 of the Revised Rules of Court assailing the decision of the
Court of Appeals dated April 8, 1997, which set aside the Amended Decision dated December 13, 1995

111

of the Regional Trial Court of Makati in Civil Case No. 94-3079, and dismissed the petition for
Certiorari, Prohibition and Injunction brought by petitioner against the respondents.

on the audit conducted on the petitioner. As prayed for, petitioner and his lawyer were granted five (5)
days to file a supplemental answer.

The antecedent facts leading to the filing of the present petition are as follows:

The hearing was reset to August 30, 1994, during which the parties were given a chance to ask
clarificatory questions. Petitioner and his counsel did not ask any question on the genuineness and
authenticity of the documents attached as annexes to the Complaint. Thereafter, the parties agreed to
submit the case for resolution upon the presentation of their respective memoranda.

On October 27, 1993, petitioner Osmundo Umali was appointed Regional Director of the Bureau of
Internal Revenue by the then President Fidel V. Ramos. He was assigned in Manila, from November 29,
1993 to March 15, 1994, and in Makati, from March 16, 1994 to August 4, 1994.
On August 1, 1994, President Ramos received a confidential memorandum against the petitioner for
alleged violations of internal revenue laws, rules and regulations during his incumbency as Regional
Director, more particularly the following malfeasance, misfeasance and nonfeasance, to wit:
A. Issuance of Letters of Authority (LA's) to investigate taxpayers despite the ban on investigations as
ordered in Revenue Memorandum Order No. 31-93. In numerous cases, revenue officers whose names
appeared in the LA's as investigating officers were unaware that such LA's were issued to them. He
issued LA's to favored revenue examiners such as his Secretary, Natividad Feliciano;
B. Termination of tax cases without the submission of the required investigation reports, thus exempting
the same from examination and review;

Petitioner filed his Memorandum on September 6, 1994 while the BIR sent in its Memorandum on the
following day.
After evaluating the evidence on record, the PCAGC issued its Resolution of September 23, 1994,
finding a prima facie evidence to support six (6) of the twelve (12) charges against petitioner, to wit:

1. On the First Charge Respondent issued 176 Letters of Authority in gross disobedience to and in
violation of RMOs 31-93 and 27-94.
xxx xxx xxx

C. Terminated cases with reports were submitted directly to and approved by respondent Umali without
being reviewed by the Assessment Division, thus eliminating the check and balance mechanism
designed to guard against abuses or errors;

3. On the Third Charge There is sufficient evidence of a prima facie case of falsification of official
documents as defined in Art. 171, par. 2 and 4 of the Revised Penal Code, against the respondent for the
issuance of 9 LA's and who did not investigate the tax cases, each LA being a separate offense.

D. Unlawful issuance of LA's to taxpayers who were thereafter convinced to avail of the BIR's
compromise and abatement program under RMO's 45093 and 54-93, for which the taxpayers were
made, for a monetary consideration, to pay smaller amounts in lieu of being investigated;

xxx xxx xxx

7. On the Seventh Charge There is sufficient evidence of a prima facie case of falsification of official
documents against respondent for antedating the four LA's cited in the charge, each LA constituting a
separate offense, under Art. 171 (4) of the Revised Penal Code.

E. Despite the devolution of the authority to issue LA's from Regional Directors to the Revenue District
Officers under RMO 26-94, dated April 14, 1994, respondent Umali continued to issue antedated LA's
in absolute defiance of the aforesaid issuance, using old LA's requisitioned by him when still Regional
Director of San Pablo Region. In one instance, he issued a termination letter bearing the San Pablo
Region letterhead even when he was already Makati Regional Director; and
F. In his attempt to cover up his tracks and to muddle the real issue of his violations of the ban in the
issuance of LA's and basic revenue rules and regulations, respondent enlisted the support of other
regional directors for the purpose of questioning particularly the devolution/centralization of the
functions of the Bureau. 1
On August 2, 1994, upon receipt of the said confidential memorandum, former President Ramos
authorized the issuance of an Order for the preventive suspension of Umali and immediately referred the
Complaint against the latter to the Presidential Commission on Anti-Graft and Corruption (PCAGC), for
investigation.
Petitioner was duly informed of the charges against him. In its Order, dated August 9, 1994, the PCAGC
directed him to send in his answer, copies of his Statement of Assets and Liabilities for the past three
years (3), and Personal Data Sheet. Initial hearing was set on August 25, 1994, at 2:00 p.m., at the
PCAGC Office. On August 23, the petitioner filed his required Answer.
On August 25, 1994, petitioner appeared with his lawyer, Atty. Bienvenido Santiago before the PCAGC.
Counsel for the Commissioner of Internal Revenue submitted a Progress Report, dated August 24, 1994,

8. On the Ninth (sic) Charge There is sufficient evidence to support a prima facie case of falsification
of an official document under Art. 171(4) of the Revised Penal Code against the respondent in the tax
case of Richfield International Corp., Inc. for indicating a false date on the letter of termination he
issued to the company. There is, however, insufficient evidence against respondent in the other tax case
of Jayson Auto Supply Co.
9. On the Ninth Charge There is sufficient evidence of a prima facie case of falsification of official
documents in each of the two tax cases cited in his charge, under the provisions of Art. 171(4) of the
Revised Penal Code, as the dates of Termination Letters were false.
10. On the Tenth Charge Respondent, by his own admission, violated RMO 36-87 requiring turn over
of all properties and forms to his successor upon transfer as head of office, and RMO 27-94 requiring
the surrender of all unused old forms of Letters of Authority. The Commission noted the defiant attitude
of respondent, as expressed in his admission, towards valid and legal orders of the BIR, and his
propensity to defy and ignore such orders and regulations. 2
xxx xxx xxx
On October 6, 1994, acting upon the recommendation of the PCAGC, then President Ramos issued
Administrative Order No. 152 dismissing petitioner from the service, with forfeiture of retirement and
all benefits under the law.

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On October 24, 1994, the petitioner moved for reconsideration of his dismissal but the Office of the
President denied the motion for reconsideration on November 28, 1994.
On December 1, 1994, petitioner brought a Petition for Certiorari, Prohibition and Injunction, docketed
as Civil Case No. 94-3079 before the Regional Trial Court of Makati, alleging, among others:

On August 10, 1998, Commissioner Beethoven L. Rualo of the Bureau of Internal Revenue sent a letter
to the Solicitor General informing the latter that "the Bureau of Internal Revenue is no longer interested
in pursuing the case against Atty. Osmundo Umali" on the basis of the comment and recommendation
submitted by the Legal Department of the BIR. 4
Petitioner raised the issues:

I. That the petitioner was suspended and dismissed from the service in violation of his constitutional
right to due process of law; and

1. WHETHER ADMINISTRATIVE ORDER NO. 152 VIOLATED PETITIONER'S RIGHT TO

SECURITY OF TENURE;

II. That the constitutional right of the petitioner to security of tenure was violated by the respondents.
The case was raffled off to Branch 133 of the Regional Trial Court in Makati, which issued on
December 2, 1994, a Temporary Restraining Order, enjoining the respondents and/or their
representatives from enforcing Administrative Order No. 152, and directing the parties to observe the
status quo until further orders from the said Court.
On December 23, 1994, the said Regional Trial Court dismissed the petition. On January 10, 1995, the
petitioner presented a motion for reconsideration, this time, theorizing that the Presidential Commission
on Anti-Graft and Corruption is an unconstitutional office without jurisdiction to conduct the
investigation against him. cdt
Respondents submitted their Opposition/Comment to the Motion for Reconsideration. Then, the
petitioner filed a Motion to Inhibit Judge Inoturan on the ground that the latter was formerly a Solicitor
in the Office of the Solicitor General and could not be expected to decide the case with utmost
impartiality.
The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on December 13, 1995, handed down
an Amended Decision, granting the petition and practically reversing the original Decision.
Not satisfied with the Amended Decision of Judge Guadiz, Jr., the respondents appealed therefrom to
the Court of Appeals.
On April 8, 1997, the Ninth Division of the Court of Appeals 3 promulgated its decision, reversing the
Amended Decision of the trial court of origin, and dismissing Civil Case No. 94-3079. Petitioner's
motion for reconsideration met the same fate. It was denied on October 28, 1997.
Undaunted, petitioner found his way to this Court via the petition under scrutiny.
In the interim that the administrative and civil cases against the petitioner were pending, the criminal
aspect of such cases was referred to the Office of the Ombudsman for investigation.
On July 25, 1995, after conducting the investigation, Ombudsman Investigators Merba Waga and
Arnulfo Pelagio issued a Resolution finding a probable cause and recommending the institution in the
courts of proper jurisdiction criminal cases for Falsification of Public Documents (13 counts) and Open
Disobedience (2 counts) against the petitioner.
However, acting upon petitioner's motion for reconsideration Special Prosecution Officer II Lemuel M.
De Guzman set aside the said Resolution of July 25, 1995, and in lieu thereof, dismissed the charges
against petitioner, in the Order dated November 5, 1996, which was approved by Ombudsman Aniano
Desierto. Accordingly, all the Informations against the petitioner previously sent to the Office of the
City Prosecutor, were recalled.

2. WHETHER PETITIONER WAS DENIED DUE PROCESS IN THE ISSUANCE OF

ADMINISTRATIVE ORDER NO. 152;
3. WHETHER THE PCAGC IS A VALIDLY CONSTITUTED GOVERNMENT AGENCY AND
WHETHER PETITIONER CAN RAISE THE ISSUE OF ITS CONSTITUTIONALITY BELATEDLY
IN ITS MOTION FOR RECONSIDERATION OF THE TRIAL COURT'S DECISION; AND
5. WHETHER IN THE LIGHT OF THE OMBUDSMAN RESOLUTION DISMISSING THE
CHARGES AGAINST PETITIONER, THERE IS STILL BASIS FOR PETITIONER'S DISMISSAL
WITH FORFEITURE OF BENEFITS AS RULED IN ADMINISTRATIVE ORDER NO. 152.
Petitioner contends that as Regional Director of the Bureau of Internal Revenue he belongs to the Career
Executive Service. Although a presidential appointee under the direct authority of the President to
discipline, he is a career executive service officer (CESO) with tenurial protection, who can only be
removed for cause. In support of this theory, petitioner cited the case of Larin vs. Executive Secretary 5
where the Court held:
". . . petitioner is a presidential appointee who belongs to the career service of the Civil Service. Being a
presidential appointee, he comes under the direct disciplining authority of the President. This is in line
with the settled principle that the "power to remove is inherent in the power to appoint" conferred to the
President by Section 16, Article VII of the Constitution. . . . This power of removal, however, is not an
absolute one which accepts no reservation. It must be pointed out that petitioner is a career service
officer. . . . Specifically, Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service
Decree of the Philippines, is emphatic that career service officers and employees who enjoy security of
tenure may be removed only for any of the causes enumerated in said law. In other words, the fact that
petitioner is a presidential appointee does not give the appointing authority the license to remove him at
will or at his pleasure for it is an admitted fact that he is likewise a career service officer who under the
law is the recipient of tenurial protection, thus, may only be removed for cause and in accordance with
procedural due process."
Petitioner maintains that as a career executive service officer, he can only be removed for cause and
under the Administrative Code of 1987, 6 loss of confidence is not one of the legal causes or grounds for
removal. Consequently, his dismissal from office on the ground of loss of confidence violated his right
to security of tenure; petitioner theorized.
After a careful study, we are of the irresistible conclusion that the Court of Appeals ruled correctly on
the first three issues. To be sure, petitioner was not denied the right to due process before the PCAGC.
Records show that the petitioner filed his answer and other pleadings with respect to his alleged
violation of internal revenue laws and regulations, and he attended the hearings before the investigatory
body. It is thus decisively clear that his protestation of non-observance of due process is devoid of any
factual or legal basis.

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Neither can it be said that there was a violation of what petitioner asserts as his security of tenure.
According to petitioner, as a Regional Director of Bureau of Internal Revenue, he is a CESO eligible
entitled to security of tenure. However, petitioner's claim of CESO eligibility is anemic of evidentiary
support. It was incumbent upon him to prove that he is a CESO eligible but unfortunately, he failed to
adduce sufficient evidence on the matter. His failure to do so is fatal.
As regards the issue of constitutionality of the PCAGC, it was only posed by petitioner in his motion for
reconsideration before the Regional Trial Court of Makati. It was certainly too late to raise the said issue
for the first time at such late stage of the proceedings below.
How about the fourth issue, whether in view of the Resolution of the Ombudsman dismissing the
charges against petitioner, there still remains a basis for the latter's dismissal with forfeiture of benefits,
as directed in Administrative Order No. 152?

It is worthy to note that in the case under consideration, the administrative action against the petitioner
was taken prior to the institution of the criminal case. The charges included in Administrative Order No.
152 were based on the results of investigation conducted by the PCAGC and not on the criminal charges
before the Ombudsman.
In sum, the petition is dismissable on the ground that the issues posited by the petitioner do not
constitute a valid legal basis for overturning the finding and conclusion arrived at by the Court of
Appeals. However, taking into account the antecedent facts and circumstances aforementioned, the
Court, in the exercise of its equity powers, has decided to consider the dismissal of the charges against
petitioner before the Ombudsman, the succinct, and unmistakable manifestation by the Commissioner of
the Bureau of Internal Revenue that his office is no longer interested in pursuing the case, and the
position taken by the Solicitor General, 7 that there is no more basis for Administrative Order No. 152,
as effective and substantive supervening events that cannot be overlooked.
WHEREFORE, in light of the foregoing effective and substantive supervening events, and in the
exercise of its equity powers, the Court hereby GRANTS the petition. Accordingly, Administrative
Order No. 152 is considered LIFTED, and petitioner can be allowed to retire with full benefits. No
pronouncement as to costs.

EN BANC
[G.R. No. 108399. July 31, 1997.]

SO ORDERED.
||| (Umali v. Guingona, Jr., G.R. No. 131124, [March 29, 1999], 365 PHIL 77-88)

RAFAEL M. ALUNAN III, in his capacity as Secretary of the Department

of Interior and Local Government (DILG), the BOARD OF ELECTION
SUPERVISORS composed of Atty. RUBEN M. RAMIREZ, Atty.
RAFAELITO GARAYBLAS, and Atty. ENRIQUE C. ROA,
GUILLERMINA RUSTIA, in her capacity as Director of the Barangay
Bureau, City Treasurer Atty. ANTONIO ACEBEDO, Budget Officer
EUFEMIA DOMINGUEZ, all of the City Government of
Manila, petitioners, vs. ROBERT MIRASOL, NORMAN NOEL T.
SANGUYA, ROBERT DE JOYA, ARNEL R. LORENZO, MARY
GRACE ARIAS, RAQUEL L. DOMINGUEZ, LOURDES ASENCIO,
FERDINAND ROXAS, MA. ALBERTINA RICAFORT and BALAIS M.
LOURICH and the HONORABLE WILFREDO D. REYES, Presiding
Judge of the Regional Trial Court, Branch 36, Metro Manila, respondents.

The Solicitor General for petitioners.

114

Pedro Q. Quadra for private respondents.

SYNOPSIS
The Local Government Code, which took effect on January 1, 1992, provides, in Section 532(a), that the
first election for the Sangguniang Kabataan (SK) shall be held thirty days after the next local election.
The first local election under the Code was held on May 11, 1992.
Accordingly, the Commission on Elections issued Resolution No. 2499, providing guidelines for the
holding of the general election for the SK on September 30, 1992. The guidelines placed the SK
elections under the direct control and supervision of the DILG.
The DILG, however, through then Secretary Rafael M. Alunan III, issued a letter-resolution exempting
the City of Manila from holding election for the SK on the ground that the election previously held on
May 26, 1990 was to be considered the first under the newly enacted Local Government Code.
Private respondents filed a petition for certiorari and mandamus in the RTC of Manila to set aside the
resolution of the DILG, arguing that the Secretary of the DILG had no power to amend the resolutions
of the COMELEC calling for general elections of SKs and that the DILG resolution in question denied
them the equal protection of the laws.
Petitioners maintain that the Secretary of the DILG had authority to determine whether the City of
Manila came within the exception clause of Section 532(d) so as to be exempt from holding the election
on December 4, 1992. COMELEC's placing the SK election under the direct control and supervision of
the DILG did not contravene Art. IX, C, Sec. 2(1) of the Constitution which provides that the
COMELEC shall have the power to "enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall." Elections for SK officers are not
subject to the supervision of the COMELEC in the same way that contests involving elections of SK
officials do not fall within the jurisdiction of the COMELEC.
Section 532(d) may thus be deemed to be a curative law. Curative laws, which in essence are
retrospective in effect, are enacted to validate acts done which otherwise would be invalid under
existing laws, by considering them as having complied with the existing laws. Such laws are recognized
in this jurisdiction.
The decision of the RTC of Manila, Branch 36, is REVERSED.

SYLLABUS
1. REMEDIAL LAW; ACTIONS; MOOT AND ACADEMIC; RESOLUTION OF ISSUE STILL
PROPER WHERE IT IS CAPABLE OF REPETITION, YET EVADING REVIEW. The preliminary
question is whether the holding of the second elections on May 13, 1996 rendered this case moot and
academic. There are two questions raised in this case. The first is whether the Secretary of Interior and
Local Government can "exempt" a local government unit from holding elections for SK officers on
December 4, 1992 and the second is whether the COMELEC can provide that "the Department of
Interior and Local Government shall have direct control and supervision over the election of
sangguniang kabataan with the technical assistance by the Commission on Elections." We hold that this
case is not moot and that it is in fact necessary to decide the issues raised by the parties. For one thing,
doubt may be cast on the validity of the acts of those elected in the May 26, 1990 KB elections in

Manila because this Court enjoined the enforcement of the decision of the trial court and these officers
continued in office until May 13, 1996. For another, this case comes within the rule that courts will
decide a question otherwise moot and academic if it is "capable of repetition, yet evading review." For
the question whether the COMELEC can validly vest in the DILG the control and supervision of SK
elections is likely to arise in connection with every SK election and yet the question may not be decided
before the date of such elections.
2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; RESOLUTION NO. 2499
PLACING SANGGUNIANG KABATAAN ELECTIONS UNDER DIRECT CONTROL AND
SUPERVISION OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
CONSTITUTIONAL; CONTESTS INVOLVING ELECTIONS OF SANGGUNIANG OFFICIALS DO
NOT FALL WITHIN COMMISSION ON ELECTIONS JURISDICTION. As already stated, by 4
of Resolution No. 2499, the COMELEC placed the SK elections under the direct control and
supervision of the DILG. Contrary to respondents' contention, this did not contravene Art. IX, C 2(1)
of the Constitution which provides that the COMELEC shall have the power to "enforce and administer
all laws and regulations relative to the conduct of an election, plebiscite initiative, referendum, and
recall." Elections for SK officers are not subject to the supervision of the COMELEC in the same way
that, as we have recently held, contests involving elections of SK officials do not fall within the
jurisdiction of the COMELEC.
3. ID.; ID.; ID.; ID.; SANGGUNIANG KABATAAN CHAIRMAN NOT AN ELECTED BARANGAY
OFFICIAL. Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2,
Article IX-C of the Constitution on the COMELEC's exclusive appellate jurisdiction over contests
involving elective barangay officials refer to the elective barangay officials under the pertinent laws in
force at the time the Omnibus Election Code was enacted and upon the ratification of the Constitution.
That law was B.P. Blg. 337, otherwise known as the Local Government Code, and the elective barangay
officials referred to were the punong barangay and the six sangguniang bayan members. In the light of
the foregoing, it is indisputable that contests involving elections of SK (formerly KB) officials do not
fall within Section 252 of the Omnibus Election Code and paragraph 2, Section 2, Article IX-C of the
Constitution and that no law in effect prior to the ratification of the Constitution had made the SK
chairman an elective barangay official. His being an ex-officio member of the sangguniang barangay
does not make him one for the law specifically provides who are its elective members.
4. ID.; ID.; ID.; INCLUSION OF BARANGAYS IN SANGGUNIANG KABATAAN ELECTIONS, TO
BE DETERMINED BY DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT. It is
contended that, in its resolution in question, the COMELEC did not name the barangays which, because
they had conducted kabataang barangay elections between January 1, 1988 and January 1, 1992, were
not included in the SK elections to be held on December 4, 1992. That these barangays were precisely to
be determined by the DILG is, however, fairly inferable from the authority given to the DILG to
supervise the conduct of the elections. Since 532(d) provided for kabataang barangay officials whose
term of office was extended beyond 1992, the authority to supervise the conduct of elections in that year
must necessarily be deemed to include the authority to determine which kabataang barangay would not
be included in the 1992 elections. The authority granted was nothing more than the ascertainment of a
fact, namely, whether between January 1, 1988 and January 1, 1992 elections had been held in a given
kabataang barangay. If elections had been conducted, then no new elections had to be held on December
4, 1992 since by virtue of 532(d) the term of office of the kabataang barangay officials so elected was
"extended correspondingly to coincide with the term of office of those elected under [the Local
Government Code of 1991]." In doing this, the Secretary of Interior and Local Government was to act
merely as the agent of the legislative department, to determine and declare the event upon which its
expressed will was to take effect. There was no undue delegation of legislative power but only of the
discretion as to the execution of a law. That this is constitutionally permissible is the teaching of our
cases.

115

5. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; SECTION 532 (d) PROVIDING

THAT THE KABATAANG BARANGAY ELECTIONS CONDUCTED BETWEEN JANUARY 1,
1988 AND JANUARY 1, 1992 SHALL BE CONSIDERED AS THE FIRST ELECTIONS PROVIDED
FOR IN THIS CODE, LEGAL AND BINDING, A CURATIVE LAW. Petitioners sought this review
on certiorari. They insist that the City of Manila, having already conducted elections for the KB on May
26, 1990, was exempted from holding elections on December 4, 1992. In support of their contention,
they cite 532(d) of the Local Government Code of 1991, which provides that: ". . . elections for the
kabataang barangay conducted under Batas Pambansa Blg. 337 at any time between January 1, 1988
and January 1, 1992 shall be considered as the first elections provided for in this Code. The term of
office of the kabataang barangay officials elected within the said period shall be extended
correspondingly to coincide with the term of office of those elected under this Code." It was precisely to
foreclose any question regarding the validity of KB elections held in the aftermath of the EDSA
revolution and upon the effectivity of the new Local Government Code that the exception clause of
532(d) was inserted. Section 532(d) may thus be deemed to be a curative law. Curative laws, which in
essence are retrospective in effect, are enacted to validate acts done which otherwise would be invalid
under existing laws, by considering them as having complied with the existing laws. Such laws are
recognized in this jurisdiction.

6. CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; EXEMPTION

OF BARANGAYS IN MANILA FROM HOLDING ELECTION, NOT DISCRIMINATION. It is
finally contended that the exemption of the barangays of the City of Manila from the requirement to
hold elections for SK officers on December 4, 1992 would deny the youth voters in those barangays of
the equal protection of laws. Respondents claim that only in the barangays in the City of Manila, which
then numbered 897, were elections for SK not held in 1992 on the ground that between January 1, 1988
and January 1, 1992 there had already been SK elections held, when, according to petitioners own
evidence, during that period, SK elections had actually been conducted in 5,000 barangays. Whether this
claim is true cannot be ascertained from the records of this case. Merely showing that there were 5,000
barangays which similarly held KB elections between January 1, 1988 and January 1, 1992 does not
prove that despite that fact these same barangays were permitted to hold elections on December 4, 1992.
For one thing, according to the Manila Bulletin issue of November 18, 1992 (p. 9), 568 barangays in the
Province of Bulacan did not have SK elections on December 4, 1992 either, because they already had
elections between January 1, 1988 and January 1, 1992. For another, even assuming that only barangays
in Manila were not permitted to hold SK elections on December 4, 1992 while the rest of the 5,000
barangays were allowed even if KB elections had already been held there before, this fact does not give
the youth voters in the 897 Manila barangays ground for complaint because what the other barangays
did was contrary to law. There is no discrimination here.

DECISION

MENDOZA, J p:
This is a petition for review on certiorari of the decision dated January 19, 1993 of the Regional Trial
Court of Manila (Branch 36), 1 nullifying an order of the Department of Interior and Local Government
(DILG), which in effect cancelled the general elections for the Sangguniang Kabataan (SK) slated on
December 4, 1992 in the City of Manila, on the ground that the elections previously held on May 26,

1990 served the purpose of the first elections for the SK under the Local Government Code of 1991
(R.A. No. 7160).
Section 423 of the Code provides for a SK in every barangay, to be composed of a chairman, seven (7)
members, a secretary, and a treasurer. Section 532(a) provides that the first elections for the SK shall be
held thirty (30) days after the next local elections. The Code took effect on January 1, 1992.
The first local elections under the Code were held on May 11, 1992. Accordingly, on August 27, 1992,
the Commission on Elections issued Resolution No. 2499, providing guidelines for the holding of the
general elections for the SK on September 30, 1992. The guidelines placed the SK elections under the
direct control and supervision of the DILG, with the technical assistance of the COMELEC. 2 After two
postponements, the elections were finally scheduled on December 4, 1992.
Accordingly, registration in the six districts of Manila was conducted. A total of 152,363 youngsters,
aged 15 to 21 years old, registered, 15,749 of them filing certificates of candidacies. The City Council
passed the necessary appropriations for the elections.
On September 18, 1992, however, the DILG, through then Secretary Rafael M. Alunan III, issued a
letter-resolution "exempting" the City of Manila from holding elections for the SK on the ground that
the elections previously held on May 26, 1990 were to be considered the first under the newlyenacted Local Government Code. The DILG acted on a letter of Joshue R. Santiago, acting president of
the KB City Federation of Manila and a member of City Council of Manila, which called attention to
the fact that in the City of Manila elections for the Kabataang Barangay (the precursor of the
Sangguniang Kabataan) had previously been held on May 26, 1990. In its resolution, the DILG stated:
[A] close examination of . . . RA 7160 would readily reveal the intention of the
legislature to exempt from the forthcoming Sangguniang Kabataan elections
those kabataang barangay chapters which may have conducted their elections
within the period of January 1, 1988 and January 1, 1992 under BP 337.
Manifestly the term of office of those elected KB officials have been
correspondingly extended to coincide with the term of office of those who may
be elected under RA 7160.
On November 27, 1992 private respondents, claiming to represent the 24,000 members of the Katipunan
ng Kabataan, filed a petition for certiorari and mandamus in the RTC of Manila to set aside the
resolution of the DILG. They argued that petitioner Secretary of Interior and Local Government had no
power to amend the resolutions of the COMELEC calling for general elections for SKs and that the
DILG resolution in question denied them the equal protection of the laws.
On November 27, 1992, the trial court, through Executive Judge, now COMELEC Chairman, Bernardo
P. Pardo, issued an injunction, ordering petitioners "to desist from implementing the order of the
respondent Secretary dated September 18, 1992, . . . until further orders of the Court." On the same day,
he ordered petitioners "to perform the specified pre-election activities in order to implement Resolution
No. 2499 dated August 27, 1992 of the Commission on Elections providing for the holding of a general
election of the Sangguniang Kabataan on December 4, 1992 simultaneously in every barangay
throughout the country." cda
The case was subsequently reraffled to Branch 36 of the same court. On January 19, 1993, the new
judge, Hon. Wilfredo D. Reyes, rendered a decision, holding that (1) the DILG had no power to
"exempt" the City of Manila from holding SK elections on December 4, 1992 because under Art. IX, C,
2(1) of the Constitution the power to enforce and administer "all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall" is vested solely in the COMELEC;
(2) the COMELEC had already in effect determined that there had been no previous elections for KB by
calling for general elections for SK officers in every barangay without exception; and (3) the

116

"exemption" of the City of Manila was violative of the equal protection clause of the Constitution
because, according to the DILG's records, in 5,000 barangays KB elections were held between January
1, 1988 and January 1, 1992 but only in the City of Manila, where there were 897 barangays, was there
no elections held on December 4, 1992.
Petitioners sought this review on certiorari. They insist that the City of Manila, having already
conducted elections for the KB on May 26, 1990, was exempted from holding elections on December 4,
1992. In support of their contention, they cite 532(d) of the Local Government Code of 1991, which
provides that:
All seats reserved for the pederasyon ng mga sangguniang kabataan in the
different sanggunians shall be deemed vacant until such time that the
sangguniang kabataan chairmen shall have been elected and the respective
pederasyon presidents have been selected: Provided, That, elections for the
kabataang barangay conducted under Batas Pambansa Blg. 337 at any time
between January 1, 1988 and January 1, 1992 shall be considered as the first
elections provided for in this Code. The term of office of the kabataang
barangay officials elected within the said period shall be extended
correspondingly to coincide with the term of office of those elected under this
Code. (emphasis added)
They maintain that the Secretary of the DILG had authority to determine whether the City of
Manila came within the exception clause of 532(d) so as to be exempt from holding the elections
on December 4, 1992.
The preliminary question is whether the holding of the second elections on May 13, 1996 3 rendered
this case moot and academic. There are two questions raised in this case. The first is whether the
Secretary of Interior and Local Government can "exempt" a local government unit from holding
elections for SK officers on December 4, 1992 and the second is whether the COMELEC can provide
that "the Department of Interior and Local Government shall have direct control and supervision over
the election of sangguniang kabataan with the technical assistance by the Commission on Elections."
We hold that this case is not moot and that it is in fact necessary to decide the issues raised by the
parties. For one thing, doubt may be cast on the validity of the acts of those elected in the May 26, 1990
KB elections in Manila because this Court enjoined the enforcement of the decision of the trial court
and these officers continued in office until May 13, 1996. For another, this case comes within the rule
that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet
evading review." 4 For the question whether the COMELEC can validly vest in the DILG the control
and supervision of SK elections is likely to arise in connection with every SK election and yet the
question may not be decided before the date of such elections.
In the Southern Pacific Terminal case, where the rule was first articulated, appellants were ordered by
the Interstate Commerce Commission to cease and desist from granting a shipper what the ICC
perceived to be preferences and advantages with respect to wharfage charges. The cease and desist order
was for a period of about two years, from September 1, 1908 (subsequently extended to November 15),
but the U.S. Supreme Court had not been able to hand down its decision by the time the cease and desist
order expired. The case was decided only on February 20, 1911, more than two years after the order had
expired. Hence, it was contended that the case had thereby become moot and the appeal should be
dismissed. In rejecting this contention, the Court held:
The question involved in the orders of the Interstate Commerce Commission
are usually continuing (as are manifestly those in the case at bar), and these
considerations ought not to be, as they might be, defeated, by short-term
orders, capable of repetition, yet evading review, and at one time the

government, and at another time the carriers, have their rights determined by
the Commission without a chance of redress. 5

In Roe v. Wade, 6 petitioner, a pregnant woman, brought suit in 1970 challenging anti-abortion statutes
of Texas and Georgia on the ground that she had a constitutional right to terminate her pregnancy at
least within the first trimester. The case was not decided until 1973 when she was no longer pregnant.
But the U.S. Supreme Court refused to dismiss the case as moot. It was explained: "[W]hen, as here,
pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short
that the pregnancy will come to term before the usual appellate process is complete. If that termination
makes a case moot, pregnancy litigation seldom will survive. Our laws should not be that rigid.
Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be 'capable of
repetition, yet evading review.'" 7
We thus reach the merits of the questions raised in this case. The first question is whether then DILG
Secretary Rafael M. Alunan III had authority to determine whether under 532(d) of the Local
Government Code, the City of Manila was required to hold its first elections for SK. As already stated,
petitioners sustain the affirmative side of the proposition. On the other hand, respondents argue that this
is a power which Art. IX, C, 2(1) of the Constitution vests in the COMELEC. Respondents further
argue that, by mandating that elections for the SK be held on December 4, 1992 "in every barangay," the
COMELEC in effect determined that there had been no elections for the KB previously held in the City
of Manila.
We find the petition to be meritorious.
First. As already stated, by 4 of Resolution No. 2499, the COMELEC placed the SK elections under
the direct control and supervision of the DILG. Contrary to respondents' contention, this did not
contravene Art. IX, C, 2(1) of the Constitution which provides that the COMELEC shall have the
power to "enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall." Elections for SK officers are not subject to the supervision
of the COMELEC in the same way that, as we have recently held, contests involving elections of SK
officials do not fall within the jurisdiction of the COMELEC. In Mercado v.Board of Election
Supervisors, 8 it was contended that cdtai
COMELEC Resolution No. 2499 is null and void because: (a) it prescribes a
separate set of rules for the election of the SK Chairman different from and
inconsistent with that set forth in the Omnibus Election Code, thereby
contravening Section 2, Article 1 of the said Code which explicitly provides
that "it shall govern all elections of public officers"; and, (b) it constitutes a
total, absolute, and complete abdication by the COMELEC of its
constitutionally and statutorily mandated duty to enforce and administer all
election laws as provided for in Section 2(1), Article IX-C of the Constitution;
Section 52, Article VIII of the Omnibus Election Code; and Section 2, Chapter
1, Subtitle C, Title 1, Book V of the 1987 Administrative Code. 9
Rejecting this contention, this Court, through Justice Davide, held:
Section 252 of the Omnibus Election Code and that portion of paragraph (2),
Section 2, Article IX-C of the Constitution on the COMELEC's exclusive
appellate jurisdiction over contests involving elective barangay officials refer
to the elective barangay officials under the pertinent laws in force at the time
the Omnibus Election Code was enacted and upon the ratification of the
Constitution. That law was B.P. Blg. 337, otherwise known as the Local
Government Code, and the elective barangay officials referred to were the

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punong barangay and the six sangguniang bayan members. They were to be
elected by those qualified to exercise the right of suffrage. They are also the
same officers referred to by the provisions of the Omnibus Election Code of
the Philippines on election of barangay officials. Metropolitan and municipal
trial courts had exclusive original jurisdiction over contests relating to their
election. The decisions of these courts were appealable to the Regional Trial
Courts.

legislative department, to determine and declare the event upon which its expressed will was to take
effect. 11 There was no undue delegation of legislative power but only of the discretion as to the
execution of a law. That this is constitutionally permissible is the teaching of our cases. 12

xxx xxx xxx

The 1990 elections for the Kabataang Barangay were called by then Manila Mayor Gemiliano C. Lopez,
Jr., who in his Executive Order No. 21 dated April 25, 1990 stated:

In the light of the foregoing, it is indisputable that contests involving elections

of SK (formerly KB) officials do not fall within Section 252 of the Omnibus
Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and
that no law in effect prior to the ratification of the Constitution had made the
SK chairman an elective barangay official. His being an ex-officio member of
the sangguniang barangay does not make him one for the law specifically
provides who are its elective members, viz., the punong barangay and the
seven regular sangguniang barangay members who are elected at large by
those who are qualified to exercise the right of suffrage under Article V of the
Constitution and who are duly registered voters of the barangay. 10
The choice of the DILG for the task in question was appropriate and was in line with the legislative
policy evident in several statutes. Thus, P.D. No. 684 (April 15, 1975), in creating Kabataang Barangays
in every barangay throughout the country, provided in 6 that the "Secretary of Local Government and
Community Development shall promulgate such rules and regulations as may be deemed necessary to
effectively implement the provisions of this Decree." Again, in 1985 Proclamation No. 2421 of the
President of the Philippines, in calling for the general elections of the Kabataang Barangay on July 1314, 1985, tasked the then Ministry of Local Government, the Ministry of Education, Culture and Sports,
and the Commission on Elections to assist the Kabataang Barangay in the conduct of the elections. On
the other hand, in a Memorandum Circular dated March 7, 1988, President Corazon C. Aquino directed
the Secretary of Local Government to issue the necessary rules and regulations for effecting the
representation of the Kabataang Barangay, among other sectors, in the legislative bodies of the local
government units.

Third. Respondents claim, however, that the May 26, 1990 KB elections in Manila were void because
(a) they were called at the instance of then Mayor Gemiliano C. Lopez who did not have authority to do
so and (b) it was not held under COMELEC supervision.

WHEREAS, the Kabataang Barangay as an organization provided for

under Batas Pambansa Bilang 337, has been practically dormant since the
advent of the present national administration;
WHEREAS, there is an urgent need to involve the youth in the affairs and
undertakings of the government to ensure the participation of all sectors of our
population in the task of nation building;
WHEREAS, the last elections for the Kabataang Barangay officers were held
in November 1985 yet, which is over their three years term of office;
WHEREAS, most of the present crop of KB officers are way past the age limit
provided for under the law;
xxx xxx xxx
The elections were actually held on May 26, 1990 in the 897 barangays of Manila. Later, on June 30,
1990, KB City Federation elections were conducted.
It was precisely to foreclose any question regarding the validity of KB elections held in the aftermath of
the EDSA revolution and upon the effectivity of the new Local Government Code that the exception
clause of 532(d) was inserted. The proceedings of the Bicameral Conference Committee which drafted
the Code show the following: 13

The role of the COMELEC in the 1992 elections for SK officers was by no means inconsequential.
DILG supervision was to be exercised within the framework of detailed and comprehensive rules
embodied in Resolution No. 2499 of the COMELEC. What was left to the DILG to perform was the
enforcement of the rules.

CHAIRMAN DE PEDRO: Isa-cite na lang ko ano iyong title o chapter o

section, ha!

Second. It is contended that, in its resolution in question, the COMELEC did not name the barangays
which, because they had conducted kabataang barangay elections between January 1, 1988 and January
1, 1992, were not included in the SK elections to be held on December 4, 1992. That these barangays
were precisely to be determined by the DILG is, however, fairly inferable from the authority given to
the DILG to supervise the conduct of the elections. Since 532(d) provided for kabataang barangay
officials whose term of office was extended beyond 1992, the authority to supervise the conduct of
elections in that year must necessarily be deemed to include the authority to determine which kabataang
barangay would not be included in the 1992 elections.

Page 436, lines 13 to 14 delete within eighteen months prior to December 31,
1990, and in lieu thereof, insert from 1988 up to the effectivity of the Code.
The rationale. . . .

The authority granted was nothing more than the ascertainment of a fact, namely, whether between
January 1, 1988 and January 1, 1992 elections had been held in a given kabataang barangay. If elections
had been conducted, then no new elections had to be held on December 4, 1992 since by virtue of
532(d) the term of office of the kabataang barangay officials so elected was "extended correspondingly
to coincide with the term of office of those elected under [the Local Government Code of 1991]." In
doing this, the Secretary of Interior and Local Government was to act merely as the agent of the

HON. LINA: . . .

CHAIRMAN DE PEDRO: How should it be read?

HON. LINA: It will read as follows: "Provided however, that the Local
Government Units which have conducted elections for the Kabataang
Barangay as provided for, inBatas Pambansa Bilang 337, up to the effectivity. .
. ."
CHAIRMAN DE PEDRO: So, any deletion from the word "within," ha, up
to. . . .

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HON. LINA: Remove the words, the phrase, "within eighteen months prior to
December 31, 1990, and insert from 1988 up to the effectivity of this Code."
CHAIRMAN DE PEDRO: From?
HON. LINA: From 1988 up to the effectivity of this Code. Kasi meron nang
mga election, eh, na ginawa, eh. There are five thousand barangays, based on
the record of the DILG, out of forty thousand, imagine that, na nag-conduct na
ng election nila based on the KB Constitution and By-Laws, and they're sitting
already, now if we do not recognize that, mag[ka]karoon sila ng question.
CHAIRMAN DE PEDRO: Accepted, Mr. Chairman.
Section 532(d) may thus be deemed to be a curative law. Curative laws, which in essence are
retrospective in effect, are enacted to validate acts done which otherwise would be invalid under
existing laws, by considering them as having complied with the existing laws. Such laws are recognized
in this jurisdiction. 14
Fourth. It is finally contended that the exemption of the barangays of the City of Manila from the
requirement to hold elections for SK officers on December 4, 1992 would deny the youth voters in those
barangays of the equal protection of laws. Respondents claim that only in the barangays in the City of
Manila, which then numbered 897, were elections for SK not held in 1992 on the ground that between
January 1, 1988 and January 1, 1992 there had already been SK elections held, when, according to
petitioners' own evidence, during that period, SK elections had actually been conducted in 5,000
barangays.
Whether this claim is true cannot be ascertained from the records of this case. Merely showing that there
were 5,000 barangays which similarly held KB elections between January 1, 1988 and January 1, 1992
does not prove that despite that fact these same barangays were permitted to hold elections on December
4, 1992. For one thing, according to the Manila Bulletin issue of November 18, 1992 (p. 9), 568
barangays in the Province of Bulacan did not have SK elections on December 4, 1992 either, because
they already had elections between January 1, 1988 and January 1, 1992. For another, even assuming
that only barangays in Manila were not permitted to hold SK elections on December 4, 1992 while the
rest of the 5,000 barangays were allowed even if KB elections had already been held there before, this
fact does not give the youth voters in the 897 Manila barangays ground for complaint because what the
other barangays did was contrary to law. There is no discrimination here. cdasia
In People v. Vera 15 this Court struck down the Probation Law because it permitted unequal application
of its benefits by making its applicability depend on the decision of provincial governments to
appropriate or not to appropriate funds for the salaries of probation officers, with the result that those
not disposed to allow the benefits of probations to be enjoyed by their inhabitants could simply omit to
provide for the salaries of probation officers. The difference between that case and the one at bar lies in
the fact that what youth voters in the other barangays might have been allowed was not a right which
was denied to youth voters in Manila. If those barangays were not entitled to have SK elections on
December 4, 1992 but nevertheless were allowed to have such elections, that fact did not mean those in
Manila should similarly have been allowed to conduct elections on December 4, 1992 because the fact
was that they already had their own, just two years before on May 26, 1990. Respondents' equal
protection argument violates the dictum that one wrong does not make another wrong right.
WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 36 is REVERSED and the
case filed against petitioner by private respondents is DISMISSED.
SO ORDERED.
||| (Alunan III v. Mirasol, G.R. No. 108399, [July 31, 1997], 342 PHIL 467-484)

EN BANC
[G.R. No. 120193. March 6, 1996.]
LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and
JOSEPH EVANGELISTA, respondents.

Valdez Sales & Associates for petitioner.

The Solicitor General for public respondent.
Brillantes (NACHURA) Navarro Jumamil Arcilla & Bello Law Office for private respondent.

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SYLLABUS
1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; AWARD OF PROTEST EXPENSES
AND ATTORNEY'S FEES; WITHOUT BASIS; CASE AT BAR. We find respondent COMELEC's
reasoning in awarding the damages in question to be fatally flawed. The COMELEC found the election
protest filed by the petitioner to be clearly unfounded because its own appreciation of the contested
ballots yielded results contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a
reasonable observation not without basis, it is nonetheless fallacious to conclude a malicious intention
on the part of petitioner to molest private respondent on the basis of what respondent COMELEC
perceived as an erroneous ruling of the trial court. In other words, the actuations of the trial court, after
the filing of a case before it, are its own, and any alleged error on its part does not, in the absence of
clear proof, make the suit "clearly unfounded" for which the complainant ought to be penalized. Insofar
as the award of protest expenses and attorney's fees are concerned, therefore we find them to have been
awarded by respondent COMELEC without basis, the election protest not having been a clearly
unfounded one under the aforementioned circumstances.
2. ID.; ID.; TRIAL COURT'S ORDER GRANTING EXECUTION OF JUDGMENT PENDING
APPEAL; WARRANTED AND JUSTIFIED BY THE CIRCUMSTANCES IN CASE AT BAR.
Respondent COMELEC also found the order granting execution of judgment pending appeal to be
defective because of alleged non-compliance with the requirement that there be a good and special
reason to justify execution pending appeal. We, however, find that the trial court acted judiciously in the
exercise of its prerogatives under the law in issuing the order granting execution pending appeal. First, it
should be noted that the applicability of the provisions of the Rules of Court, relating to execution
pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de Jesus (206 SCRA
779) that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order
executions pending appeal upon good reasons stated in a special order, may be made to apply by
analogy or suppletorily to election contests decided by them." It is not disputed that petitioner filed a
bond in the amount of P500,000.00 as required under the Rules of Court. It is also now a settled rule
that "as much recognition should be given to the value of the decision of a judicial body as a basis for
the right to assume office as that given by law to the proclamation made by the Board of Canvassers." ".
. . Why should the proclamation by the board of canvassers suffice as basis of the right to assume office,
subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed . .
. the board of canvassers is composed of persons who are less technically prepared to make an accurate
appreciation of the ballots, apart from their being more apt to yield to extraneous considerations . . . the
board must act summarily, practically racing against time, while, on the other hand, the judge has the
benefit of all the evidence the parties can offer and of admittedly better technical preparation and
background, apart from his being allowed ample time for conscientious study and mature deliberation
before rendering judgment . . . ." Without evaluating the merits of the trial court's actual appreciation of
the ballots contested in the election protest, we note on the face of its decision that the trial court relied
on the findings of the National Bureau of Investigation (NBI) handwriting experts which findings
private respondent did not even bother to rebut. We thus see no reason to disregard the presumption of
regularity in the performance of official duty on the part of the trial court judge. Capping this
combination of circumstances which impel the grant of immediate execution is the undeniable urgency
involved in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before
the COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so the
trial court reasonably perceived execution pending appeal to be warranted and justified. Anyway, the
bond posted by petitioner could cover any damages suffered by any aggrieved party. It is true that mere
posting of a bond is not enough reason to justify execution pending appeal, but the nexus of
circumstances aforechronicled considered together and in relation to one another, is the dominant
consideration for the execution pending appeal.

3. ID.; ID.; DE FACTO OFFICER; LEGALLY ENTITLED TO THE EMOLUMENTS OF THE

OFFICE; CASE AT BAR. We deem the award of salaries and other emoluments to be improper and
lacking legal sanction. Respondent COMELEC ruled that inapplicable in the instant case is the ruling
in Rodriguez vs. Tan (91 Phil. 724) because while in that case the official ousted was the one proclaimed
by the COMELEC, in the instant case, petitioner was proclaimed winner only by the trial court and
assumed office by virtue of an order granting execution pending appeal. Again, respondent COMELEC
sweepingly concluded, in justifying the award of damages, that since petitioner was adjudged the winner
in the elections only by the trial court and assumed the functions of the office on the strength merely of
an order granting execution pending appeal, the petitioner occupied the position in an illegal manner as
a usurper. We hold that petitioner was not a usurper because, while a usurper is one who undertakes to
act officially without any color of right, the petitioner exercised the duties of an elective office under
color of election thereto. It matters not that it was the trial court and not the COMELEC that declared
petitioner as the winner, because both, at different stages of the electoral process, have the power to so
proclaim winners in electoral contests. At the risk of sounding repetitive, if only to emphasize this point,
we must reiterate that the decision of a judicial body is no less a basis than the proclamation made by
the COMELEC-convened Board of Canvassers for a winning candidate's right to assume office, for both
are undisputably legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in
good faith, has had possession of the office and had discharged the duties pertaining thereto" and is thus
"legally entitled to the emoluments of the office."
4. ID.; ID.; THE VICTORIOUS PARTY IN AN ELECTION CASE CANNOT BE INDEMNIFIED
FOR EXPENSES WHICH HE HAS INCURRED IN AN ELECTORAL CONTEST IN THE ABSENCE
OF A WRONGFUL ACT OR OMISSION OR BREACH OF OBLIGATION CLEARLY
ATTRIBUTABLE TO THE LOSING PARTY. Section 259 of the Omnibus Election Code only
provides for the granting in election cases of actual and compensatory damages in accordance with law.
The victorious party in an election case cannot be indemnified for expenses which he has incurred in an
electoral contest in the absence of a wrongful act or omission or breach of obligation clearly attributable
to the losing party. Evidently, if any damage had been suffered by private respondent due to the
execution of judgment pending appeal, that damage may be said to be equivalent to damnum absque
injuria, which is, damage without injury, or damage or injury inflicted without injustice, or loss or
damage without violation of a legal right, or a wrong done to a man for which the law provides no
remedy.

DECISION

HERMOSISIMA, JR., J p:
Novel is the situation created by the decision of the Commission on Elections which declared the winner
in an election contest and awarded damages, consisting of attorney's fees, actual expenses for xerox
copies, unearned salary and other emoluments for the period, from March, 1994 to April, 1995, en
masse denominated as actual damages, notwithstanding the fact that the electoral controversy had
become moot and academic on account of the expiration of the term of office of the Municipal Mayor of
Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary
restraining order and writ of preliminary injunction, seeking the review of the decision en banc 1 of the
Commission on Elections (COMELEC) denying the motion for reconsideration of the decision 2 of its
First Division, 3 which reversed the decision 4 of the Regional Trial Court 5 in the election

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case 6 involving the herein parties. While the Regional Trial Court had found petitioner Luis Malaluan
to be the winner of the elections for the position of Municipal Mayor of Kidapawan, North Cotabato, the
COMELEC, on the contrary, found private respondent Joseph Evangelista to be the rightful winner in
said elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in
the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held
on May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal Board of
Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner's 9,792
votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992,
petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181
precincts of the said municipality. The trial court declared petitioner as the duly elected municipal
mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court
found private respondent liable not only for Malaluan's protest expenses but also for moral and
exemplary damages and attorney's fees. On February 3, 1994, private respondent appealed the trial court
decision to the COMELEC.

Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending appeal.
The motion was granted by the trial court, in an order, dated March 8, 1994, after petitioner posted a
bond in the amount of P500,000.00. By virtue of said order, petitioner assumed the office of Municipal
Mayor of Kidapawan, North Cotabato, and exercised the powers and functions of said office. Such
exercise was not for long, though. In the herein assailed decision adverse to Malaluan's continued
governance of the Municipality of Kidapawan, North Cotabato, the First Division of the Commission on
Elections (COMELEC) ordered Malaluan to vacate the office, said division having found and so
declared private respondent to be the duly elected Municipal Mayor of said municipality. The
COMELEC en banc affirmed said decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the May, 1992 elections
expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns
petitioner's right to the mayoralty seat in his municipality 7 because expiration of the term of office
contested in the election protest has the effect of rendering the same moot and academic. 8
When the appeal from a decision in an election case has already become moot, the case being an
election protest involving the office of mayor the term of which had expired, the appeal is dismissible
on that ground, unless the rendering of a decision on the merits would be of practical value. 9 This rule
we established in the case ofYorac vs. Magalona 10 which we dismissed because it had been mooted by
the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. This was the
object of contention between the parties therein. The recent case of Atienza vs. Commission on
Elections, 11 however, squarely presented the situation that is the exception to that rule.
Comparing the scenarios in those two cases, we explained:
"Second, petitioner's citation of Yorac vs. Magalona as authority for his main
proposition is grossly inappropriate and misses the point in issue. The sole
question in that case centered on an election protest involving the mayoralty
post in Saravia, Negros Occidental in the general elections of 1955, which was
rendered moot and academic by the expiration of the term of office in
December, 1959. It did not involve a monetary award for damages and other
expenses incurred as a result of the election protest. In response to the
petitioner's contention that the issues presented before the court were novel and

important and that the appeal should not be dismissed, the Court held citing
the same provision of the Rules of Court upon which petitioner staunchly
places reliance that a decision on the merits in the case would have no
practical value at all, and forthwith dismissed the case for being moot. That is
not the case here. In contradistinction to Yorac, a decision on the merits in the
case at bench would clearly have the practical value of either sustaining the
monetary award for damages or relieving the private respondent from having
to pay the amount thus awarded." 12
Indeed, this petition appears now to be moot and academic because the herein parties are contesting an
elective post to which their right to the office no longer exists. However, the question as to damages
remains ripe for adjudication. The COMELEC found petitioner liable for attorney's fees, actual
expenses for xerox copies, and unearned salary and other emoluments from March, 1994 to April,
1995, en masse denominated as actual damages, default in payment by petitioner of which shall result in
the collection of said amount from the bond posted by petitioner on the occasion of the grant of his
motion for execution pending appeal in the trial court. Petitioner naturally contests the propriety and
legality of this award upon private respondent on the ground that said damages have not been alleged
and proved during trial.
What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion
in awarding the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that "actual or compensatory damages may be granted in all
election contests or in quo warranto proceedings in accordance with law." 13 COMELEC Rules of
Procedure provide that "in all election contests the Court may adjudicate damages and attorney's fees as
it may deem just and as established by the evidence if the aggrieved party has included such claims in
his pleadings." 14 This appears to require only that the judicial award of damages be just and that the
same be borne out by the pleadings and evidence. The overriding requirement for a valid and proper
award of damages, it must be remembered, is that the same is in accordance with law, specifically, the
provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages." The Civil Code further
prescribes the proper setting for allowance of actual or compensatory damages in the following
provisions:
"ART. 2201. In contracts and quasi-contracts, the damages for which the
obligor who acted in good faith is liable shall be those that are the natural and
probable consequences of the breach of the obligation, and which the parties
have foreseen or could have reasonably foreseen at the time the obligation was
constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the nonperformance of the obligation.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or
omission complained of. It is not necessary that such damages have been
foreseen or could have reasonably been foreseen by the defendant."
Considering that actual or compensatory damages are appropriate only in breaches of obligations in
cases of contracts and quasi-contracts and on the occasion of crimes and quasi-delicts where the

121

defendant may be held liable for all damages the proximate cause of which is the act or omission
complained of, the monetary claim of a party in an election case must necessarily be hinged on either a
contract or a quasi-contract or a tortious act or omission or a crime, in order to effectively recover actual
or compensatory damages. 15 In the absence of any or all of these, "the claimant must be able to point
out a specific provision of law authorizing a money claim for election protest expenses against the
losing party." 16 For instance, the claimant may cite any of the following provisions of the Civil
Code under the chapter on human relations, which provisions create obligations not by contract, crime
or negligence, but directly by law:
"ART. 19. Every person must in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and observe
honesty and good faith.
ART. 20. Every person who, contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same.
xxx xxx xxx
ART. 32. Any public officer or employee, or any private individual, who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be
liable to the latter for damages:
xxx xxx xxx

In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while the
general rule is that the ousted elective official is not obliged to reimburse the emoluments of office
that he had received before his ouster, he would be liable for damages in case he would be found
responsible for any unlawful or tortious acts in relation to his proclamation. We quote the pertinent
portion of that opinion for emphasis:
"Nevertheless, if the defendant, directly or indirectly, had committed unlawful
or tortious acts which led to and resulted in his proclamation as senator-elect,
when in truth and in fact he was not so elected, he would be answerable for
damages. In that event the salary, fees and emoluments received by or paid to
him during his illegal incumbency would be a proper item of recoverable
damage." 20
The criterion for a justifiable award of election protest expenses and salaries and emoluments,
thus, remains to be the existence of a pertinent breach of obligations arising from contracts or
quasi-contracts, tortious acts, crimes or a specific legal provision authorizing the money claim in
the context of election cases. Absent any of these, we could not even begin to contemplate liability
for damages in election cases, except insofar as attorney's fees are concerned, since the Civil
Codeenumerates the specific instances when the same may be awarded by the court.
"ART. 2208. In the absence of stipulation, attorney's fees and expenses of
litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;

(5) Freedom of suffrage;

xxx xxx xxx
In any of the cases referred to in this article, whether or not the defendant's act
or omission constitutes a criminal offense, the aggrieved party has a right to
commence an entirely separate and distinct civil action for damages, and for
other relief . . . ." 17

(2) When the defendant's act or omission has compelled the plaintiff to litigate
with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the
plaintiff;

Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00
constituting salary and other emoluments from March, 1994 to April, 1995 that would have accrued to
him had there not been an execution of the trial court's decision pending appeal therefrom in the
COMELEC.

(5) Where the defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiff's plainly valid, just and demandable claim;

The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of an
election protest, an elective official who has been proclaimed by the COMELEC as winner in an
electoral contest and who assumed office and entered into the performance of the duties of that office, is
entitled to the compensation, emoluments and allowances legally provided for the position. 18 We
ratiocinated in the case of Rodriguez vs. Tan that:

(7) In actions for the recovery of wages of household helpers, laborers and
skilled workers;

"This is as it should be. This is in keeping with the ordinary course of events.
This is simple justice. The emolument must go to the person who rendered the
service unless the contrary is provided. There is no averment in the complaint
that he is linked with any irregularity vitiating his election. This is the policy
and the rule that has been followed consistently in this jurisdiction in
connection with positions held by persons who had been elected thereto but
were later ousted as a result of an election protest. The right of the persons
elected to compensation during their incumbency has always been recognized.
We cannot recall of any precedent wherein the contrary rule has been
upheld." 19

(6) In actions for legal support;

(8) In actions for indemnity under workmen's compensation and employer's

liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that
attorney's fees and expenses of litigation should be recovered." 21
Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of
respondent COMELEC for awarding actual damages to private respondent in the form of
reimbursement for attorney's fees, actual expenses for xerox copies, and salary and other emoluments

122

that should have accrued to him from March, 1994 to April, 1995 had the RTC not issued an order for
execution pending appeal.

a baseless court order, he certainly had no right to the salaries and emoluments
of the office.

The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory
damages in this wise:

Actual damages in the form of reimbursement for attorney's fees

(P372,500.00), actual expenses for xerox copies (P15,154.00), unearned salary
and other emoluments from March 1994 to April 1995 or 14 months at
P12,104.00 a month (P169,456.00), totalled P557,110.00. To (sic) this amount,
however, P300,000.00 representing that portion of attorney's fees denominated
as 'success fee' must be deducted this being premised on a contingent event the
happening of which was uncertain from the beginning. Moral damages and
exemplary damages claimed are, of course, disallowed not falling within the
purview of Section 259 of the Omnibus Election Code.

" . . . under the present legal setting, it is more difficult than in the past to
secure an award of actual or compensatory damages either against the
protestant or the protestee because of the requirements of the law.
In the instant case, however, We are disposed to conclude that the election
protest filed by the protestant is clearly unfounded. As borne out by the results
of the appreciation of ballots conducted by this Commission, apparently the
protest was filed in bad faith without sufficient cause or has been filed for the
sole purpose of molesting the protestee-appellant for which he incurred
expenses. The erroneous ruling of the Court which invalidated ballots which
were clearly valid added more injury to the protestee-appellant. This would
have been bearable since he was able to perfect his appeal to this Commission.
The final blow, however, came when the Court ordered the execution of
judgment pending appeal which, from all indications, did not comply with the
requirements of Section 2, Rule 39 of the Rules of Court. There was no good
and special reason at all to justify the execution of judgment pending appeal
because the protestee's winning margin was 149 votes while that of the
protestant after the Court declared him a winner was only a margin of
154 votes. Clearly, the order of execution of judgment pending appeal was
issued with grave abuse of discretion.
For these reasons, protestee-appellant seeks to recover the following:
'1. Actual damages representing attorney's fees for the new counsel who
handled the Appeal and the Petition for Certiorari before the Court of
Appeals . . . P372,500.00
2. Actual expenses for xerox copying of Appellant's Brief and the annexes (14
copies at P1.50 . . . P11,235.00
3. Actual expenses for xerox copying of ballots . . . P3,919.20
4. Actual damages for loss of salary and other emoluments since March 1994
as per attached Certification issued by the Municipal Account of Kidapawan . .
. P96,832.00 (up to October 1994 only)'
Under Article 2208 of the New Civil Code attorney's fees and expenses of
litigation can be recovered (as actual damages) in the case of clearly
unfounded civil action or proceeding. And, while the case of Eulogio
Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries
and allowances (as damages) from elected officials who were later ousted,
under the theory that persons elected has (sic) a right to compensation during
their incumbency, the instant case is different. The protestee-appellant was the
one elected. He was ousted not by final judgment but by an order of execution
pending appeal which was groundless and issued with grave abuse of
discretion. Protestant-appellee occupied the position in an illegal manner as a
usurper and, not having been elected to the office, but merely installed through

It goes without saying that if the protestant-appellee fails to pay the actual
damages of P257,110.00, the amount will be assessed, levied and collected
from the bond of P500,000.00 which he put up before the Court as a condition
for the issuance of the order of execution of judgment pending appeal." 22
Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The
COMELEC en banc, however, did not find any new matter substantial in nature, persuasive in character
or sufficiently provocative to compel reconsideration of said decision and accordingly affirmed in
toto the said decision. Hence, this petition raises, among others, the issue now solely remaining and in
need of final adjudication in view of the mootness of the other issues anent petitioner's right to the
contested office the term for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to petitioner no breach of
contract or quasi-contract; or tortious act nor crime that may make him liable for actual damages.
Neither has private respondent been "able to point out to a specific provision of law authorizing a
money claim for election protest expenses against the losing party." 23
We find respondent COMELEC's reasoning in awarding the damages in question to be fatally flawed.
The COMELEC found the election protest filed by the petitioner to be clearly unfounded because its
own appreciation of the contested ballots yielded results contrary to those of the trial court.
Assuming, ex gratia argumentis, that this is a reasonable observation not without basis, it is nonetheless
fallacious to conclude a malicious intention on the part of petitioner to molest private respondent on the
basis of what respondent COMELEC perceived as an erroneous ruling of the trial court. In other words,
the actuations of the trial court, after the filing of a case before it, are its own, and any alleged error on
its part does not, in the absence of clear proof, make the suit "clearly unfounded" for which the
complainant ought to be penalized. Insofar as the award of protest expenses and attorney's fees are
concerned, therefore we find them to have been awarded by respondent COMELEC without basis, the
election protest not having been a clearly unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment pending appeal to be
defective because of alleged non-compliance with the requirement that there be a good and special
reason 24 to justify execution pending appeal. We, however, find that the trial court acted judiciously in
the exercise of its prerogatives under the law in issuing the order granting execution pending appeal.
First, it should be noted that the applicability of the provisions of the Rules of Court, relating to
execution pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de
Jesus 25 that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order
executions pending appeal upon good reasons stated in a special order, may be made to apply by
analogy or suppletorily to election contests decided by them." 26 It is not disputed that petitioner filed a
bond in the amount of P500,000.00 as required under the Rules of Court.

123

It is also now a settled rule that "as much recognition should be given to the value of the decision of a
judicial body as a basis for the right to assume office as that given by law to the proclamation made by
the Board of Canvassers." 27
". . . Why should the proclamation by the board of canvassers suffice as basis
of the right to assume office, subject to future contingencies attendant to a
protest, and not the decision of a court of justice? Indeed . . . the board of
canvassers is composed of persons who are less technically prepared to make
an accurate appreciation of the ballots, apart from their being more apt to yield
extraneous considerations . . . the board must act summarily, practically raising
(sic) against time, while, on the other hand, the judge has the benefit of all the
evidence the parties can offer and of admittedly better technical preparation
and background, apart from his being allowed ample time for conscientious
study and mature deliberation before rendering judgment . . ." 28

a wrongful act or omission or breach of obligation clearly attributable to the losing party. Evidently, if
any damage had been suffered by private respondent due to the execution of judgment pending appeal,
that damage may be said to be equivalent to damnum absque injuria, which is, damage without injury,
or damage or injury inflicted without injustice, or loss or damage without violation of a legal right, or a
wrong done to a man for which the law provides no remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision
dated May 5, 1995 that private respondent Joseph Evangelista is the winner in the election for mayor of
the Municipality of Kidapawan, North Cotabato, that portion of the decision is deemed moot and
academic because the term of office for mayor has long expired. That portion of the decision awarding
actual damages to private respondent Joseph Evangelista is hereby declared null and void for having
been issued in grave abuse of discretion and in excess of jurisdiction.
SO ORDERED.
||| (Malaluan v. COMELEC, G.R. No. 120193, [March 6, 1996], 324 PHIL 676-698)

Without evaluating the merits of the trial court's actual appreciation of the ballots contested in the
election protest, we note on the face of its decision that the trial court relied on the findings of the
National Bureau of Investigation (NBI) handwriting experts which findings private respondent did
not even bother to rebut. We thus see no reason to disregard the presumption of regularity in the
performance of official duty on the part of the trial court judge. Capping this combination of
circumstances which impel the grant of immediate execution is the undeniable urgency involved in
the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the
COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so
the trial court reasonably perceived execution pending appeal to be warranted and justified.
Anyway, the bond posted by petitioner could cover any damages suffered by any aggrieved party.
It is true that mere posting of a bond is not enough reason to justify execution pending appeal, but
the nexus of circumstances aforechronicled considered together and in relation to one another, is
the dominant consideration for the execution pending appeal. 29
Finally, we deem the award of salaries and other emoluments to be improper and lacking legal sanction.
Respondent COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez vs.
Tan 30 because while in that case the official ousted was the one proclaimed by the COMELEC, in the
instant case, petitioner was proclaimed winner only by the trial court and assumed office by virtue of an
order granting execution pending appeal. Again, respondent COMELEC sweepingly concluded, in
justifying the award of damages, that since petitioner was adjudged the winner in the elections only by
the trial court and assumed the functions of the office on the strength merely of an order granting
execution pending appeal, the petitioner occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act
officially without any color of right, 31 the petitioner exercised the duties of an elective office under
color of election thereto. 32 It matters not that it was the trial court and not the COMELEC that declared
petitioner as the winner, because both, at different stages of the electoral process, have the power to so
proclaim winners in electoral contests. At the risk of sounding repetitive, if only to emphasize this point,
we must reiterate that the decision of a judicial body is no less a basis than the proclamation made by
the COMELEC-convened Board of Canvassers for a winning candidate's right to assume office, for both
are undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in
good faith, has had possession of the office and had discharged the duties pertaining thereto" 33 and is
thus "legally entitled to the emoluments of the office." 34
To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election
cases of actual and compensatory damages in accordance with law. The victorious party in an election
case cannot be indemnified for expenses which he has incurred in an electoral contest in the absence of

EN BANC

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[G.R. No. 140835. August 14, 2000.]

RAMON A. GONZALES, petitioner, vs. HON. ANDRES R. NARVASA, as
Chairman, PREPARATORY COMMISSION ON CONSTITUTIONAL
REFORMS; HON. RONALDO B. ZAMORA, as Executive Secretary;
COMMISSION ON AUDIT; ROBERTO AVENTAJADO, as Presidential
Consultant on Council of Economic Advisers/Economic Affairs;
ANGELITO C. BANAYO, as Presidential Adviser for/on Political Affairs;
VERONICA IGNACIO-JONES, as Presidential Assistant/Appointment
Secretary (In charge of appointments), respondents.

Ramon A. Gonzales for petitioner.

The Solicitor General for respondents.

SYNOPSIS
Petitioner, as a citizen and taxpayer, filed this petition for prohibition and mandamus assailing the
constitutionality of the creation of the Preparatory Commission on Constitutional Reform (PCCR) and
of the positions of presidential consultants, advisers and assistants. Petitioner asked the Court to enjoin
the PCCR and said presidential consultants, advisers and assistants from acting as such and to compel
respondent Zamora to furnish petitioner with information on certain matters.
The Supreme Court held that with respect to the PCCR, this case had become moot and academic since
the PCCR no longer exists. Petitioner lacks standing to seek judicial redress as a citizen because he has
not shown that he has sustained or is in danger of sustaining any personal injury attributable to the
creation of the PCCR. Neither can he file a taxpayer's action which is proper only when there is an
exercise by Congress of its taxing or spending power. Funds used for the PCCR were taken from funds
intended for the Office of the President, and not from public funds made by law. Petitioner, however,
has the constitutional and statutory right to be informed on matters which are unquestionably of public
concern namely, requests for names of executive officials holding multiple positions in government,
copies of their appointments and a list of the recipients of luxury vehicles seized by the Bureau of
Customs and turned over to Malacaang. Respondent Zamora, in his official capacity as Executive
Secretary, was ordered to furnish petitioner with the information requested.

SYLLABUS
1. REMEDIAL LAW; ACTION; WHEN CONSIDERED "MOOT"; CASE AT BAR. An action is
considered "moot" when it no longer presents a justiciable controversy because the issues involved have
become academic or dead. Under E.O. No. 43, the PCCR was instructed to complete its task on or
before June 30, 1999. However, on February 19, 1999, the President issued Executive Order No. 70
(E.O. No. 70), which extended the time frame for the completion of the commission's work, viz
SECTION 6. Section 8 is hereby amended to read as follows: Time Frame. The Commission shall
commence its work on 01 January 1999 and complete the same on or before 31 December 1999. The
Commission shall submit its report and recommendations to the President within fifteen (15) working
days from 31 December 1999. The PCCR submitted its recommendations to the President on December

20, 1999 and was dissolved by the President on the same day. It had likewise spent the funds allotted to
it. Thus, the PCCR has ceased to exist, having lost its raison d'etre. Subsequent events have overtaken
the petition and the Court has nothing left to resolve.CSHEca
2. ID.; SPECIAL CIVIL ACTIONS; PROHIBITION; DOES NOT LIE TO RESTRAIN AN ACT THAT
IS ALREADY FAIT ACCOMPLI; CASE AT BAR. Basically, petitioner asks this Court to enjoin the
PCCR from acting as such. Clearly, prohibition is an inappropriate remedy since the body sought to be
enjoined no longer exists. It is well established that prohibition is a preventive remedy and does not lie
to restrain an act that is already fait accompli. At this point, any ruling regarding the PCCR would
simply be in the nature of an advisory opinion, which is definitely beyond the permissible scope of
judicial power.
3. CONSTITUTIONAL LAW; JUDICIARY; SUPREME COURT POWER OF JUDICIAL
REVIEW; LOCUS STANDI, HOW ESTABLISHED; CREATION OF PRESIDENTIAL COMMISSION
ON CONSTITUTIONAL REFORM (PCCR) CANNOT BE QUESTIONED IN CASE AT BAR. The
question in standing is whether a party has "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional questions." In assailing the
constitutionality of E.O. Nos. 43 and 70, petitioner asserts his interest as a citizen and taxpayer. A citizen
acquires standing only if he can establish that he has suffered some actual or threatened injury as a result
of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action. . . . Coming now to the instant case,
petitioner has not shown that he has sustained or is in danger of sustaining any personal injury
attributable to the creation of the PCCR. . . .. Neither does he claim that his rights or privileges have
been or are in danger of being violated, nor that he shall be subjected to any penalties or burdens as a
result of the PCCR's activities. Clearly, petitioner has failed to establish his locus standi so as to enable
him to seek judicial redress as a citizen. A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public funds have been disbursed in alleged contravention
of the law or the Constitution. Thus, a taxpayer's action is properly brought only when there is an
exercise by Congress of its taxing or spending power. . . . Coming now to the instant case, it is readily
apparent that there is no exercise by Congress of its taxing or spending power. The PCCR was created
by the President by virtue of E.O. No. 43, as amended by E.O. No. 70. Under Section 7 of E.O. No. 43,
the amount of P3 million is "appropriated" for its operational expenses "to be sourced from the funds of
the Office of the President." . . . The appropriations for the PCCR were authorized by the President, not
by Congress. In fact, there was no appropriation at all. . . . There being no exercise by Congress of its
taxing or spending power, petitioner cannot be allowed to question the creation of the PCCR in his
capacity as a taxpayer.
4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS; LIES TO ALLOW ACCESS TO
INFORMATION DEALING WITH MATTERS OF PUBLIC CONCERN; CASE AT BAR. Finally,
petitioner asks us to issue a writ of mandamus ordering Executive Secretary Ronaldo B. Zamora to
answer his letter dated October 4, 1999 requesting for the names of executive officials holding multiple
positions in government, copies of their appointments, and a list of the recipients of luxury vehicles
seized by the Bureau of Customs and turned over to Malacaang. We agree with petitioner that
respondent Zamora, in his official capacity as Executive Secretary, has a constitutional and statutory
duty to answer petitioner's letter dealing with matters which are unquestionably of public concern
that is, appointments made to public offices and the utilization of public property. With regard to
petitioner's request for copies of the appointment papers of certain officials, respondent Zamora is
obliged to allow the inspection and copying of the same subject to the reasonable limitations required
for the orderly conduct of official business. IEAacS

125

DECISION

The staleness of the issue before us is made more manifest by the impossibility of granting the relief
prayed for by petitioner. Basically, petitioner asks this Court to enjoin the PCCR from acting as
such. 7 Clearly, prohibition is an inappropriate remedy since the body sought to be enjoined no longer
exists. It is well established that prohibition is a preventive remedy and does not lie to restrain an act
that is already fait accompli. 8 At this point, any ruling regarding the PCCR would simply be in the
nature of an advisory opinion, which is definitely beyond the permissible scope of judicial power.

In this petition for prohibition and mandamus filed on December 9, 1999, petitioner Ramon A.
Gonzales, in his capacity as a citizen and taxpayer, assails the constitutionality of the creation of the
Preparatory Commission on Constitutional Reform (PCCR) and of the positions of presidential
consultants, advisers and assistants. Petitioner asks this Court to enjoin the PCCR and the presidential
consultants, advisers and assistants from acting as such, and to enjoin Executive Secretary Ronaldo B.
Zamora from enforcing their advice and recommendations. In addition, petitioner seeks to enjoin the
Commission on Audit from passing in audit expenditures for the PCCR and the presidential consultants,
advisers and assistants. Finally, petitioner prays for an order compelling respondent Zamora to furnish
petitioner with information on certain matters.

In addition to the mootness of the issue, petitioner's lack of standing constitutes another obstacle to the
successful invocation of judicial power insofar as the PCCR is concerned.

GONZAGA-REYES, J p:

On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his capacity as Chairman of the
PCCR, filed his Comment to the Petition. The rest of the respondents, who are being represented in this
case by the Solicitor General, filed their Comment with this Court on March 7, 2000. Petitioner then
filed a Consolidated Reply on April 24, 2000, whereupon this case was considered submitted for
decision. CAaDSI
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform (PCCR) was created by President Estrada on
November 26, 1998 by virtue of Executive Order No. 43 (E.O. No. 43) in order "to study and
recommend proposed amendments and/or revisions to the 1987 Constitution, and the manner of
implementing the same." 1 Petitioner disputes die constitutionality of the PCCR on two grounds. First,
he contends that it is a public office which only the legislature can create by way of a law. 2 Secondly,
petitioner asserts that by creating such a body the President is intervening in a process from which he is
totally excluded by the Constitution the amendment of the fundamental charter. 3
It is alleged by respondents that, with respect to the PCCR, this case has become moot and academic.
We agree.
An action is considered "moot" when it no longer presents a justiciable controversy because the issues
involved have become academic or dead. 4 Under E.O. No. 43, the PCCR was instructed to complete its
task on or before June 30, 1999. 5 However, on February 19, 1999, the President issued Executive Order
No. 70 (E.O. No. 70), which extended the time frame for the completion of the commission's
work, viz

SECTION 6. Section 8 is hereby amended to read as follows:

Time Frame. The Commission shall commence its work on 01 January 1999
and complete the same on or before 31 December 1999. The
Commission shall submit its report and recommendations to the
President within fifteen (15) working days from 31 December 1999.
The PCCR submitted its recommendations to the President on December 20, 1999 and was
dissolved by the President on the same day. It had likewise spent the funds allotted to it. 6 Thus,
the PCCR has ceased to exist, having lost its raison d'etre. Subsequent events have overtaken the
petition and the Court has nothing left to resolve.

The question in standing is whether a party has "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional questions." 9 In assailing the
constitutionality of E.O. Nos. 43 and 70, petitioner asserts his interest as a citizen and taxpayer. 10 A
citizen acquires standing only if he can establish that he has suffered some actual or threatened injury as
a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged
action; and the injury is likely to be redressed by a favorable action. 11 In Kilosbayan, Incorporated v.
Morato, 12 we denied standing to petitioners who were assailing a lease agreement between the
Philippine Charity Sweepstakes Office and the Philippine Gaming Management Corporation, stating
that,
. . . in Valmonte v. Philippine Charity Sweepstakes Office, G.R. No. 78716,
Sept. 22, 1987, standing was denied to a petitioner who sought to declare a
form of lottery known as Instant Sweepstakes invalid because, as the Court
held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of
three (3) minor children. But nowhere in his petition does petitioner
claim that his rights and privileges as a lawyer or citizen have been
directly and personally injured by the operation of the Instant
Sweepstakes. The interest of the person assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law is invalid, but also that he has
sustained or in immediate danger of sustaining some direct injury as
a result of its enforcement, and not merely that he suffers thereby in
some indefinite way. It must appear that the person complaining has
been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens
or penalties by reason of the statute complained of.
We apprehend no difference between the petitioner in Valmonte and the present
petitioners. Petitioners do not in fact show what particularized interest they
have for bringing this suit. It does not detract from the high regard for
petitioners as civic leaders to say that their interest falls short of that required
to maintain an action under Rule 3, 2.
Coming now to the instant case, petitioner has not shown that he has sustained or is in danger of
sustaining any personal injury attributable to the creation of the PCCR. If at all, it is only Congress, not
petitioner, which can claim any "injury" in this case since, according to petitioner, the President has
encroached upon the legislature's powers to create a public office and to propose amendments to the
Charter by forming the PCCR. Petitioner has sustained no direct, or even any indirect, injury. Neither
does he claim that his rights or privileges have been or are in danger of being violated, nor that he shall
be subjected to any penalties or burdens as a result of the PCCR's activities. Clearly, petitioner has failed
to establish his locus standi so as to enable him to seek judicial redress as a citizen.

126

A taxpayer is deemed to have the standing to raise a constitutional issue when it is established that
public funds have been disbursed in alleged contravention of the law or the Constitution. 13 Thus, a
taxpayer's action is properly brought only when there is an exercise by Congress of its taxing or
spending power. 14 This was our ruling in a recent case wherein petitioners Telecommunications and
Broadcast Attorneys of the Philippines (TELEBAP) and GMA Network, Inc. questioned the validity
ofSection 92 of B.P. No. 881 (otherwise known as the "Omnibus Election Code") requiring radio and
television stations to give free air time to the Commission on Elections during the campaign
period. 15 The Court held that petitioner TELEBAP did not have any interest as a taxpayer since the
assailed law did not involve the taxing or spending power of Congress. 16
Many other rulings have premised the grant or denial of standing to taxpayers upon whether or not the
case involved a disbursement of public funds by the legislature. In Sanidad v. Commission on
Elections, 17 the petitioners therein were allowed to bring a taxpayers' suit to question several
presidential decrees promulgated by then President Marcos in his legislative capacity calling for a
national referendum, with the Court explaining that
. . . [i]t is now all ancient rule that the valid source of a statute Presidential
Decrees are of such nature may be contested by one who will sustain a
direct injury as a result of its enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds may be enjoined, upon the
theory that the expenditure of public funds by an officer of the State for the
purpose of executing an unconstitutional act constitutes a misapplication of
such funds. The breadth of Presidential Decree No. 991 carries an
appropriation of Five Million Pesos for the effective implementation of its
purposes. Presidential Decree No. 1031 appropriates the sum of Eight Million
Pesos to carry out its provisions. The interest of the aforenamed petitioners as
taxpayers in the lawful expenditure of these amounts of public money
sufficiently clothes them with that personality to litigate the validity of the
Decrees appropriating said funds . . . ECcTaS
In still another case, the Court held that petitioners the Philippine Constitution Association,
Inc., a non-profit civic organization had standing as taxpayers to question the constitutionality
of Republic Act No. 3836 insofar as it provides for retirement gratuity and commutation of
vacation and sick leaves to Senators and Representatives and to the elective officials of both
houses of Congress. 18 And in Pascual v. Secretary of Public Works, 19 the Court allowed
petitioner to maintain a taxpayer's suit assailing the constitutional soundness of Republic Act No.
920 appropriating P85,000.00 for the construction, repair and improvement of feeder roads within
private property. All these cases involved the disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v. Laron, 20 the Court declared that
the trial court was wrong in allowing respondent Ravanzo to bring an action for injunction in his
capacity as a taxpayer in order to question the legality of the contract of lease covering the public
market entered into between the City of Dagupan and petitioner. The Court declared that Ravanzo did
not possess the requisite standing to bring such taxpayer's suit since "[o]n its face, and there is no
evidence to the contrary the lease contract entered into between petitioner and the City shows that no
public funds have been or will be used in the construction of the market building."
Coming now to the instant case, it is readily apparent that there is no exercise by Congress of its taxing
or spending power. The PCCR was created by the President by virtue of E.O. No. 43, as amended by
E.O. No. 70. Under Section 7 of E.O. No. 43, the amount of P3 million is "appropriated" for its
operational expenses "to be sourced from the funds of the Office of the President." The relevant
provision states

Appropriations. The initial amount of Three Million Pesos (P3,000,000.00) is

hereby appropriated for the operational expenses of the Commission to be
sourced from funds of the Office of the President, subject to the usual
accounting and auditing rules and regulations. Additional amounts shall be
released to the Commission upon submission of requirements for expenditures.
The appropriations for the PCCR were authorized by the President, not by Congress. In fact, there
was no appropriation at all. "In a strict sense, appropriation has been defined 'as nothing more
than the legislative authorization prescribed by the Constitution that money may be paid out of the
Treasury,' while appropriation made by law refers to 'the act of the legislature setting apart or
assigning to a particular use a certain sum to be used in the payment of debt or dues from the State
to its creditors.'" 21 The funds used for the PCCR were taken from funds intended for the Office of
the President, in the exercise of the Chief Executive's power to transfer funds pursuant to Section
25 (5) of Article VI of the Constitution.
In the final analysis, it must be stressed that the Court retains the power to decide whether or not it will
entertain a taxpayer's suit. 22 In the case at bar, there being no exercise by Congress of its taxing or
spending power, petitioner cannot be allowed to question the creation of the PCCR in his capacity as a
taxpayer, but rather, he must establish that he has a "personal and substantial interest in the case and that
he has sustained or will sustain direct injury as a result of its enforcement." 23 In other words, petitioner
must show that he is a real party in interest that he will stand to be benefited or injured by the
judgment or that he will be entitled to the avails of the suit. 24 Nowhere in his pleadings does petitioner
presume to make such a representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential consultants. Petitioner alleges that in
1995 and 1996, the President created seventy (70) positions in the Office of the President and appointed
to said positions twenty (20) presidential consultants, twenty-two (22) presidential advisers, and twentyeight (28) presidential assistants. 25 Petitioner asserts that, as in the case of the PCCR, the President
does not have the power to create these positions. 26
Consistent with the abovementioned discussion on standing, petitioner does not have the personality to
raise this issue before the Court. First of all, he has not proven that he has sustained or is in danger of
sustaining any injury as a result of the appointment of such presidential advisers. Secondly, petitioner
has not alleged the necessary facts so as to enable the Court to determine if he possesses a taxpayer's
interest in this particular issue. Unlike the PCCR which was created by virtue of an executive order,
petitioner does not allege by what official act, whether it be by means of an executive order,
administrative order, memorandum order, or otherwise, the President attempted to "create" the positions
of presidential advisers, consultants and assistants. Thus, it is unclear what act of the President petitioner
is assailing. In support of his allegation, petitioner merely annexed a copy of the Philippine Government
Directory (Annex "C") listing the names and positions of such presidential consultants, advisers and
assistants to his petition. However, appointment is obviously not synonymous with creation. It would be
improvident for this Court to entertain this issue given the insufficient nature of the allegations in the
Petition.
III. Right to Information
Finally, petitioner asks us to issue a writ of mandamus ordering Executive Secretary Ronaldo B. Zamora
to answer his letter (Annex "D") dated October 4, 1999 requesting for the names of executive officials
holding multiple positions in government, copies of their appointments, and a list of the recipients of
luxury vehicles seized by the Bureau of Customs and turned over to Malacaang. 27
The right to information is enshrined in Section 7 of the Bill of Rights which provides that

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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.
Under both the 1973 28 and 1987 Constitution, this is a self-executory provision which can be invoked
by any citizen before the courts. This was our ruling in Legaspi v. Civil Service Commission, 29 wherein
the Court classified the right to information as a public right and "when a mandamus proceeding
involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact
that the petitioner is a citizen, and therefore, part of the general 'public' which possesses the right."
However, Congress may provide for reasonable conditions upon the access to information. Such
limitations were embodied in Republic Act No. 6713, otherwise knows as the "Code of Conduct and
Ethical Standards for Public Officials and Employees," which took effect on March 25, 1989. This law
provides that, in the performance of their duties, all public officials and employees are obliged to
respond to letters sent by the public within fifteen (15) working days from receipt thereof and to ensure
the accessibility of all public documents for inspection by the public within reasonable working hours,
subject to the reasonable claims of confidentiality.30
Elaborating on the significance of the right to information, the Court said in Baldoza v. Dimaano 31 that
"[t]he 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." The information to which the public is entitled to are those concerning "matters
of public concern," a term which "embrace[s] a broad spectrum of subjects which the public may want
to know, either because these directly affect their lives, or simply because such matters naturally arouse
the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case
basis whether the matter at issue is of interest or importance, as it relates to or affects the public." 32
Thus, we agree with petitioner that respondent Zamora, in his official capacity as Executive Secretary,
has a constitutional and statutory duty to answer petitioner's letter dealing with matters which are
unquestionably of public concern that is, appointments made to public offices and the utilization of
public property. With regard to petitioner's request for copies of the appointment papers of certain
officials, respondent Zamora is obliged to allow the inspection and copying of the same subject to the
reasonable limitations required for the orderly conduct of official business. 33
WHEREFORE, the petition is dismissed, with the exception that respondent Zamora is ordered to
furnish petitioner with the information requested. ESHAIC

EN BANC
[G.R. No. 138570. October 10, 2000.]
BAYAN (Bagong Alyansang Makabayan), JUNK VFA MOVEMENT,
BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente),
BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR.
REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG
PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and
the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE
SECRETARY
RONALDO
ZAMORA,
FOREIGN
AFFAIRS
SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY
ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE,
SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN
DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON,
and SENATOR FRANCISCO TATAD, respondents.

[G.R. No. 138572. October 10, 2000.]

PHILIPPINE CONSTITUTION ASSOCIATION,
INC.(PHILCONSA),
EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO,
AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B.
ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as
Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as
Secretary of Foreign Affairs, respondents.

[G.R. No. 138587. October 10, 2000.]

SO ORDERED.
||| (Gonzales v. Narvasa, G.R. No. 140835, [August 14, 2000], 392 PHIL 518-531)

TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R.

OSMEA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B.
ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO,
MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and
RODOLFO G. BIAZON, respondents.

[G.R. No. 138680. October 10, 2000.]

INTEGRATED BAR OF THE PHILIPPINES, Represented by its
National President, Jose Aguila Grapilon, petitioners, vs. JOSEPH

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EJERCITO ESTRADA, in his capacity as President, Republic of the

Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary
of Foreign Affairs, respondents.

[G.R. No. 138698. October 10, 2000.]

JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON
AVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA.
SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO,
FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN,
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY
AND
NATIONALISM,
INC.
(MABINI), petitioners, vs.
THE
EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN
AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE
PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE,
SENATOR RODOLFO G. BLAZON, AND ALL OTHER PERSONS
ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND
INSTRUCTION IN RELATION TO THE VISITING FORCES
AGREEMENT (VFA), respondents.

Romeo B. Igot and Victoria G. delos Reyes for petitioner in G.R. No. 138680.
Eulogia M. Cueva for petitioner IBP.
Ramon A. Gonzales for PHILCONSA.
Wigberto E. Taada and Lorenzo Taada III for petitioners Jovito R. Salonga, Wigberto E. Taada, Sr.,
Agapito A. Aquino, Joker P. Arroyo, and Rene A.V. Saguisag.
Theodore O. Te for petitioners Avancea, Simbulan, Sanidad, Diokno and Rivera, Jr.

SYNOPSIS
The instant petitions for certiorari and prohibition assailed the agreement forged between the RP and
the USA THE VISITING FORCES AGREEMENT, which formalized, among others, the use of
installations in the Philippine territory by the US military personnel to strengthen their defense and
security relationship. On October 5, 1998, President Joseph E. Estrada ratified the VFA, and then
transmitted to the Senate his letter of ratification and the VFA for concurrence pursuant to Section 21,
Art. VII of the 1987 Constitution. The Senate subsequently approved the VFA by a 2/3 vote of its
members.
From these consolidated petitions, petitioners as legislators, non-governmental organizations, citizens
and taxpayers assailed the constitutionality of the VFA and imputed to respondents grave abuse of
discretion in ratifying the agreement.
In dismissing the petition, the Supreme Court held: that at the outset, petitioners have no locus standi to
bring the suit because they have not shown any interest in the case nor have they substantiated that they
have sustained or will sustain direct injury as a result of the operation of the VFA; that as taxpayers,

they have not established that the VFA involves the illegal disbursement of public funds raised by
taxation; that whether the President referred the VFA to the Senate and the latter extended its
concurrence under Section 21 , Article VII, or Section 25, Article XVIII, is immaterial, for in either
case, the fundamental law is crystalline that the concurrence of the Senate is mandatory; that with regard
to the ratification by the President of the VFA and the exercise by the Senate of its constitutional power
to concur with the VFA, the Court, absent clear showing of grave abuse of discretion on the part of
respondents, is without power to meddle with such affairs purely executive and legislative in character
and nature; and that with the ratification of the VFA, which is equivalent to final acceptance and with
the exchange of notes between the Philippines and the USA, it now becomes obligatory, under the
principles of international law, to be bound by the terms of the agreement.

SYLLABUS
1. REMEDIAL LAW; ACTIONS; REQUIREMENTS TO ALLOW A SUIT CHALLENGING THE
CONSTITUTIONALITY OF A LAW, ACT OR STATUTE; PETITIONERS HAVE NO LEGAL
STANDING TO ASSAIL THE LEGALITY OF THE VFA IN CASE AT BAR. A party bringing a suit
challenging the constitutionality of a law, act, or statute must show "not only that the law is invalid, but
also that he has sustained or is in immediate, or imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way." He must show
that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that
he is about to be subjected to some burdens or penalties by reason of the statute complained of. In the
case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or
are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers,
petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending
powers. On this point, it bears stressing that a taxpayer's suit refers to a case where the act complained
of directly involves the illegal disbursement of public funds derived from taxation. . . Clearly, inasmuch
as no public funds raised by taxation are involved in this case, and in the absence of any allegation by
petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no
legal standing to assail the legality of the VFA. Similarly, Representatives Wigberto Taada, Agapito
Aquino and Joker Arroyo, as petitioners-legislators, do not possess the requisite locus standi to maintain
the present suit. . . [T]he allegations of impairment of legislative power, such as the delegation of the
power of Congress to grant tax exemptions, are more apparent than real. While it may be true that
petitioners pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners
failed however to sufficiently show that they have in fact suffered direct injury.
2. POLITICAL LAW; INTERNATIONAL LAW; PACTA SUNT SERVANDA; EFFECT OF RP'S
RATIFICATION OF THE VFA AND USA'S ACKNOWLEDGMENT OF THE VFA AS A TREATY;
CASE AT BAR. The records reveal that the United States Government, through Ambassador Thomas
C. Hubbard, has stated that the United States government has fully committed to living up to the terms
of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty,
and binds itself further to comply with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution. Worth stressing too, is that the ratification, by the
President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal
expression of our nation's consent to be bound by said treaty, with the concomitant duty to uphold the
obligations and responsibilities embodied thereunder. With the ratification of the VFA, which is
equivalent to final acceptance, and with the exchange of notes between the Philippines and the United
States of America, it now becomes obligatory and incumbent on our part, under the principles of
international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of
the Constitution, declares that the Philippines adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations. As a member of the family of nations, the Philippines agrees to

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be bound by generally accepted rules for the conduct of its international relations. While the
international obligation devolves upon the state and not upon any particular branch, institution, or
individual member of its government, the Philippines is nonetheless responsible for violations
committed by any branch or subdivision of its government or any official thereof. As an integral part of
the community of nations, we are responsible to assure that our government, Constitution and laws will
carry out our international obligation. . . Article 26 of the convention provides that "Every treaty in force
is binding upon the parties to it and must be performed by them in good faith." This is known as the
principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals.
3. CONSTITUTIONAL LAW; EXECUTIVE DEPARTMENT; POWER TO ENTER INTO TREATIES
AND INTERNATIONAL AGREEMENTS IS VESTED IN THE PRESIDENT; CASE AT BAR. As
regards the power to enter into treaties or international agreements, the Constitution vests the same in
the President, subject only to the concurrence of at least two-thirds vote of all the members of the
Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation
the Senate cannot intrude, and Congress itself is powerless to invade it. Consequently, the acts or
judgment calls of the President involving the VFA specifically the acts of ratification and entering
into a treaty and those necessary or incidental to the exercise of such principal acts squarely fall
within the sphere of his constitutional powers and thus, may not be validly struck down, much less
calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.

4. REMEDIAL LAW; CERTIORARI; GRAVE ABUSE OF DISCRETION; ACT OF THE PRESIDENT

IN SUBMITTING THE VFA TO THE SENATE FOR CONCURRENCE UNDER SECTION 21 OF
ARTICLE VII, INSTEAD OF SECTION 25 OF ARTICLE XVIII OF THE CONSTITUTION, NOT A
CASE OF. It is the Court's considered view that the President, in ratifying the VFA and in submitting
the same to the Senate for concurrence, acted within the confines and limits of the powers vested in him
by the Constitution. It is of no moment that the President, in the exercise of his wide latitude of
discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of
theConstitution, referred the VFA to the Senate for concurrence under the aforementioned provision.
Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may be
imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the
purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so,
the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to
the functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under
the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution,
still, the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse
of discretion in some patent, gross, and capricious manner.
5. CONSTITUTIONAL LAW; LEGISLATIVE DEPARTMENT; TREATY-CONCURRING POWER
OF THE SENATE PERTAINS TO THE WISDOM OF AN ACT WHICH IS BEYOND THE
PROVINCE OF THE COURTS TO INQUIRE. As to the power to concur with treaties,
the constitution lodges the same with the Senate alone. Thus, once the Senate performs that power, or
exercises its prerogative within the boundaries prescribed by the Constitution, the concurrence manner,
be viewed to constitute an abuse of power, much less grave abuse thereof. Corollarily, the Senate, in the
exercise of its discretion and acting within the limits of such power, may not be similarly faulted for
having simply performed a task conferred and sanctioned by no less than the fundamental law. For the
role of the Senate in relation to treaties is essentially legislative in character; the Senate, as an
independent body possessed of its own erudite mind, has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion,

pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal,
yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in a democratic government
such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a
healthy system of checks and balances indispensable toward our nation's pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a
legislative act are beyond the ambit and province of the courts to inquire.
PUNO, J., dissenting:
1. CONSTITUTIONAL LAW; SEC. 25, ART. XVIII THEREOF; TREATY ALLOWING PRESENCE
OF MILITARY BASES, TROOPS AND FACILITIES SHOULD ALSO BE "RECOGNIZED AS A
TREATY BY THE OTHER CONTRACTING PARTY." . . . Sec. 25, Art. XVIII of
the Constitution requires that the treaty allowing the presence of foreign military bases, troops, and
facilities should also be "recognized as a treaty by the other contracting party." In plain
language, recognition of the United States as the other contracting party of the VFA should be by the
U.S. President with the advice and consent of the U.S. Senate.
2. ID.; ID.; ID.; TREATY AND EXECUTIVE AGREEMENT IN U.S. PRACTICE, DISTINGUISHED;
THE VFA IS MORE AKIN TO A SOLE OR PRESIDENTIAL EXECUTIVE AGREEMENT. . . . In
U.S. practice, a "treaty" is only one of four types of international agreements, namely: Article II
treaties, executive agreements pursuant to a treaty, congressional-executive agreements, and sole
executive agreements. The term "executive agreement" is used both colloquially and in scholarly and
governmental writings as a convenient catch-all to subsume all international agreements intended to
bind the United States and another government, other than those which receive consent of two-thirds of
the U.S. Senate. The U.S. Constitution does not expressly confer authority to make these executive
agreements, hence the authority to make them, their scope, and legal force have been the subject of a
long-ongoing debate. . . At best, the VFA would be more akin to a sole or presidential executive
agreement which would be valid if concluded on the basis of the US. President's exclusive power under
the U.S. Constitution. . . While treaties and sole executive agreements have the same legal effect on state
law, sole executive agreements pale in comparison to treaties when pitted against prior inconsistent acts
of Congress. [C]ommentators have been in general agreement that unlike treaties, sole executive
agreements cannot prevail over prior inconsistent federal legislation. CAIHTE
3. ID.; ID.; ID.; VFA, AS A SOLE EXECUTIVE AGREEMENT UNDER U.S. LAW, FALLS SHORT
OF THE CONSTITUTIONAL REQUIREMENT SET THEREIN ALLOWING PRESENCE OF U.S.
TROOPS IN PHILIPPINE SOIL. In conclusion, after a macro view of the landscape of U.S. foreign
relations vis-a-vis U.S. constitutional law, with special attention on the legal status of sole executive
agreements, I respectfully submit that the Court will be standing on unstable ground if it places a sole
executive agreement like the VFA on the same constitutional plateau as a treaty. Questions remain and
the debate continues on the constitutional basis as well as the legal effects of sole executive agreements
under U.S. law. The observation of Louis Henkin, a noted international and U.S. constitutional law
scholar, captures the sentiments of the framers of the Philippine Constitution and of the Filipinos in
crafting Sec. 25, Art. XVIII of the 1987 Constitution "(o)ften the treaty process will be used at the
insistence of other parties to an agreement because they believe that a treaty has greater 'dignity' than an
executive agreement, because its constitutional effectiveness is beyond doubt, because a treaty will
'commit' the Senate and the people of the United States and make its subsequent abrogation or violation
less likely." With the cloud of uncertainty still hanging on the exact legal force of sole executive
agreements under U.S. constitutional law, this Court must strike a blow for the sovereignty of our
country by drawing a bright line between the dignity and status of a treaty in contrast with a sole
executive agreement. However we may wish it, the VFA, as a sole executive agreement, cannot climb to
the same lofty height that the dignity of a treaty can reach. Consequently, it falls short of the
requirement set by Sec. 25, Art. XVIII of the 1987 Constitution that the agreement allowing the presence

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of foreign military troops on Philippine soil must be "recognized as a treaty by the other contracting
state."

DECISION

On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443 8 recommending the
concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee
its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds
(2/3) vote 9 of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No.
18. 10

BUENA, J p:

On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent
Secretary Siazon and United States Ambassador Hubbard.

Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition
are issues relating to, and borne by, an agreement forged in the turn of the last century between the
Republic of the Philippines and the United States of America the Visiting Forces Agreement.

The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating
the circumstances and conditions under which US Armed Forces and defense personnel may be present
in the Philippines, and is quoted in its full text, hereunder:

The antecedents unfold.

On March 14, 1947, the Philippines and the United States of America forged a Military Bases
Agreement which formalized, among others, the use of installations in the Philippine territory by United
States military personnel. To further strengthen their defense and security relationship, the Philippines
and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the
parties agreed to respond to any external armed attack on their territory, armed forces, public vessels,
and aircraft. 1
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines
and the United States negotiated for a possible extension of the military bases agreement. On September
16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and
Security which, in effect, would have extended the presence of US military bases in the
Philippines. 2 With the expiration of the RP-US Military Bases Agreement, the periodic military
exercises conducted between the two countries were held in abeyance. Notwithstanding, the defense and
security relationship between the Philippines and the United States of America continued pursuant to the
Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia
Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary
Rodolfo Severino Jr., to exchange notes on "the complementing strategic interests of the United States
and the Philippines in the Asia-Pacific region." Both sides discussed, among other things, the possible
elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA
led to a consolidated draft text, which in turn resulted to a final series of conferences and
negotiations 3 that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V.
Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and
Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs,
ratified the VFA. 4
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora,
officially transmitted to the Senate of the Philippines, 5 the Instrument of Ratification, the letter of the
President 6 and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.
The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F.
Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for
their joint consideration and recommendation. Thereafter, joint public hearings were held by the two
Committees. 7

"Article I
Definitions
"As used in this Agreement, 'United States personnel' means United States
military and civilian personnel temporarily in the Philippines in connection
with activities approved by the Philippine Government.
"Within this definition:
"1. The term 'military personnel' refers to military members of the United
States Army, Navy, Marine Corps, Air Force, and Coast Guard.
"2. The term 'civilian personnel' refers to individuals who are neither nationals
of, nor ordinary residents in the Philippines and who are employed
by the United States armed forces or who are accompanying the
United States armed forces, such as employees of the American
Red Cross and the United Services Organization.
"Article II
Respect for Law
"It is the duty of the United States personnel to respect the laws of the
Republic of the Philippines and to abstain from any activity inconsistent with
the spirit of this-agreement, and, in particular, from any political activity in the
Philippines. The Government of the United States shall take all measures
within its authority to ensure that this is done.
"Article III
Entry and Departure
"1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in
connection with activities covered by this agreement.

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"2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
"3. The following documents only, which shall be presented on demand, shall
be required in respect of United States military personnel who enter
the Philippines:
"(a) personal identity card issued by the appropriate United States
authority showing full name, date of birth, rank or grade
and service number (if any), branch of service and
photograph;
"(b) individual or collective document issued by the appropriate
United States authority, authorizing the travel or visit
and identifying the individual or group as United States
military personnel; and
"(c) the commanding officer of a military aircraft or vessel shall
present a declaration of health, and when required by the
cognizant representative of the Government of the
Philippines, shall conduct a quarantine inspection and
will certify that the aircraft or vessel is free from
quarantinable diseases. Any quarantine inspection of
United States aircraft or United States vessels or cargoes
thereon shall be conducted by the United States
commanding officer in accordance with the international
health regulations as promulgated by the World Health
Organization, and mutually agreed procedures.
"4. United States civilian personnel shall be exempt from visa requirements but
shall present, upon demand, valid passports upon entry and
departure of the Philippines
"5. If the Government of the Philippines has requested the removal of any
United States personnel from its territory, the United States
authorities shall be responsible for receiving the person concerned
within its own territory or otherwise disposing of said person
outside of the Philippines.
"Article IV
Driving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving
permit or license issued by the appropriate United States authority
to United States personnel for the operation of military or official
vehicles.
2. Vehicles owned by the Government of the United States need not be
registered, but shall have appropriate markings.

1. Subject to the provisions of this article:

(a) Philippine authorities shall have jurisdiction over United States
personnel with respect to offenses committed within the
Philippines and punishable under the law of the
Philippines. ETIcHa
(b) United States military authorities shall have the right to exercise
within the Philippines all criminal and disciplinary
jurisdiction conferred on them by the military law of the
United States over United States personnel in the
Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States
personnel with respect to offenses, including offenses relating to the
security of the Philippines, punishable under the laws of the
Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over
United States personnel with respect to offenses,
including offenses relating to the security of the United
States, punishable under the laws of the United States,
but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this
article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating
to national defense.
"3. In cases where the right to exercise jurisdiction is concurrent, the following
rules shall apply:
(a) Philippine authorities shall have the primary right to exercise
jurisdiction over all offenses committed by United
States personnel, except in cases provided for in
paragraphs 1(b), 2(b), and 3(b) of this Article.
(b) United States military authorities shall have the primary right to
exercise jurisdiction over United States personnel
subject to the military law of the United States in
relation to.
(1) offenses solely against the property or security of the
United States or offenses solely against the
property or person of United States
personnel; and
(2) offenses arising out of any act or omission done in
performance of official duty.

"Article V
Criminal Jurisdiction

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(c) The authorities of either government may request the authorities

of the other government to waive their primary right to
exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military
authorities to maintain good order and discipline among
their forces, Philippine authorities will, upon request by
the United States, waive their primary right to exercise
jurisdiction except in cases of particular importance to
the Philippines. If the Government of the Philippines
determines that the case is of particular importance, it
shall communicate such determination to the United
States authorities within twenty (20) days after the
Philippine authorities receive the United States request.
(e) When the United States military commander determines that an
offense charged by authorities o f the Philippines against
United states personnel arises out of an act or omission
done in the performance of official duty, the commander
will issue a certificate setting forth such determination.
This certificate will be transmitted to the appropriate
authorities of the Philippines and will constitute
sufficient proof of performance of official duty for the
purposes of paragraph 3(b)(2) of this Article. In those
cases where the Government of the Philippines believes
the circumstances of the case require a review of the
duty certificate, United States military authorities and
Philippine authorities shall consult immediately.
Philippine authorities at the highest levels may also
present any information bearing on its validity. United
States military authorities shall take full account of the
Philippine position. Where appropriate, United States
military authorities will take disciplinary or other action
against offenders in official duty cases, and notify the
Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise
jurisdiction, it shall notify the authorities of the other
government as soon as possible.
(g) The authorities of the Philippines and the United States shall
notify each other of the disposition of all cases in which
both the authorities of the Philippines and the United
States have the right to exercise jurisdiction.
"4. Within the scope of their legal competence, the authorities of the
Philippines and United States shall assist each other in the arrest of
United States personnel in the Philippines and in handling them
over to authorities who are to exercise jurisdiction in accordance
with the provisions of this article.
"5. United States military authorities shall promptly notify Philippine
authorities of the arrest or detention of United States personnel who
are subject of Philippine primary or exclusive jurisdiction.

Philippine authorities shall promptly notify United States military

authorities of the arrest or detention of any United States personnel.
"6. The custody of any United States personnel over whom the Philippines is
to exercise jurisdiction shall immediately reside with United States
military authorities, if they so request, from the commission of the
offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine
authorities and without delay, make such personnel available to
those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person has been
charged in extraordinary cases, the Philippine Government shall
present its position to the United States Government regarding
custody, which the United States Government shall take into full
account. In the event Philippine judicial proceedings are not
completed within one year, the United States shall be relieved of
any obligations under this paragraph. The one-year period will not
include the time necessary to appeal. Also, the one-year period will
not include any time during which scheduled trial procedures are
delayed because United States authorities, after timely notification
by Philippine authorities to arrange for the presence of the accused,
fail to do so.

"7. Within the scope of their legal authority, United States and Philippine
authorities shall assist each other in the carrying out of all necessary
investigation into offenses and shall cooperate in providing for the
attendance of witnesses and in the collection and production of
evidence, including seizure and, in proper cases, the delivery of
objects connected with an offense.
"8. When United States personnel have been tried in accordance with the
provisions of this Article and have been acquitted or have been
convicted and are serving, or have served their sentence, or have
had their sentence remitted or suspended, or have been pardoned,
they may not be tried again for the same offense in the Philippines.
Nothing in this paragraph, however, shall prevent United States
military authorities from trying United States personnel for any
violation of rules of discipline arising from the act or omission
which constituted an offense for which they were tried by
Philippine authorities.
"9. When United States personnel are detained, taken into custody, or
prosecuted by Philippine authorities, they shall be accorded all
procedural safeguards established by the law of the Philippines. At
the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or
charges made against them and to have reasonable time
to prepare a defense;

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(c) To be confronted with witnesses against them and to cross

examine such witnesses;
(d) To present evidence in their defense and to have compulsory
process for obtaining witnesses;
(e) To have free and assisted legal representation of their own
choice on the same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by
United States authorities, and to have such authorities
present at all judicial proceedings. These proceedings
shall be public unless the court, in accordance with
Philippine laws, excludes persons who have no role in
the proceedings.
"10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate
Philippine and United States authorities. United States Personnel
serving sentences in the Philippines shall have the right to visits and
material assistance.
"11. United States personnel shall be subject to trial only in Philippine courts
of ordinary jurisdiction, and shall not be subject to the jurisdiction
of Philippine military or religious courts.
"Article VI
Claims
"1. Except for contractual arrangements, including United States foreign
military sales letters of offer and acceptance and leases of military
equipment, both governments waive any and all claims against each
other for damage, loss or destruction to property of each other's
armed forces or for death or injury to their military and civilian
personnel arising from activities to which this agreement applies.
"2. For claims against the United States, other than contractual claims and
those to which paragraph 1 applies, the United States Government,
in accordance with United States law regarding foreign claims, will
pay just and reasonable compensation in settlement of meritorious
claims for damage, loss, personal injury or death, caused by acts or
omissions of United States personnel, or otherwise incident to the
non-combat activities of the United States forces.
"Article VII
Importation and Exportation
"1. United States Government equipment, materials, supplies, and other
property imported into or acquired in the Philippines by or on
behalf of the United States armed forces in connection with
activities to which this agreement applies, shall be free of all

Philippine duties, taxes and other similar charges. Title to such

property shall remain with the United States, which may remove
such property from the Philippines at any time, free from export
duties, taxes, and other similar charges. The exemptions provided in
this paragraph shall also extend to any duty, tax, or other similar
charges which would otherwise be assessed upon such property
after importation into, or acquisition within, the Philippines. Such
property may be removed from the Philippines, or disposed of
therein, provided that disposition of such property in the
Philippines to persons or entities not entitled to exemption from
applicable taxes and duties shall be subject to payment of such
taxes, and duties and prior approval of the Philippine Government.
"2. Reasonable quantities of personal baggage, personal effects, and other
property for the personal use of United States personnel may be
imported into and used in the Philippines free of all duties, taxes
and other similar charges during the period of their temporary stay
in the Philippines. Transfers to persons or entities in the Philippines
not entitled to import privileges may only be made upon prior
approval of the appropriate Philippine authorities including
payment by the recipient of applicable duties and taxes imposed in
accordance with the laws of the Philippines. The exportation of
such property and of property acquired in the Philippines by United
States personnel shall be free of all Philippine duties, taxes, and
other similar charges.
"Article VIII
Movement of Vessels and Aircraft
"1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in
accordance with procedures stipulated in implementing
arrangements.
"2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines.
The movement of vessels shall be in accordance with international
custom and practice governing such vessels; and such agreed
implementing arrangements as necessary.
"3. Vehicles, vessels, and aircraft operated by or for the United States armed
forces shall not be subject to the payment of landing or port fees,
navigation or over flight charges, or tolls or other use charges,
including light and harbor dues, while in the Philippines. Aircraft
operated by or for the United States armed forces shall observe
local air traffic control regulations while in the Philippines. Vessels
owned or operated by the United States solely on United States
Government non-commercial service shall not be subject to
compulsory pilotage at Philippine ports.
"Article IX

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Duration and Termination

"This agreement shall enter into force on the date on which the parties have
notified each other in writing through the diplomatic channel that they have
completed their constitutional requirements for entry into force. This
agreement shall remain in force until the expiration of 180 days from the date
on which either party gives the other party notice in writing that it desires to
terminate the agreement."
Via these consolidated 11 petitions for certiorari and prohibition, petitioners as legislators, nongovernmental organizations, citizens and taxpayers assail the constitutionality of the VFA and impute
to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or
legislators to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section
25, Article XVIII of the Constitution? AaIDHS
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses
committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable
by reclusion perpetua or higher?
IV
Does the VFA violate:

A party bringing a suit challenging the constitutionality of a law, act, or statute must show "not only that
the law is invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way." He must show that he has been, or is about to be, denied some right or privilege to
which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason
of the statute complained of. 14
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have
sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As
taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing
or spending powers. 15 On this point, it bears stressing that a taxpayer's suit refers to a case where the
act complained of directly involves the illegal disbursement of public funds derived from
taxation. 16 Thus, in Bugnay Const. & Development Corp. vs. Laron, 17 we held:
". . . it is exigent that the taxpayer-plaintiff sufficiently show that he would be
benefited or injured by the judgment or entitled to the avails of the suit as a
real party in interest. Before he can invoke the power of judicial review, he
must specifically prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he will sustain a direct injury
as a result of the enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all members of the
public."

Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of
any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as
taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitionerslegislators, do not possess the requisite locus standi to maintain the present suit. While this Court,
in Phil. Constitution Association vs. Hon. Salvador Enriquez, 18 sustained the legal standing of a
member of the Senate and the House of Representatives to question the validity of a presidential veto or
a condition imposed on an item in an appropriation bill, we cannot, at this instance, similarly uphold
petitioners' standing as members of Congress, in the absence of a clear showing of any direct injury to
their person or to the institution to which they belong.

b. the prohibition against nuclear weapons under Article II, Section 8?

Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of
Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners
pointed to provisions of the VFA which allegedly impair their legislative powers, petitioners failed
however to sufficiently show that they have in fact suffered direct injury.

c. Section 28 (4), Article VI of the Constitution granting the exemption from

taxes and duties for the equipment, materials, supplies and other
properties imported into or acquired in the Philippines by, or on
behalf, of the US Armed Forces?

In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases.
As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the
absence of a board resolution from its Board of Governors authorizing its National President to
commence the present action. 19

a. the equal protection clause under Section 1, Article III of the Constitution?

LOCUS STANDI
At the outset, respondents challenge petitioners' standing to sue, on the ground that the latter have not
shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or will
sustain direct injury as a result of the operation of the VFA. 12 Petitioners, on the other hand, counter
that the validity or invalidity of the VFA is a matter of transcendental importance which justifies their
standing. 13

Notwithstanding, in view of the paramount importance and the constitutional significance of the issues
raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural
barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers
Cases, 20 where we had occasion to rule:
". . . ordinary citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by President Quirino

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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 '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)." (Italics Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, 21 Daza vs.
Singson, 22 and Basco vs. Phil. Amusement and Gaming Corporation, 23where we emphatically held:
"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 the 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. . . ."
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., 24 this Court ruled that in cases of
transcendental importance, the Court may relax the standing requirements and allow a suit to prosper
even where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of
separation of powers, which enjoins upon the departments of the government a becoming respect for
each others' acts, 25 this Court nevertheless resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of
the Constitution applies, with regard to the exercise by the Senate of its constitutional power to concur
with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has
for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary,
maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but
an agreement which involves merely the temporary visits of United States personnel engaged in joint
military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on
treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:
"No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate."
Section 25, Article XVIII, provides:
"After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military Bases,
foreign military bases, troops, or facilities shall not be allowed in the
Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people
in a national referendum held for that purpose, and recognized as a treaty by
the other contracting State."
Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays

down the general rule on treaties or international agreements and applies to any form of treaty with a
wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in
nature. All treaties or international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be
valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further
requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other, actually
share some common ground. These constitutional provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause
"No treaty . . .," and Section 25 contains the phrase "shall not be allowed." Additionally, in both
instances, the concurrence of the Senate is indispensable to render the treaty or international agreement
valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the same provision, is immaterial. For in either case,
whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline
that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for
the sole purpose of determining the number of votes required to obtain the valid concurrence of the
Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment must be
taken to affect only such cases within its general language which are not within the provision of the
particular enactment. 26
In Leveriza vs. Intermediate Appellate Court, 27 we enunciated:
". . . that another basic principle of statutory construction mandates that general
legislation must give way to special legislation on the same subject, and
generally be so interpreted as to embrace only cases in which the special
provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139),
that a specific statute prevails over a general statute (De Jesus vs. People, 120
SCRA 760) and that where two statutes are of equal theoretical application to a

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particular case, the one designed therefor specially should prevail (Wil
Wilhensen Inc. vs. Baluyot, 83 SCRA 38)."
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient
agreements for the reason that there is no permanent placing of structure for the establishment of a
military base. On this score, the Constitution makes no distinction between "transient" and "permanent."
Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be
stationed or placed permanently in the Philippines.

It is a rudiment in legal hermeneutics that when no distinction is made by law the Court should not
distinguish Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling
since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA.
Notably, a perusal of said constitutional provision reveals that the proscription covers "foreign military
bases, troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and
facilities without any foreign bases being established. The clause does not refer to "foreign military
bases, troops, or facilities" collectively but treats them as separate and independent subjects. The use of
comma and the disjunctive word "or" clearly signifies disassociation and independence of one thing
from the others included in the enumeration, 28 such that, the provision contemplates three different
situations a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops,
or (c) foreign facilities any of the three standing alone places it under the coverage of Section 25,
Article XVIII. aTHASC
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this interpretation:
"MR. MAAMBONG. I just want to address a question or two to
Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or
facilities. My first question is: If the country does enter into such kind of a
treaty, must it cover the three-bases, troops or facilities or could the treaty
entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or
it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into
a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the, government can enter
into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit
more, we will find some. We just want to cover everything." 29 (Italics
Supplied)
Moreover, military bases established within the territory of another state is no longer viable because of
the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles
as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to

their home country. These military warships are actually used as substitutes for a land-home base not
only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as
compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were
complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the
following conditions are sufficiently met, viz: (a) it must be under atreaty; (b) the treaty must be duly
concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast
by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the provisions of
the Constitution, whether under the general requirement in Section 21, Article VII, or the specific
mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification
by a majority of the votes cast in a national referendum being unnecessary since Congress has not
required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of
the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly
concurred in by the Senate."
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty
the VFA, in the instant case be a "duly concurred in by the Senate," it is very true however that said
provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII,
which in more specific terms, requires that the concurrence of a treaty, or international agreement, be
made by a two-thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not
be treated in isolation to Section 21, Article, VII.
As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation
to the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the
Senate favorably vote to concur with the treaty the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24)
Senators. 30 Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16)
members, favorably acting on the proposal is an unquestionable compliance with the requisite number
of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23)
incumbent Senators at the time the voting was made, 31 will not alter in any significant way the
circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA,
even if the two-thirds vote requirement is based on this figure of actual members (23). In this regard, the
fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to
render compliance with the strict constitutional mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall
now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the
United States of America.
Petitioners contend that the phrase "recognized as a treaty," embodied in Section 25, Article XVIII,
means that the VFA should have the advice and consent of the United States Senate pursuant to its own

137

constitutional process, and that it should not be considered merely an executive agreement by the United
States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the
VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized
as a treaty by the United States of America. According to respondents, the VFA, to be binding, must
only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty. 32 To require the other contracting state, the
United States of America in this case, to submit the VFA to the United States Senate for concurrence
pursuant to its Constitution,33 is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. Its language should be understood in the sense they have in common use. 34
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement
because, under international law, an executive agreement is as binding as a treaty. 35 To be sure, as long
as the VFA possesses the elements of an agreement under international law, the said agreement is to be
taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is "an international instrument
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments, and whatever its particular
designation." 36 There are many other terms used for a treaty or international agreement, some of which
are: act, protocol, agreement, compromis d' arbitrage, concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out
that the names or titles of international agreements included under the general term treaty have little or
no legal significance. Certain terms are useful, but they furnish little more than mere description. 37
Article 2(2) of the Vienna Convention provides that "the provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice to the use of those terms, or to the meanings
which may be given to them in the internal law of the State."
Thus, in international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the negotiating functionaries have remained within their
powers. 38 International law continues to make no distinction between treaties and executive
agreements: they are equally binding obligations upon nations. 39
In our jurisdiction, we have recognized the binding effect of executive agreements even without the
concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading, 40 we
had occasion to pronounce:
". . . the right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations, mostfavored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. The validity of these
has never been seriously questioned by our courts.

"Furthermore, the United States Supreme Court has expressly recognized the
validity and constitutionality of executive agreements entered into without
Senate approval." (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs.
Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs.
Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed.
796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906;
California Law Review, Vol. 25, pp. 670-675; Hyde on International Law
[Revised Edition], Vol. 2, pp. 1405, 1416-1418; Willoughby on the
U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law
Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp.
390-407). "(Italics supplied)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening
and highly-instructive:
"MR. MAAMBONG. Of course it goes without saying that as far as ratification
of the other state is concerned, that is entirely their concern under their own
laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we
have done everything to make it a treaty, then as far as we are concerned, we
will accept it as a treaty." 41
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
stated that the United States government has fully committed to living up to the terms of the
VFA. 42 For as long as the United States of America accepts or acknowledges the VFA as a treaty, and
binds itself further to comply with its obligations under the treaty, there is indeed marked compliance
with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear and unequivocal expression of our nation's consent to be bound by said
treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed. 43 A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation. 44
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to
the ratification. 45
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes
between the Philippines and the United States of America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no
less than Section 2, Article II of the Constitution, 46 declares that the Philippines adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.

"xxx xxx xxx

138

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for
the conduct of its international relations. While the international obligation devolves upon the state and
not upon any particular branch, institution, or individual member of its government, the Philippines is
nonetheless responsible for violations committed by any branch or subdivision of its government or any
official thereof. As an integral part of the community of nations, we are responsible to assure that our
government, Constitution and laws will carry out our international obligation. 47 Hence, we cannot
readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties
and responsibilities under international law. DHaECI

of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the
President in his act of ratifying the VFA and referring the same to the Senate for the purpose of
complying with the concurrence requirement embodied in the fundamental law. In doing so, the
President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the
functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under the
provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still,
the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of
discretion in some patent, gross, and capricious manner.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: "Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in
its constitution or its laws as an excuse for failure to perform this duty." 48

For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of
judicial inquiry into areas normally left to the political departments to decide, such as those relating to
national security, it has not altogether done away with political questions such as those which arise in
the field of foreign relations. 54The High Tribunal's function, as sanctioned by Article VIII, Section 1,
"is merely (to) check whether or not the governmental branch or agency has gone beyond the
constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a
showing . . . (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective power . . . It has no power to look into what it thinks is apparent
error. 55

Equally important is Article 26 of the Convention which provides that "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." This is known as the principle
of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals. 49
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power and
performing a task conferred upon him by the Constitution the power to enter into and ratify treaties.
Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases
impute grave abuse of discretion on the part of the Chief Executive in ratifying the VFA, and referring
the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of law. 50
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President is the chief
architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then)
conceded." 51 Wielding vast powers and influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether." 52
As regards the power to enter into treaties or international agreements, the Constitution vests the same
in the President, subject only to the concurrence of at least two thirds vote of all the members of the
Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation
the Senate cannot intrude, and Congress itself is powerless to invade it. 53 Consequently, the acts or
judgment calls of the President involving the VFA specifically the acts of ratification and entering
into a treaty and those necessary or incidental to the exercise of such principal acts squarely fall
within the sphere of his constitutional powers and thus, may not be validly struck down, much less
calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Court's considered view that the President, in ratifying the VFA and in submitting the same to
the Senate for concurrence, acted within the confines and limits of the powers vested in him by
the Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion
and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution,
referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse

As to the power to concur with treaties, the Constitution lodges the same with the Senate alone. Thus,
once the Senate 56 performs that power, or exercises its prerogative within the boundaries prescribed by
the Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power,
much less grave abuse thereof. Corollarily, the Senate, in the exercise of its discretion and acting within
the limits of such power, may not be similarly faulted for having simply performed a task conferred and
sanctioned by no less than the fundamental law.

For the role of the Senate in relation to treaties is essentially legislative in character; 57 the Senate, as an
independent body possessed of its own erudite mind, has the prerogative to either accept or reject the
proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion,
pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal,
yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and
vigilantly ensures that these cherished rudiments remain true to their form in a democratic government
such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a
healthy system of checks and balances indispensable toward our nation's pursuit of political maturity
and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a
legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court
as the final arbiter of legal controversies and staunch sentinel of the rights of the people is then
without power to conduct an incursion and meddle with such affairs purely executive and legislative in
character and nature. For theConstitution no less, maps out the distinct boundaries and limits the metes
and bounds within which each of the three political branches of government may exercise the powers
exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.
SO ORDERED.
||| (Bayan v. Zamora, G.R. No. 138570, 138572, 138587, 138680, 138698, [October 10, 2000])

139

not to its supremacy, but to its mere fulfillment of its "solemn and sacred obligation" under the
Constitution. 3 This Court's power of review may be awesome, but it is limited to actual cases and
controversies dealing with parties having adversely legal claims, to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional question raised or the very lis mota
presented. 4 The "case-or-controversy" requirement bans this court from deciding "abstract, hypothetical
or contingent questions", 5 lest the court give opinions in the nature of advice concerning legislative or
executive action. 6 In the illuminating words of the learned Justice Laurel in Angara v. Electoral
Commission: 7 ISDCHA

EN BANC
[G.R. No. 187883. June 16, 2009.]
ATTY. OLIVER O. LOZANO and ATTY. EVANGELINE J. LOZANO-ENDRIANO, petitioners, vs.
SPEAKER PROSPERO C. NOGRALES, Representative, Majority, House of Representatives,
respondent.
[G.R. No. 187910. June 16, 2009.]
LOUIS "BAROK" C. BIRAOGO, petitioner, vs. SPEAKER PROSPERO C. NOGRALES, Speaker of
the House of Representatives, Congress of the Philippines, respondent.
RESOLUTION
PUNO, C.J p:
This Court, so long as the fundamentals of republicanism continue to guide it, shall not shirk its
bounden duty to wield its judicial power to settle "actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to a lack or excess of jurisdiction on the part of any branch or instrumentality of
the government." 1 Be that as it may, no amount of exigency can make this Court exercise a power
where it is not proper.
The two petitions, filed by their respective petitioners in their capacities as concerned citizens and
taxpayers, prayed for the nullification of House Resolution No. 1109 entitled "A Resolution Calling
upon the Members of Congress to Convene for the Purpose of Considering Proposals to Amend or
Revise the Constitution, Upon a Three-fourths Vote of All the Members of Congress." In essence, both
petitions seek to trigger a justiciable controversy that would warrant a definitive interpretation by this
Court of Section 1, Article XVII, which provides for the procedure for amending or revising the
Constitution. Unfortunately, this Court cannot indulge petitioners' supplications. While some may
interpret petitioners' moves as vigilance in preserving the rule of law, a careful perusal of their petitions
would reveal that they cannot hurdle the bar of justiciability set by this Court before it will assume
jurisdiction over cases involving constitutional disputes.
It is well settled that it is the duty of the judiciary to say what the law is. 2 The determination of the
nature, scope and extent of the powers of government is the exclusive province of the judiciary, such
that any mediation on the part of the latter for the allocation of constitutional boundaries would amount,

Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the legislature is presumed
to abide by the Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government.
An aspect of the "case-or-controversy" requirement is the requisite of "ripeness". In the United States,
courts are centrally concerned with whether a case involves uncertain contingent future events that may
not occur as anticipated, or indeed may not occur at all. 8 Another approach is the evaluation of the
twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship
to the parties entailed by withholding court consideration. 9 In our jurisdiction, the issue of ripeness is
generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the individual challenging it. 10 An
alternative road to review similarly taken would be to determine whether an action has already been
accomplished or performed by a branch of government before the courts may step in. 11
In the present case, the fitness of petitioners' case for the exercise of judicial review is grossly lacking.
In the first place, petitioners have not sufficiently proven any adverse injury or hardship from the act
complained of. In the second place, House Resolution No. 1109 only resolved that the House of
Representatives shall convene at a future time for the purpose of proposing amendments or revisions to
the Constitution. No actual convention has yet transpired and no rules of procedure have yet been
adopted. More importantly, no proposal has yet been made, and hence, no usurpation of power or gross
abuse of discretion has yet taken place. In short, House Resolution No. 1109 involves a quintessential
example of an uncertain contingent future event that may not occur as anticipated, or indeed may not
occur at all. The House has not yet performed a positive act that would warrant an intervention from this
Court.
Tan v. Macapagal presents a similar factual milieu. In said case, petitioners filed a petition assailing the
validity of the Laurel-Langley resolution, which dealt with the range of authority of the 1971
Constitutional Convention. The court resolved the issue thus:
More specifically, as long as any proposed amendment is still unacted on by it, there is no room for the
interposition of judicial oversight. Only after it has made concrete what it intends to submit for
ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction. That
is the command of the Constitution as interpreted by this Court. Unless and until such a doctrine loses
force by being overruled or a new precedent being announced, it is controlling. It is implicit in the rule
of law. 12 ESHAIC
Yet another requisite rooted in the very nature of judicial power is locus standi or standing to sue. Thus,
generally, a party will be allowed to litigate only when he can demonstrate that (1) he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the

140

remedy being sought. 13 In the cases at bar, petitioners have not shown the elemental injury in fact that
would endow them with the standing to sue. Locus standi requires a personal stake in the outcome of a
controversy for significant reasons. It assures adverseness and sharpens the presentation of issues for the
illumination of the Court in resolving difficult constitutional questions. 14 The lack of petitioners'
personal stake in this case is no more evident than in Lozano's three-page petition that is devoid of any
legal or jurisprudential basis.

SO ORDERED. HAIaEc
||| (Lozano v. Nograles, G.R. No. 187883, 187910, [June 16, 2009], 607 PHIL 334-344)

Neither can the lack of locus standi be cured by the claim of petitioners that they are instituting the cases
at bar as taxpayers and concerned citizens. A taxpayer's suit requires that the act complained of directly
involves the illegal disbursement of public funds derived from taxation. 15 It is undisputed that there
has been no allocation or disbursement of public funds in this case as of yet. To be sure, standing as a
citizen has been upheld by this Court in cases where a petitioner is able to craft an issue of
transcendental importance or when paramount public interest is involved. 16 While the Court recognizes
the potential far-reaching implications of the issue at hand, the possible consequence of House
Resolution No. 1109 is yet unrealized and does not infuse petitioners with locus standi under the
"transcendental importance" doctrine.
The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from
Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only "actual
controversies involving rights which are legally demandable and enforceable." As stated in Kilosbayan,
Incorporated v. Guingona, Jr., 17 viz.:

EN BANC
[G.R. No. 171396. May 3, 2006.]

. . . [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open
their doors to all parties or entities claiming a grievance. The rationale for this constitutional
requirement of locus standi is by no means trifle. It is intended "to assure a vigorous adversary
presentation of the case, and, perhaps more importantly to warrant the judiciary's overruling the
determination of a coordinate, democratically elected organ of government." It thus goes to the very
essence of representative democracies.
xxx xxx xxx
A lesser but not insignificant reason for screening the standing of persons who desire to litigate
constitutional issues is economic in character. Given the sparseness of our resources, the capacity of
courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately
open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and
ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly
confronts our judiciary today.
Moreover, while the Court has taken an increasingly liberal approach to the rule of locus standi,
evolving from the stringent requirements of "personal injury" to the broader "transcendental
importance" doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and
the ignoble to file petitions that prove nothing but their cerebral deficit.

In the final scheme, judicial review is effective largely because it is not available simply at the behest of
a partisan faction, but is exercised only to remedy a particular, concrete injury. 18 When warranted by
the presence of indispensible minimums for judicial review, this Court shall not shun the duty to resolve
the constitutional challenge that may confront it.
IN VIEW WHEREOF, the petitions are dismissed.

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L.

ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL
REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, petitioners, vs. GLORIA
MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE
SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, respondents.
[G.R. No. 171409. May 3, 2006.]
NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., petitioners, vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL
ARTURO C. LOMIBAO, respondents.
[G.R. No. 171485. May 3, 2006.]
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A.
AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L.
MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO
GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER
COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, petitioners, vs. EDUARDO R. ERMITA,
EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP, respondents.

141

[G.R. No. 171483. May 3, 2006.]

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND
SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONSKILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, petitioners, vs. HER
EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, respondents.

trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances
are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with
the degree of law, without which, liberty becomes license? 3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:

[G.R. No. 171489. May 3, 2006.]

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress . . . rebellion. . . ," and in
my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction; and as provided in Section
17, Article 12 of the Constitution do hereby declare a State of National Emergency.

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M.

AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO
ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, respondents.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists the historical enemies of the democratic Philippine State who are now in
a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring
down the duly constituted Government elected in May 2004;

[G.R. No. 171424. May 3, 2006.]

WHEREAS, these conspirators have repeatedly tried to bring down the President;

LOREN B. LEGARDA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS

PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA,
IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP);
AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, respondents.

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;

[G.R. No. 171400. May 3, 2006.]

ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs. EXECUTIVE SECRETARY EDUARDO
R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO,
respondents.

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including
hindering the growth of the economy and sabotaging the people's confidence in government and their
faith in the future of this country;

DECISION
WHEREAS, these actions are adversely affecting the economy;
SANDOVAL-GUTIERREZ, J p:
All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior
strength the use of force cannot make wrongs into rights. In this regard, the courts should be
vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He said: "In cases
involving liberty, the scales of justice should weigh heavily against government and in favor of the poor,
the oppressed, the marginalized, the dispossessed and the weak." Laws and actions that restrict
fundamental rights come to the courts "with a heavy presumption against their constitutional validity." 2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria MacapagalArroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the
Government, in their professed efforts to defend and preserve democratic institutions, are actually

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people; SHECcD
On the same day, the President issued G.O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists the historical enemies of the democratic Philippine State and

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who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly-constituted Government elected in May 2004;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including
hindering the growth of the economy and sabotaging the people's confidence in the government and
their faith in the future of this country;

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was the conspiracy among some military officers, leftist
insurgents of the New People's Army (NPA), and some members of the political opposition in a plot to
unseat or assassinate President Arroyo. 4 They considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and present danger.

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the
Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby
call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to
prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of
the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence. CaATDE
On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all
these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which
reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24, 2006, which were issued on
the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may
be necessary;

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the
issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners' counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed forces. He emphasized that none of the
petitioners has shown that PP 1017 was without factual bases. While he explained that it is not
respondents' task to state the facts behind the questioned Proclamation, however, they are presenting the
same, narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San
Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped
their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant
and to elude arrest at all costs. They called upon the people to "show and proclaim our displeasure at the
sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I" which detailed
plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio
City. The plot was to assassinate selected targets including some cabinet members and President Arroyo
herself. 6 Upon the advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the
PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province.
Found in his possession were two (2) flash disks containing minutes of the meetings between members
of the Magdalo Group and the National People's Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents. 7 Prior to his arrest, Lt. San Juan announced through
DZRH that the "Magdalo's D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."
TAaIDH
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNPSpecial Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and trustworthy officers with
proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino's
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic,
called a U.S. government official about his group's plans if President Arroyo is ousted. Saycon also

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phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the
Army's elite Scout Ranger. Lim said "it was all systems go for the planned movement against Arroyo." 8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga,
Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join
the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on
February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of
command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military
and the police establishments in order to forge alliances with its members and key officials. NPA
spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary movement
and the entire people look forward to the possibility in the coming year of accomplishing its immediate
task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not
take much longer to end it." 9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing
rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He claimed that with the forces of
the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the
groups that have been reinforcing since June 2005, it is probable that the President's ouster is nearing its
concluding stage in the first half of 2006. AcDaEH
Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan
and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5.
So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the
directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro
Manila radicals and 25,000 more from the provinces in mass protests. 10
By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the AFP
and the PNP to account for all their men and ensure that the chain of command remains solid and
undivided. To protect the young students from any possible trouble that might break loose on the streets,
the President suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and activities
related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold
rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President's mind were organized for purposes of destabilization, are cancelled.
Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of
facilities, including media, can already be implemented." 11
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of
protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang
Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by
huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields,

water cannons, and tear gas to stop and break up the marching groups, and scatter the massed
participants. The same police action was used against the protesters marching forward to Cubao,
Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot
policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in
Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of
their assemblies. TacSAE
During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S.
David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and
Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune
offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and
mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the
editorial and business offices of the newspaper; while policemen from the Manila Police District were
stationed outside the building. 13

A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in bringing down
this government." The PNP warned that it would take over any media organization that would not
follow "standards set by the government during the state of national emergency." Director General
Lomibao stated that "if they do not follow the standards and the standards are if they would
contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5
and Proc. No. 1017 we will recommend a 'takeover.'" National Telecommunications' Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of
the state of national emergency. He asked for "balanced reporting" from broadcasters when covering the
events surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage
when the national security is threatened. 14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the
Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran's lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not
be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the
rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public
forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into
custody.

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Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while
with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano,
Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna
Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned
over to the custody of the House of Representatives where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur
Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has
ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5
were filed with this Court against the above-named respondents. Three (3) of these petitions impleaded
President Arroyo as respondent.

as freedom of the press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these
issuances prevented her from fully prosecuting her election protest pending before the Presidential
Electoral Tribunal. IaESCH
In respondents' Consolidated Comment, the Solicitor General countered that: first, the petitions should
be dismissed for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda),
171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it
is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has
constitutional and legal basis; and fifth, PP 1017 does not violate the people's right to free expression
and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard petitioners on the above interlocking
issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly. HDTISa

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.),
171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the
CIDG's act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They
also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one
(21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael
Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5
constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a declaration of
martial law." They alleged that President Arroyo "gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that
there is necessity to do so."
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and
G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws
and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and
the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No.
5 are unconstitutional because they violate (a) Section 4 15 of Article II, (b) Sections 1, 16 2, 17 and 4
18 of Article III, (c) Section 23 19 of Article VI, and (d) Section 17 20 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and
unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is not really
a declaration of Martial Law, petitioners argued that "it amounts to an exercise by the President of
emergency powers without congressional approval." In addition, petitioners asserted that PP 1017 "goes
beyond the nature and function of a proclamation as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5
are "unconstitutional for being violative of the freedom of expression, including its cognate rights such

1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of judicial
review enunciated in Marbury v. Madison. 21 This concept rests on the extraordinary simple foundation

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. . . . If the government consciously or
unconsciously oversteps these limitations there must be some authority competent to hold it in control,
to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people
as expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the
theory of judicial review. 22
But the power of judicial review does not repose upon the courts a "self-starting capacity." 23 Courts
may exercise such power only when the following requisites are present: first, there must be an actual
case or controversy; second, petitioners have to raise a question of constitutionality; third, the

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constitutional question must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case itself. 24

In view of the number of petitioners suing in various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing or locus standi.

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion
thereon. HICSTa

Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In private
suits, standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every action must be prosecuted or
defended in the name of the real party in interest." Accordingly, the "real-party-in interest" is "the party
who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit." 38 Succinctly put, the plaintiff's standing is based on his own right to the relief sought.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of
judicial resolution. It is "definite and concrete, touching the legal relations of parties having adverse
legal interest;" a real and substantial controversy admitting of specific relief. 25 The Solicitor General
refutes the existence of such actual case or controversy, contending that the present petitions were
rendered "moot and academic" by President Arroyo's issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, 26 so that a declaration thereon would be of no practical use or value. 27 Generally,
courts decline jurisdiction over such case 28 or dismiss it on ground of mootness. 29

The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions moot
and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in the
present petitions. It must be stressed that "an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation, inoperative." 30
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts
in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; 31 second, the exceptional character of the situation and the paramount
public interest is involved; 32 third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; 33 and fourth, the case is capable of repetition yet
evading review. 34
All the foregoing exceptions are present here and justify this Court's assumption of jurisdiction over the
instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the
Constitution. There is no question that the issues being raised affect the public's interest, involving as
they do the people's basic rights to freedom of expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has
the symbolic function of educating the bench and the bar, and in the present petitions, the military and
the police, on the extent of the protection given by constitutional guarantees. 35 And lastly, respondents'
contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
Panganiban's Separate Opinion in Sanlakas v. Executive Secretary. 36 However, they failed to take into
account the Chief Justice's very statement that an otherwise "moot" case may still be decided "provided
the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct
result of its issuance." The present case falls right within this exception to the mootness rule pointed out
by the Chief Justice.
II Legal Standing

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public
right" in assailing an allegedly illegal official action, does so as a representative of the general public.
He may be a person who is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or 'taxpayer." In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or "taxpayer. cCEAHT
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The
distinction was first laid down in Beauchamp v. Silk, 39 where it was held that the plaintiff in a
taxpayer's suit is in a different category from the plaintiff in a citizen's suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: 40 "In matter
of mere public right, however . . . the people are the real parties. . . It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued and punished, and that a
public grievance be remedied." With respect to taxpayer's suits, Terr v. Jordan 41 held that "the right of a
citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his
injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any official policy or act
with which he disagreed with, and thus hinders the activities of governmental agencies engaged in
public service, the United State Supreme Court laid down the more stringent "direct injury" test in Ex
Parte Levitt, 42 later reaffirmed in Tileston v. Ullman. 43 The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an executive or legislative action, he
must show that he has sustained a direct injury as a result of that action, and it is not sufficient that he
has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, 44 it held that the
person who impugns the validity of a statute must have "a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, 45 Manila Race Horse Trainers' Association
v. De la Fuente, 46 Pascual v. Secretary of Public Works 47 and Anti-Chinese League of the Philippines
v. Felix. 48
However, being a mere procedural technicality, the requirement of locus standi may be waived by the
Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan, 49 where the "transcendental importance" of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec, 50 this Court resolved to pass
upon the issues raised due to the "far-reaching implications" of the petition notwithstanding its
categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and
civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations
and rulings. 51

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Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they
have been allowed to sue under the principle of "transcendental importance." Pertinent are the following
cases:

In Lacson v. Perez, 58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino
(LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders,
members or supporters.

(1) Chavez v. Public Estates Authority, 52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus standi;

In Sanlakas v. Executive Secretary, 59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the President's declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to
petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.

(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that "given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary, 54 while the Court noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress' taxing
or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora, 55 that in cases
of transcendental importance, the cases must be settled promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The
same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc.
They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers.
They also raised the issue of whether or not the concurrence of Congress is necessary whenever the
alarming powers incident to Martial Law are used. Moreover, it is in the interest of justice that those
affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court
the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez, 60
Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 61 Association of Small
Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 62 Basco v. Philippine Amusement
and Gaming Corporation, 63 and Taada v. Tuvera, 64 that 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.

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators. STADIH
Significantly, recent decisions show a certain toughening in the Court's attitude toward legal standing.
In Kilosbayan, Inc. v. Morato, 56 the Court ruled that the status of Kilosbayan as a people's organization
does not give it the requisite personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any
allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege
any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, 57 the Court
reiterated the "direct injury" test with respect to concerned citizens' cases involving constitutional issues.
It held that "there must be a showing that the citizen personally suffered some actual or threatened
injury arising from the alleged illegal official act."

In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to
assert the rights of their members. 65 We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies following the issuance of PP
1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the
IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and
G.O. No. 5. In Integrated Bar of the Philippines v. Zamora, 66 the Court held that the mere invocation
by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the transcendental importance of the issue, this
Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there
are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not
likewise aid her because there was no showing that the enforcement of these issuances prevented her
from pursuing her occupation. Her submission that she has pending electoral protest before the
Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017
will affect the proceedings or result of her case. But considering once more the transcendental
importance of the issue involved, this Court may relax the standing rules.

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It must always be borne in mind that the question of locus standi is but corollary to the bigger question
of proper exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on
legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial
question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling of this Court on this very critical
matter. The petitions thus call for the application of the "transcendental importance" doctrine, a
relaxation of the standing requirements for the petitioners in the "PP 1017 cases."
This Court holds that all the petitioners herein have locus standi. aETDIc
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the
President, during his tenure of office or actual incumbency, 67 may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court litigations while serving
as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official duties and functions. Unlike
the legislative and judicial branch, only one constitutes the executive branch and anything which
impairs his usefulness in the discharge of the many great and important duties imposed upon him by the
Constitution necessarily impairs the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains accountable to the people 68
but he may be removed from office only in the mode provided by law and that is by impeachment. 69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President
Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President's exercise of his
Commander-in-Chief power has reached its distilled point from the indulgent days of Barcelon v.
Baker 70 and Montenegro v. Castaneda 71 to the volatile era of Lansang v. Garcia, 72 Aquino, Jr. v.
Enrile, 73 and Garcia-Padilla v. Enrile. 74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government." 75 Barcelon and Montenegro were
in unison in declaring that the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang took the opposite view. There,
the members of the Court were unanimous in the conviction that the Court has the authority to inquire
into the existence of factual bases in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the system of checks and balances, "under
which the President is supreme, . . . only if and when he acts within the sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme." 76 In 1973, the unanimous
Court of Lansang was divided in Aquino v. Enrile. 77 There, the Court was almost evenly divided on the
issue of whether the validity of the imposition of Martial Law is a political or justiciable question. 78
Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to reexamine the latter case, ratiocinating that "in times of war or national emergency, the President must be
given absolute control for the very life of the nation and the government is in great peril. The President,
it intoned, is answerable only to his conscience, the People, and God." 79
The Integrated Bar of the Philippines v. Zamora 80 a recent case most pertinent to these cases at bar
echoed a principle similar to Lansang. While the Court considered the President's "calling-out"
power as a discretionary power solely vested in his wisdom, it stressed that "this does not prevent an
examination of whether such power was exercised within permissible constitutional limits or whether it

was exercised in a manner constituting grave abuse of discretion." This ruling is mainly a result of the
Court's reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the
courts to determine in an appropriate action the validity of the acts of the political departments. Under
the new definition of judicial power, the courts are authorized not only "to settle actual controversies
involving rights which are legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." The latter part of the authority represents a broadening of
judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the
discretion of the political departments of the government. 81 It speaks of judicial prerogative not only in
terms of power but also of duty. 82
As to how the Court may inquire into the President's exercise of power, Lansang adopted the test that
"judicial inquiry can go no further than to satisfy the Court not that the President's decision is correct,"
but that "the President did not act arbitrarily." Thus, the standard laid down is not correctness, but
arbitrariness. 83 In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon
the petitioner to show that the President's decision is totally bereft of factual basis" and that if he fails,
by way of proof, to support his assertion, then "this Court cannot undertake an independent investigation
beyond the pleadings."

Petitioners failed to show that President Arroyo's exercise of the calling-out power, by issuing PP 1017,
is totally bereft of factual basis. A reading of the Solicitor General's Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing alliance between
the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military
aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her
arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or
rebellion. However, the exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for our
ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law
enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action
necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription of the law and sometimes even
against it." 84 But Locke recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse be

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avoided?Here, Locke readily admitted defeat, suggesting that "the people have no other remedy in this,
as in all other cases where they have no judge on earth, but to appeal to Heaven." 85

determine the need for dictatorship in any given case must never rest with the dictator himself . . ." 94
and the objective of such an emergency dictatorship should be "strict political conservatism." HCacDE

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of
government in time of emergency. According to him:

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of
concentrating power in a government where power has consciously been divided to cope with . . .
situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for how long, and to what end."
96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to
wit: "The emergency executive must be appointed by constitutional means i.e., he must be legitimate;
he should not enjoy power to determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of emergency action must be the defense
of the constitutional order." 97

The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in
certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State.
..
It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend
their operation. Even Sparta allowed its law to lapse. . .
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the
method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will, and it clear that the people's
first intention is that the State shall not perish. 86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it.
For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an
"appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship. 87
John Stuart Mill concluded his ardent defense of representative government: "I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary
dictatorship." 88
Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus: AScHCD

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of
"constitutional dictatorship" as solution to the vexing problems presented by emergency. 98 Like
Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:
1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State and its constitutional order. . .
2) . . . the decision to institute a constitutional dictatorship should never be in the hands of the man or
men who will constitute the dictator. . .
3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination. . .
4) . . . all uses of emergency powers and all readjustments in the organization of the government should
be effected in pursuit of constitutional or legal requirements. . .

Now, in a well-ordered society, it should never be necessary to resort to extra-constitutional measures;

for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it. 89

5) . . . no dictatorial institution should be adopted, no right invaded, no regular procedure altered any
more than is absolutely necessary for the conquest of the particular crisis . . .

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in
time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve
of power and speed and vigor in its application in time of emergency, with effective constitutional
restraints. 90

7) The dictatorship should be carried on by persons representative of every part of the citizenry
interested in the defense of the existing constitutional order. . .

Contemporary political theorists, addressing themselves to the problem of response to emergency by

constitutional democracies, have employed the doctrine of constitutional dictatorship. 91 Frederick M.
Watkins saw "no reason why absolutism should not be used as a means for the defense of liberal
institutions," provided it "serves to protect established institutions from the danger of permanent injury
in a period of temporary emergency and is followed by a prompt return to the previous forms of political
life." 92 He recognized the two (2) key elements of the problem of emergency governance, as well as all
constitutional governance: increasing administrative powers of the executive, while at the same time
"imposing limitation upon that power." 93 Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: "The period of dictatorship must
be relatively short. . . Dictatorship should always be strictly legitimate in character. . . Final authority to

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never
be in the hands of the man or men who constitute the dictator. . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
permanent in character or effect. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted. . .
11) the termination of the crisis must be followed by a complete return as possible to the political and
governmental conditions existing prior to the initiation of the constitutional dictatorship. . . 99

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Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did
Watkins. He would secure to Congress final responsibility for declaring the existence or termination of
an emergency, and he places great faith in the effectiveness of congressional investigating committees.
100
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in
saying that, "the suggestion that democracies surrender the control of government to an authoritarian
ruler in time of grave danger to the nation is not based upon sound constitutional theory." To appraise
emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term "dictator" is used in its normal sense (as applied to
authoritarian rulers) or is employed to embrace all chief executives administering emergency powers.
However used, "constitutional dictatorship" cannot be divorced from the implication of suspension of
the processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism"
articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency

powers, and which is consistent with the findings of this study, is that formulated by Charles H.
McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural limitations, and political
responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in
discussing the meaning of constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping government responsible. He
refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He found that the really
effective checks on despotism have consisted not in the weakening of government but, but rather in the
limiting of it; between which there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak" government, McIlwain meant
government limited to the orderly procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are
the legal limits to arbitrary power and a complete political responsibility of government to the governed.
101

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces"
statutes in free speech cases, also known under the American Law as First Amendment cases. 103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United
States v. Salerno, 104 the US Supreme Court held that "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected
conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered "harmful" and
"constitutionally unprotected conduct." In Broadrick v. Oklahoma, 105 it was held:
It remains a 'matter of no little difficulty' to determine when a law may properly be held void on its face
and when 'such summary action' is inappropriate. But the plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the
State to sanction moves from 'pure speech' toward conduct and that conduct even if expressive
falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek
to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." 106 Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct,
not free speech, which is manifestly subject to state regulation.

In the final analysis, the various approaches to emergency of the above political theorists from Lock's
"theory of prerogative," to Watkins' doctrine of "constitutional dictatorship" and, eventually, to
McIlwain's "principle of constitutionalism" ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while
insuring that such powers will be exercised with a sense of political responsibility and under effective
limitations and checks. SADECI

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly
and only as a last resort," and is "generally disfavored;" 107 The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle that a person to whom a law
may be applied will not be heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. 108 A writer and scholar in
Constitutional Law explains further:

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government
in the concept of Justice Jackson's "balanced power structure." 102 Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is
supreme within its own sphere. But none has the monopoly of power in times of emergency. Each
branch is given a role to serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other words, in times of
emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within
carefully prescribed procedural limitations.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law's "very existence may cause others not
before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling
is designed to remove that deterrent effect on the speech of those third parties.

a. "Facial Challenge"

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In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP
1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris, 109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed law may
be valid. Here, petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted. STaCIA
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its
application." 110 It is subject to the same principles governing overbreadth doctrine. For one, it is also
an analytical tool for testing "on their faces" statutes in free speech cases. And like overbreadth, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to
establish that men of common intelligence cannot understand the meaning and application of PP 1017.

The first provision pertains to the President's calling-out power. In Sanlakas v. Executive Secretary, 111
this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution
reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.

The operative portion of PP 1017 may be divided into three important provisions, thus:

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

First provision:
"by virtue of the power vested upon me by Section 18, Article VII . . . do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well any act of insurrection or rebellion"

Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency."
First Provision: Calling-out Power

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the
least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas
corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora, 112
the Court ruled that the only criterion for the exercise of the calling-out power is that "whenever it
becomes necessary," the President may call the armed forces "to prevent or suppress lawless violence,
invasion or rebellion." Are these conditions present in the instant cases? As stated earlier, considering
the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her
Office's vast intelligence network, she is in the best position to determine the actual condition of the
country.
Under the calling-out power, the President may summon the armed forces to aid him in suppressing
lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes
beyond the President's calling-out power is considered illegal or ultra vires. For this reason, a President
must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act
under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are
the limitations.
It is pertinent to state, however, that there is a distinction between the President's authority to declare a
"state of rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While
President Arroyo's authority to declare a "state of rebellion" emanates from her powers as Chief

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Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987, which provides:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.
President Arroyo's declaration of a "state of rebellion" was merely an act declaring a status or condition
of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the
words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on
Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State's
extraordinary power to take over privately-owned public utility and business affected with public
interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation
cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas.
DHIETc
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is
no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President
invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon
by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law." 113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V.
Mendoza, 114 an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It
is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the purpose of enabling him to
secure the people from harm and to restore order so that they can enjoy their individual freedoms. In
fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by
the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to
justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose
is a perversion of its nature and scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d)
issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-inChief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely
an exercise of President Arroyo's calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully
executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He
shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, 115 the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all
laws are enforced by the officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the Philippines, he will, among
others, "execute its laws." 116 In the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed forces of the country, 117
including the Philippine National Police 118 under the Department of Interior and Local Government.
119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano,
Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated
upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the clause "to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction."

Petitioners' contention is understandable. A reading of PP 1017 operative clause shows that it was lifted
120 from Former President Marcos' Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the
powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place
the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause
states: "to enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees . . . promulgated by me
personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following: DHATcE

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Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated in
executive orders.

The import of this provision is that President Arroyo, during the state of national emergency under PP
1017, can call the military not only to enforce obedience "to all the laws and to all decrees . . ." but also
to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative
orders.

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public interest.

Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.

What could be the reason of President Arroyo in invoking the above provision when she issued PP
1017?

Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration,
which the President desires to bring to the attention of all or some of the departments, agencies, bureaus
or offices of the Government, for information or compliance, shall be embodied in memorandum
circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.
President Arroyo's ordinance power is limited to the foregoing issuances. She cannot issue decrees
similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which
are of the same category and binding force as statutes because they were issued by the President in the
exercise of his legislative power during the period of Martial Law under the 1973 Constitution. 121

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant
the President, without any authority or delegation from Congress, to take over or direct the operation of
any privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking
of the 1971 Constitutional Convention. 122 In effect at the time of its approval was President Marcos'
Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to
take over "the management, control and operation of the Manila Electric Company, the Philippine Long
Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine
National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives, claim that President Arroyo's
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature's emergency
powers.
This is an area that needs delineation. DIEcHa

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate "decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives." To be sure,
neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo's
exercise of legislative power by issuing decrees.

A distinction must be drawn between the President's authority to declare "a state of national emergency"
and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants
the President such power, hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:

Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military
to enforce or implement certain laws, such as customs laws, laws governing family and property
relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017,
to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
. . . and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by
me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do
hereby declare a state of national emergency.

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to war but also to
"other national emergency." If the intention of the Framers of our Constitution was to withhold from the
President the authority to declare a "state of national emergency" pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then
the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the
President before he can declare a "state of national emergency." The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national emergency even in the
absence of a Congressional enactment.

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But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same
subject matter will be construed together and considered in the light of each other. 123 Considering that
Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies,
they must be read together to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23
(2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate
a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible
or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it
wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.

the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws
he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States. . ." 126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers
to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of
existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions
are the elements of intensity, variety, and perception. 127 Emergencies, as perceived by legislature or
executive in the United States since 1933, have been occasioned by a wide range of situations,
classifiable under three (3) principal heads: a) economic, 128 b) natural disaster, 129 and c) national
security. 130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect. 131 This is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee's definition of "national emergency" which appears in
Section 13, page 5? It reads:

(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress. 124
Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking
over of private business affected with public interest is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest," it refers to Congress, not
the President. Now, whether or not the President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown
Sheet & Tube Co. et al. v. Sawyer, 125 held:
It is clear that if the President had authority to issue the order he did, it must be found in some provision
of the Constitution. And it is not claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II which say that "The
executive Power shall be vested in a President . . . . ;" that "he shall take Care that the Laws be faithfully
executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the United States.

When the common good so requires, the State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural
disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?
TcIaHC
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service. 132
xxx xxx xxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency
or could this be economic emergency?"

The order cannot properly be sustained as an exercise of the President's military power as Commanderin-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding
broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases
need not concern us here. Even though "theater of war" be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the
ultimate power as such to take possession of private property in order to keep labor disputes from
stopping production. This is a job for the nation's lawmakers, not for its military authorities.

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the President's power to see that

In Araneta v. Dinglasan, 134 this Court emphasized that legislative power, through which extraordinary
measures are exercised, remains in Congress even in times of crisis.

MR. TINGSON. Thank you very much. 133

It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.

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"xxx xxx xxx

After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws
been surrendered to another department unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that Republic was fighting a
total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that
under our concept of constitutional government, in times of extreme perils more than in normal
circumstances 'the various branches, executive, legislative, and judicial,' given the ability to act, are
called upon 'to perform the duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017,
this Court rules that such Proclamation does not authorize her during the emergency to temporarily take
over or direct the operation of any privately owned public utility or business affected with public
interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency, however,
without legislation, he has no power to take over privately-owned public utility or business affected with
public interest. The President cannot decide whether exceptional circumstances exist warranting the take
over of privately-owned public utility or business affected with public interest. Nor can he determine
when such exceptional circumstances have ceased. Likewise, without legislation, the President has no
power to point out the types of businesses affected with public interest that should be taken over. In
short, the President has no absolute authority to exercise all the powers of the State under Section 17,
Article VII in the absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in
the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I.
The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three
policemen were assigned to guard their office as a possible "source of destabilization." Again, the basis
was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th
Anniversary of People Power I.

A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017. EHaDIC
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In
general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused
and misabused 135 and may afford an opportunity for abuse in the manner of application. 136 The
validity of a statute or ordinance is to be determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular case. 137 PP 1017 is merely an invocation
of the President's calling-out power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President
Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to
conduct illegal arrest, search or violate the citizens' constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance
is to be measured is the essential basis for the exercise of power, and not a mere incidental result arising
from its exertion. 138 This is logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily. If this were so,
judging from the blunders committed by policemen in the cases passed upon by the Court, majority of
the provisions of the Revised Penal Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are
"acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines." They are internal rules issued by the executive officer to his subordinates precisely for the
proper and efficient administration of law. Such rules and regulations create no relation except between
the official who issues them and the official who receives them. 139 They are based on and are the
product of, a relationship in which power is their source, and obedience, their object. 140 For these
reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary or
capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and
which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is
still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts
not only our country, but the international community as well. The following observations are quite
apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has become one of
the basic slogans when it comes to the justification of the use of force against certain states and against
groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are
set up and constantly being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.

155

The basic problem underlying all these military actions or threats of the use of force as the most
recent by the United States against Iraq consists in the absence of an agreed definition of terrorism.

being marginalized; and the problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States. 141

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states,
by armed groups such as liberation movements, or by individuals.

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the
police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet
the military or the police may consider the act as an act of terrorism and immediately arrest them
pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered
that an act can only be considered a crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.

The dilemma can by summarized in the saying "One country's terrorist is another country's freedom
fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may further
be demonstrated by the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only
a few, were originally labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those acts
from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate "terrorism" with any violent act by non-state
groups against civilians, state functionaries or infrastructure or military installations, and those who
believe in the concept of the legitimate use of force when resistance against foreign occupation or
against systematic oppression of ethnic and/or religious groups within a state is concerned. CSIcTa
The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO)
which is a terrorist group for Israel and a liberation movement for Arabs and Muslims the Kashmiri
resistance groups who are terrorists in the perception of India, liberation fighters in that of Pakistan
the earlier Contras in Nicaragua freedom fighters for the United States, terrorists for the Socialist
camp or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during
the Cold War period they were a group of freedom fighters for the West, nurtured by the United States,
and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of
conflicting categorizations that cannot be reconciled in any way because of opposing political
interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and
the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of
an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the
definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will therefore speak of a "liberation struggle,"
not of "terrorism" when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every
instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the terroristsfreedom fighter dichotomy. A "policy of double standards" on this vital issue of international affairs has
been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states and not of peoples,
in spite of the emphasis in the Preamble to the United Nations Charter! has become even more
serious in the present global power constellation: one superpower exercises the decisive role in the
Security Council, former great powers of the Cold War era as well as medium powers are increasingly

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January
16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled "Codifying
The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations." The word "terrorism" is mentioned in the following provision: "That one who conspires
with any other person for the purpose of overthrowing the Government of the Philippines . . . by force,
violence, terrorism, . . . shall be punished by reclusion temporal . . . ."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines)
enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts
of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo alone, under G.O.
No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all
assemblies and gatherings unfriendly to the administration. All these can be effected in the name of G.O.
No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due
process clause of the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O.
No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of their
authority in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their persons, houses, papers and
effects against unreasonable search and seizure of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized." 142 The plain import of the language of the Constitution is that searches, seizures
and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of
arrest. Thus, the fundamental protection given by this provision is that between person and police must
stand the protective authority of a magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest. 143

In the Brief Account 144 submitted by petitioner David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was
brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth, he was treated brusquely by policemen who "held his head and tried to push
him" inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880

156

145 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was eventually
released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
xxx xxx xxx.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless arrest. During
the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers
could invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust
Gloria Now" and their erroneous assumption that petitioner David was the leader of the rally. 146
Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of
evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing
it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is
insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner
David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the government for redress of grievances. IEHScT
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right of
speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In
other words, like other rights embraced in the freedom of expression, the right to assemble is not subject
to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is intended to be held in
a public place, a permit for the use of such place, and not for the assembly itself, may be validly
required.
The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right
to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and
present danger that warranted the limitation of that right. As can be gleaned from circumstances, the
charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor
General, during the oral argument, failed to justify the arresting officers' conduct. In De Jonge v.
Oregon, 148 it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings

cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but as to its
purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they
may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when
the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on
the basis of Malacaang's directive canceling all permits previously issued by local government units.
This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle
that "freedom of assembly is not to be limited, much less denied, except on a showing of a clear and
present danger of a substantive evil that the State has a right to prevent." 149 Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a clear and present danger
that the State may deny the citizens' right to exercise it. Indeed, respondents failed to show or convince
the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due notice and
hearing on the determination of the presence of clear and present danger. Here, petitioners were not even
notified and heard on the revocation of their permits. 150 The first time they learned of it was at the time
of the dispersal. Such absence of notice is a fatal defect. When a person's right is restricted by
government action, it behooves a democratic government to see to it that the restriction is fair,
reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom
of the press. Petitioners' narration of facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune's offices were searched without warrant; second, the police operatives
seized several materials for publication; third, the search was conducted at about 1:00 o'clock in the
morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the
Daily Tribune except the security guard of the building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was "meant to show a 'strong presence,' to tell media
outlets not to connive or do anything that would help the rebels in bringing down this government."
Director General Lomibao further stated that "if they do not follow the standards and the standards
are if they would contribute to instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 we will recommend a 'takeover.'" National
Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate"
with the government for the duration of the state of national emergency. He warned that his agency will
not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage during times when the national security is threatened. 151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the
conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the
search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or

157

any member of his family or in the absence of the latter, in the presence of two (2) witnesses of
sufficient age and discretion residing in the same locality. And Section 9states that the warrant must
direct that it be served in the daytime, unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be served at any time of the day or night. All
these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners' freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff
152 this Court held that

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1 o'clock in the morning and without any search warrant? Did
they become suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan
Mail" and the "We Forum" newspapers. As a consequence of the search and seizure, these premises
were padlocked and sealed, with the further result that the printing and publication of said newspapers
were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political enlightenment and growth of the citizenry.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on
Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the
police could go and inspect and gather clippings from Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and
"We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded
their enforcement duties. The search and seizure of materials for publication, the stationing of
policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government
officials to media, are plain censorship. It is that officious functionary of the repressive government who
tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is
permitted to say on pain of punishment should he be so rash as to disobey. 153 Undoubtedly, the The
Daily Tribune was subjected to these arbitrary intrusions because of its anti-government sentiments.
This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most
defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon. The motto should always be obsta principiis.
154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribune's
offices and the seizure of its materials for publication and other papers are illegal; and that the same are
inadmissible "for any purpose," thus: cIaHDA
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune
for the purpose of gathering evidence and you admitted that the policemen were able to get the
clippings. Is that not in admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and
these are inadmissible for any purpose. 155

Is it based on any law?

SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is premature to say this, we do
not condone this. If the people who have been injured by this would want to sue them, they can sue and
there are remedies for this. 156
Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor
General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don't know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their responsibility. 157

158

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and
"should result in no constitutional or statutory breaches if applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has been
exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by
the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which
violate the citizens' rights under the Constitution, this Court has to declare such acts unconstitutional and
illegal. DaAISH
In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached hereto, is
considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts
were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one
similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent."
Consequently, the transcendental issues raised by the parties should not be "evaded;" they must now be
resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section
18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017's
extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct
the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the
press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the
Constitution, the President, in the absence of a legislation, cannot take over privately-owned public
utility and private business affected with public interest. SIEHcA
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as
Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." But
the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and eventually the courts, to
determine the limits of the AFP's authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the
warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and
warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a democratic state. During
emergency, governmental action may vary in breadth and intensity from normal times, yet they should
not be arbitrary as to unduly restrain our people's liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various competing
political philosophies is that, it is possible to grant government the authority to cope with crises without
surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed. 158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL
insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress
lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related
to lawless violence, as well as decrees promulgated by the President, are declared
UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under
Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or business affected with public
interest without prior legislation. DHcESI
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should
implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence." Considering that "acts of terrorism" have not yet been defined and
made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of
the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners
were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press, as well as the warrantless
search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
||| (David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483, 171400, 171489, 171424,
[May 3, 2006])

EN BANC

159

[G.R. No. 100318. July 30, 1991.]

GOVERNOR EMILIO M.R. OSMEA, (Province of Cebu), GOVERNOR ROBERTO
PAGDANGANAN, on behalf of the League of Governors of the Philippines, REPRESENTATIVES
PABLO P. GARCIA (3rd District-Cebu), RAUL V. DEL MAR (North District, Cebu City), ANTONIO
T. BACALTOS (1st District-Cebu), WILFREDO G. CAINGLET (3rd District-Zamboanga del Norte),
and ROMEO GUANZON (Lone District Bacolod City), petitioners, vs. COMMISSION ON
ELECTIONS, HON. OSCAR M. ORBOS, Executive Secretary, HON. GUILLERMO CARAGUE,
Secretary of the Department of Budget and Management and HON. ROSALINA S. CAJUCOM, OIC
National Treasury, respondents.
[G.R. No. 100308. July 30, 1991.]
THE LEAGUE OF THE PROVINCIAL GOVERNORS OF THE PHILIPPINES, represented by HON.
GOVERNOR ROBERTO M. PAGDANGANAN, as its President and HON. ROBERTO M.
PAGDANGANAN, Governor of the Province of Bulacan in his personal capacity and as a taxpayer,
petitioners, vs. THE COMMISSION ON ELECTIONS, represented by its Chairman, HON.
CHRISTIAN S. MONSOD, respondents.

question of national importance. Article VIII, Sec. 1 of the 1987 Constitution clearly provides: "The
judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law. "Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."
3. ID.; ID.; ID.; TECHNICALITIES OF PROCEDURE BRUSHED ASIDE TO RESOLVE SERIOUS
CONSTITUTIONAL QUESTIONS OF TRANSCENDENTAL IMPORTANCE TO THE PUBLIC.
We held as early as in the Emergency Power Cases (Araneta v. Dinglasan, 84 Phil. 368; Rodriguez v.
Gella, 93 Phil. 603) that where serious constitutional questions are involved, "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." The same policy has since then been consistently
followed by the Court, as in Gonzales v. Commission on Elections, 21 SCRA 774, and in the cases of
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371, 378. This
ruling was re-echoed in the case of "Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform", 175 SCRA 343 and in the more recent case of "Attys. Humberto Basco
et. al. v. Philippine Amusement and Gaming Corporation (PAGCOR)", G.R. No. 91649, promulgated
May 14, 1991.

[G.R. No. 100417. July 30, 1991.]

CONSTANTINO G. JARAULA, ARTURO C. UBAUB, MIGUEL M. SABACAJAN, RENE C.
BARBASO, MATEO P. PADERANGA, JERRY M. PACURIBOT, AND ERASTO SALCEDO,
petitioners, vs. EXEC. SECRETARY OSCAR M. ORBOS, SECRETARY OF DEPT. OF BUDGET
AND MANAGEMENT GUILLERMO N. CARAGUE, NATIONAL TREASURER ROSALINA
CAJUCOM, AND COMMISSION ON ELECTIONS, respondents.
[G.R. No. 100420. July 30, 1991.]
GEMILIANO C. LOPEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS, HON. GUILLERMO
N. CARAGUE, and HON. ROSALINA S. CAJUCOM, respondents.
Manuel DJ . Siayngco and Oliviano D. Regalado for petitioner in G.R. No. 100308.
Jacinto D. Jimenez for petitioner in G.R. No. 100420.
Pablo P. Garcia and Winston F . Garcia for petitioner in G.R. No. 100318.
SYLLABUS
1. CONSTITUTIONAL LAW; JUDICIAL POWER; EXERCISE THEREOF; PROPER WHERE
CONTROVERSY INVOLVES THE LEGALITY NOT THE WISDOM OF THE LAW. We hold that
contrary to the respondents' assertion, the Court has the competence to act on the matter at bar. What is
before us is not a discretionary act of Congress or the Executive that may not be reviewed by us because
it is political in nature. What is involved here is the legality, not the wisdom of Republic Act 7056.
2. ID.; ID.; ID.; ARTICLE III SECTION 1 OF THE 1987 CONSTITUTION; PROVIDES FOR
JUDICIAL EXPANDED JURISDICTION; REQUISITE. If we were to assume that the issue of the
constitutionality of R.A. 7056 presented before us is political in nature, We would still not be precluded
from resolving it under the expanded jurisdiction conferred upon us that now covers in proper cases
even political questions (Daza v. Singson, 180 SCRA 496), provided naturally, that the question is not
solely and exclusively political (as when the Executive extends recognition to a foreign government) but
one which really necessitates a forthright determination of constitutionality, involving as it does a

4. ID.; REPUBLIC ACT NO. 7056; POSTPONEMENT OF HOLDING A SYNCHRONIZED LOCAL

AND NATIONAL ELECTION PROVIDED THEREIN; CONTRAVENES ARTICLE XVIII
SECTIONS 2 AND 5 OF THE 1987 CONSTITUTION. Republic Act 7056 provides for two (2)
separate elections in 1992 as follows: "Sec. 2. Start of Synchronization To start the process of
synchronization of election in accordance with the policy hereinbefore declared there shall be held: "(a)
An election for President and Vice-President of the Philippines, twenty four (24) Senators and all
elective Members of the Houses Representatives on the second Monday of May, 1992, and "(b) An
election of all provincial, city and municipal elective officials on the second Monday of November,
1992. The purpose of Republic Act 7056 is as stated in Section 1 thereof under the heading "Statement
of Policy" ". . . to start, as much as practicable, the synchronization of the elections so that the
process can be completed in the 1995 elections with the result that beginning 1995 there shall be only
one (1) simultaneous regular elections for national and local elective officials every three (3) years. With
the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local
elections in the second Monday of May, 1992, the inevitable conclusion would be that Republic Act
7056 is clearly violative of the Constitution because it provides for the holding of a desynchronized
election. Stated differently, Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article
XVIII, Sections 2 and 5 of the 1987 Constitution.
5. ID.; ID.; HOLD-OVER PROVISION THEREIN; VIOLATIVE OF SECTION 2, ARTICLE XVIII
OF THE 1987 CONSTITUTION. Section 2, Article XVIII of the Constitution which provides that
the local official first elected under the Constitution shall serve until noon of June 30, 1992. But under
Sec. 3 of RA 7056, these incumbent local officials shall hold over beyond June 30, 1992 and shall serve
until their successors shall have been duly elected and qualified. It has been held that: "It is not
competent for the legislature to extend the term of officers by providing that they shall hold over until
their successors are elected and qualified where the constitution has in effect or by clear implication
prescribed the term and when the Constitution fixes the day on which the official term shall begin, there
is no legislative authority to continue the office beyond that period, even though the successors fail to
qualify within the time." (Sec. 67 CJS, p. 379.)
6. ID.; ID.; REDUCTION OF THE TERM OF OFFICE OF LOCAL OFFICIALS PROVIDED
THEREIN; VIOLATIVE OF SECTION 8, ARTICLE X OF THE CONSTITUTION. Section 8,
Article X of the Constitution which provides that: "The term of office of elective local officials, except
barangay officials which shall be determined by law shall be three years and no such official shall serve

160

for more than three consecutive terms. . . . " But if the local election will be held on the second Monday
of November 1992 under RA 7056, those to be elected will be serving for only two years and seven
months, that is, from November 30, 1992 to June 30, 1995, not three years as provided for by the
Constitution.
7. ID.; ID.; CHANGE IN CAMPAIGN PERIODS PROVIDED THEREIN; VIOLATIVE OF SECTION
9 ARTICLE IX OF THE 1987 CONSTITUTION. Section 9, Article IX of the Constitution provides
that: "Unless otherwise fixed by the Commission in special cases, the election period shall commence
ninety days before the day of election and shall end thirty days thereafter." Under this provision the
filing of the Certificate of Candidacy and the ensuing campaign period must be embraced or
circumscribed within that election period of ninety days, except when in special cases, the Comelec (not
Congress) alters the period. But RA 7056 provides for a different campaign period, as follows: "Sec. 8.
". . . "(a) For President and Vice-Presidential elections one hundred thirty (130) days before the day of
election. "(b) For Senatorial elections, ninety (90) days before the day of the election, and "(c) For the
election of Members of the House of Representatives and local elective provincial, city and municipal
officials forty-five (45) days before the day of the elections. Thus, violative of the Section 9 of the
Article IV of the Constitution.
8. ID.; 1987 CONSTITUTION; METHOD OF AMENDMENT OR REVISION PRESCRIBED
THEREIN; APPLICABLE TO THE TRANSITORY PROVISIONS. The contention of the Solicitor
General that the method of amendment or revision prescribed by the Constitution (Article XVIII) does
not apply to the Transitory Provisions because in the nature of things Transitory Provisions are to be
carried out as soon as practicable, and Congress can, in the exercise of its legislative power enact the
needed legislation, in this case RA 7056, deserves no consideration at all. The 1987 Constitution has
stated in clear and categorical language that "the six-year term of the incumbent President and VicePresident elected in the February 7, 1986 election is, for purposes of synchronization of elections,
hereby extended to noon of June 30, 1992 (Article XVIII, Sec. 5)." As discussed earlier, the elections
referred to, to be synchronized with the election of the President and Vice-President on the second
Monday of May 1992, is the election for Senators, Members of the House of Representatives and local
officials.

The petition now before Us (G.R. No. 100318) calls for a determination of the validity and
constitutionality of Republic Act 7056, "An Act Providing for the National and Local Elections in 1992,
Pave the Way for Synchronized and Simultaneous Elections Beginning 1995, and Authorizing
Appropriations Therefor," which was signed into law on June 20, 1991. The suit was instituted by
Governor Emilio M. Osmea (Province of Cebu), Governor Roberto Pagdanganan on behalf of the
League of Governors of the Philippines, Representatives Pablo P. Garcia (3rd District-Cebu), Raul V. del
Mar, (North District-Cebu City), Antonio T. Bacaltos (1st District-Cebu), Wilfredo G. Cainglet (3rd
District-Zamboanga del Norte) and Romeo Guanzon (lone District-Bacolod City), by way of a petition
for Prohibition, Mandamus and Injunction with temporary restraining order and/or preliminary
injunction to prevent the implementation of said Republic Act 7056 and the consequent expenditure of
public funds and to compel the Comelec to immediately and with all deliberate speed set up the
machinery and make the necessary preparation for the holding of synchronized national and local
elections on the second Monday of May, 1992. cdphil
The petitioners' claim they have actual and material legal interest in the subject matter of this case not
only because, as public officials, they have taken an oath to support and defend the Constitution but also
because, as taxpayers, they have an interest in seeing to it that public funds are properly and, more
importantly, lawfully disbursed. They pray for this Court to declare Republic Act No. 7056 as
unconstitutional and, therefore, invalid and inoperative because:
"1. Republic Act 7056 violates the mandate of the Constitution for the holding of synchronized national
and local elections on the second Monday of May 1992.
"2. Republic Act 7056, particularly the 2nd paragraph of Section 3 thereof, providing that all incumbent
provincial, city and municipal officials shall hold over beyond June 30, 1992 and shall serve until their
successors shall have been duly elected and qualified violates Section 2, Article XVIII (Transitory
Provision) of the Constitution.
"3. The same paragraph of Section 3 of Republic Act 7056, which in effect, shortens the term or tenure
of office of local officials to be elected on the 2nd Monday of November, 1992 violates Section 8,
Article X of the Constitution.

DECISION
PARAS, J p:

"4. Section 8 of Republic Act 7056, providing for the campaign periods for Presidential, VicePresidential and Senatorial elections, violates the provision of Section 9, Article IX under the title
'Commission on Elections' of the Constitution.

For all the awesome power of the Congress and the Executive, the Court will not hesitate to "make the
hammer fall, and heavily," to use Justice Laurel's pithy language, where the acts of these departments, or
of any public official betray the people's will as expressed in the Constitution. (Association of Small
Landowners in the Philippines, Inc., v. Secretary of Agrarian Reform, 175 SCRA 343, 365).

"5. The so-called many difficult if not insurmountable problems mentioned in Republic Act 7056 to
synchronized national and local elections set by the Constitution on the second Monday of May, 1992,
are not sufficient, much less, valid justification for postponing the local elections to the second Monday
of November 1992, and in the process violating the Constitution itself. If, at all, Congress can devise
ways and means, within the parameters of the Constitution, to eliminate or at least minimize these
problems and if this, still, is not feasible, resort can be made to the self-correcting mechanism built in
the Constitution for its amendment or revision." (pp. 4-5, Petition)

It need only be added, to borrow again the words of Justice Laurel, that
". . . when the Judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments, it does not in reality nullify or invalidate an act of the Legislative, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them. This is in truth all that is involved in what
is termed 'judicial supremacy' which properly is the power of judicial review under the Constitution."
(Angara v. Electoral Commission, 63 Phil. 139.)

Similar claims have been made in the other cases mentioned in the caption.
The Court in its Resolution dated June 27, 1991 issued a restraining order, "ordering the respondents
and or anyone acting in their place or stead, or by their authority, to cease and desist from implementing
Republic Act 7056, which provides among others, for the holding of desynchronized national and local
elections in 1992." (p. 29, Rollo) The Court also required respondents to comment on the petition within
a non-extendible period of ten (10) days from notice.

161

Commenting on the petition as required, the Solicitor General prays for the denial of the petition arguing
that the question raised by petitioners is political in nature and therefore beyond the jurisdiction of this
Court. He stresses, citing National Economic Protective Association v. Ongpin, 171 SCRA 657, that
petitioners failed to show justification for the exercise of its judicial power, viz (1) the existence of an
appropriate case; (2) an interest personal and substantial by the party raising the constitutional question;
(3) the plea that the function be exercised at the earliest opportunity; and (4) the necessity that the
constitutional question be passed upon in order to decide the case. He also questions the legal standing
of the petitioners, who, he contends are merely asking for an advisory opinion from the Court, there
being no justiciable controversy for resolution. prLL
On the merits of the case, the Solicitor General contends that Republic Act 7056 is a valid exercise of
legislative power by Congress and that the regular amending process prescribed by the Constitution
does not apply to its transitory provisions.
Ruling first on the jurisdictional issue, We hold that contrary to the respondents' assertion, the Court has
the competence to act on the matter at bar. What is before us is not a discretionary act of Congress or the
Executive that may not be reviewed by us because it is political in nature. What is involved here is the
legality, not the wisdom of Republic Act 7056. And even if we were to assume that the issue presented
before us is political in nature, We would still not be precluded from resolving it under the expanded
jurisdiction conferred upon us that now covers in proper cases even political questions (Daza v. Singson,
180 SCRA 496), provided naturally, that the question is not solely and exclusively political (as when the
Executive extends recognition to a foreign government) but one which really necessitates a forthright
determination of constitutionality, involving as it does a question of national importance. Article VIII,
Sec. 1 of the 1987 Constitution clearly provides:
"The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
"Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."
On the other procedural issues raised, We held as early as in the Emergency Power Cases (Araneta v.
Dinglasan, 84 Phil. 368; Rodriguez v. Gella, 93 Phil. 603) that where serious constitutional questions are
involved, "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." The same policy has
since then been consistently followed by the Court, as in Gonzales v. Commission on Elections, 21
SCRA 774, where We held:
"In the course of the deliberations, a serious procedural objection was raised by five members of the
Court. It is their view that respondent Commission on Elections not being sought to be restrained from
performing any specific act, this suit cannot be characterized as 'other than a mere request for an
advisory opinion.' Such a view, from the remedial law standpoint, has much to recommend it.
Nonetheless, a majority would affirm the original stand that under the circumstances, it could still
rightfully be treated a petition for prohibition.
"The language of Justice Laurel fits the case: 'All await the decision of this Court on the constitutional
question. Considering, therefore, the importance which the instant case has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that (its) constitutionality . . . be now
resolved.' It may likewise be added that the exceptional character of the situation that confronts us, the
paramount public interest and the undeniable necessity for ruling, the national election being barely six
months away reinforce our stand.

"It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to
prevent the enforcement of an alleged unconstitutional statute. We are left with no choice then; we must
act on the matter."
In the case of Kapatiran ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371,
378, wherein the Solicitor General raised the same issues failure to show justification for the exercise
of judicial powers and lack of justiciable controversy for resolution, the Court ruled that these are mere
procedural matters and
"considering the importance to the public of the case at bar and in keeping with the court's duty under
the 1987 Constitution to determine whether or not 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 had taken cognizance of this petition."

This ruling was re-echoed in the case of "Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform," 175 SCRA 343 and in the more recent case of "Attys. Humberto Basco
et. al. v. Philippine Amusement and Gaming Corporation (PAGCOR)", G.R. No. 91649, promulgated
May 14, 1991.
To summarize, on the procedural issue, We hold in view of the foregoing considerations, that the issue
presented to us in the case at bar, is justiciable rather than political. Even if the question were political in
nature, it would still come within our powers of review under the expanded jurisdiction conferred upon
us by Article VIII, Section 1 of the 1987 Constitution, which includes the authority to determine
whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by
any branch or instrumentality of the government. As for the other alleged procedural flaws - lack of
court standing, etc., assuming the existence of such flaws, the same may be brushed aside, conformably
with existing doctrine so that the important constitutional issue raised may be addressed.
Accordingly, We are left with no other alternative but to uphold the jurisdiction of the Court over the
present cases. It goes without saying that We do this not because the Court is superior to the Executive
and/or Legislative but simply because the Executive, the Legislative and this Court are subject to the
Constitution as the supreme law.
As this Court stated in Daza v. Singson, supra:
". . . But as our jurisdiction has been invoked and more importantly, because a constitutional stalemate
has to be resolved, there was no alternative for us except to act and to act decisively. In doing so, of
course, we are not imposing our will upon the said agencies, or substituting our discretion for theirs, but
merely discharging our sworn responsibility to interpret and apply the Constitution. That is a duty we do
not evade, lest we ourselves betray our oath."
Now, We go to the merits of the case.
At the core of this controversy is Article XVIII, Sections 2 and 5 (Transitory Provisions) of the 1987
Constitution, which reads
"Sec. 2. The Senators, Members of the House of Representatives and the local officials first elected
under this Constitution shall serve until noon of June 30, 1992.

162

"Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes
shall serve for six years and the remaining twelve for three years.
xxx xxx xxx
"Sec. 5. The six-year term of the incumbent President and Vice President elected in the February 7, 1986
election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

We are taking up the consideration of the survey on the synchronization of the elections, and within that
context the specific terms of office of the President and the Vice-President, the Members of the
Congress and the local officials. Is that correct?
"MR. ROMULO.
That is my proposal inasmuch as the survey covers all of those offices.

"The first regular elections for President and Vice-President under this Constitution shall be held on the
second Monday of May, 1992." (emphasis supplied)
It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office of Senators,
Members of the House of Representatives, the local officials, the President and the Vice-President have
been synchronized to end on the same hour, date and year noon of June 30, 1992.

"MR. OPLE.
This will not foreclose a full debate on the question of the terms of the President and the Vice-President
in the Constitution later on?
"MR. ROMULO.

It is likewise evident from the wording of the above-mentioned Sections that the term of
synchronization is used synonymously as the phrase holding simultaneously since this is the precise
intent in terminating their Office Tenure on the same day or occasion. This common termination date
will synchronize future elections to once every three years (Bernas, the Constitution of the Republic of
the Philippines, Vol. II, p. 605)

Madam President, firstly, I do not think this involves the incumbents.

"MR. OPLE.
Thank you very much.

That the election for Senators, Members of the House of Representatives and the local officials (under
Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President
(under Sec. 5, Art. XVIII) is likewise evident from the following records of the proceedings in the
Constitutional Commission:

"MR. ROMULO.
Does that satisfy Commissioner Ople?

"CONSIDERATION OF THE SURVEY

"MR. OPLE.

OF SYNCHRONIZATION OF ELECTIONS

That is all the information I wanted. Thank you very much, Madam President.

"MR. ROMULO:

"THE PRESIDENT.

Madam President, we have two subject matters to be taken up. The first with regard to the
synchronization of elections, copies of the results of the survey of which, I think, has been provided to
everybody and the second question is the party list sectoral representation issue.

The term of the incumbents is taken up in the Transitory Provisions. Is that correct?

"I move that we proceed to the consideration of the survey on the synchronization of the elections for
the Offices of the President and Vice-President, the members of the Congress and the local officials.

"MR. ROMULO.
That is correct, Madam President.
"THE PRESIDENT.

"THE PRESIDENT:
Is there any objection to the motion of the Acting Floor Leader? (Silence) the Chair hears none; the
motion is approved.

So the body will now discuss the term of office of the President, Vice-President, the Members of the
Congress and the local officials.
"MR. ROMULO.

"MR. OPLE:
Madam President, will the Acting Floor Leader yield to a question concerning this agenda?

Yes. So in other words, strictly speaking, we will discuss the synchronization of elections." (Records,
July 24, 1986, pp. 204-205)

"MR. ROMULO:

Further, the records of the proceedings of October 3, 1986 show the following:

Yes, certainly.

"MR. MAAMBONG.

"MR. OPLE:

163

For purposes of identification, I will now read a section which we will temporarily indicate as Section
14. It reads: THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE
LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO
EXPIRE AT NOON OF JUNE ___ 1992.'
"This was presented by Commissioner Davide, so may we ask that Commissioner Davide be
recognized.
"THE PRESIDING OFFICER (Mr. Rodrigo).
Commissioner Davide is recognized.
"MR. DAVIDE.
Before going to the proposed amendment, I would only state that in view of the action taken by the
Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows: 'THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS
FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30,
1992.'
"I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to
the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by the
Commission for Members of the Lower House and for local officials is three years, if there will be an
election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992.
We could never attain, subsequently, any synchronization of election which is once every three years.
"So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we
should not have a local election or an election for Members of the Lower House in 1990 for them to be
able to complete their term of three years each. And if we also stagger the Senate, on the first election it
will result in an election in 1993 for the Senate alone, and there will be an election for 12 Senators in
1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their election
will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993, the later election
will be limited to only 12 Senators and of course to the House of the Lower House. But, definitely,
thereafter we can never have an election once every three years, therefore defeating the very purpose of
the Commission when we adopted the term of six years for the President and another six years for the
Senators with the possibility of staggering with 12 to serve for six years and 12 for three years insofar as
the first Senators are concerned. And so my proposal is the only way to effect the first synchronized
election which would mean, necessarily, a bonus of two years to the Members of the Lower House and a
bonus of two years to the local elective officials.
"THE PRESIDING OFFICER (Mr. Rodrigo).
What does the committee say?
"MR. DE CASTRO.
Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Rodrigo).
Commissioner de Castro is recognized.

Thank you.
"During the discussion on the legislative and the synchronization of elections, I was the one who
proposed that in order to synchronize the elections every three years, which the body approved the
first national and local officials to be elected in 1987 shall continue in office for five years, the same
thing the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that
the term of the President will be for six years and continue beginning in 1986. So from 1992, we will
again have national, local and presidential elections. This time, in 1992, the President shall have a term
until 1998 and while the next 12 shall serve until 1995, and then the local officials elected in 1992 will
serve until 1995. From then on, we shall have an election every three years.
"So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our
elections every three years which was already approved by the body.
"Thank you, Mr. Presiding Officer.
xxx xxx xxx

"MR. GUINGONA.
What will be synchronized, therefore, is the election of the incumbent President and Vice-President in
1992.
"MR. DAVIDE.
Yes.
"MR. GUINGONA.
Not the reverse. Will the committee not synchronize the election of the Senators and local officials with
the election of the President?
"MR. DAVIDE.
It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the provision of
the Transitory Provisions on the term of the incumbent President and Vice-President would really end in
1992.
"MR. GUINGONA.
Yes.
"MR. DAVIDE.
In other words, there will be a single election in 1992 for all, from the President up to the municipal
officials.
xxx xxx xxx

"MR. DE CASTRO.

164

"MR. SUAREZ.

The purpose of Republic Act 7056 is as stated in Section 1 thereof under the heading "Statement of
Policy"

Last point of inquiry to the Honorable Davide.

"From 1987 up to 1992, as envisioned under the Gentlemen's proposal, will there be no local or
national election?
"MR. DAVIDE.
None, Mr. Presiding Officer.
"MR. SUAREZ.
And the second local and national elections will be held in 1992?
"MR. DAVIDE.
That is correct, Mr. Presiding Officer.
"MR. SUAREZ.

". . . to start, as much as practicable, the synchronization of the elections so that the process can be
completed in the 1995 elections with the result that beginning 1995 there shall be only one (1)
simultaneous regular elections for national and local elective officials every three (3) years.
With the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local
elections in the second Monday of May, 1992, the inevitable conclusion would be that Republic Act
7056 is clearly violative of the Constitution because it provides for the holding of a desynchronized
election. Stated differently, Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article
XVIII, Sections 2 and 5 of the 1987 Constitution. LLjur
But this is not all. There are other provisions of the Constitution violated by RA 7056. For one, there is
Section 2, Article XVIII of the Constitution which provides that the local official first elected under the
Constitution shall serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent
local officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have
been duly elected and qualified. It has been held that:

"MR. DAVIDE.

"It is not competent for the legislature to extend the term of officers by providing that they shall hold
over until their successors are elected and qualified where the constitution has in effect or by clear
implication prescribed the term and when the Constitution fixes the day on which the official term shall
begin, there is no legislative authority to continue the office beyond that period, even though the
successors fail to qualify within the time." (Sec. 67 CJS, p. 379, Emphasis supplied)

Yes, Mr. Presiding Officer.

In American Jurisprudence it has been stated as follows:

(Record, October 3, 1986, pp. 429-432. Emphasis supplied).

"It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office
the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as
limited by the Constitution." (43 Am. Jur., 152, page 13)

Prior to June 30, 1992?

It thus becomes very evident that the Constitution has mandated a synchronized national and local
election prior to June 30,1992 or more specifically as provided for in Article XVIII, Sec. 5 on the
second Monday of May, 1992.

Also, there is Section 8, Article X of the Constitution which provides that:

On this point, it has to be stressed that the term of office of elective local officials, except barangay
officials, is fixed by the Constitution at three years (Sec. 8, Art. X). The incumbent local officials were
elected in January 1988. Therefore, their term would have expired on February 2, 1991. But their term
was adjusted to expire at noon of June 30, 1992. The reason for the said adjustment, as well as those of
the Senators, members of the House of Representatives, President and Vice-President, is the same to
synchronize the national and local elections.

"The term of office of elective local officials, except barangay officials which shall be determined by
law shall be three years and no such official shall serve for more than three consecutive terms . . ."

Upon the other hand, and contrary to the express mandate of the 1987 Constitution, Republic Act 7056
provides for two (2) separate elections in 1992 as follows:

Then also, Section 9, Article IX of the Constitution provides that:

"Sec. 2. Start of Synchronization To start the process of synchronization of election in accordance

with the policy hereinbefore declared there shall be held:
"(a) An election for President and Vice-President of the Philippines, twenty four (24) Senators and all
elective Members of the House of Representatives on the second Monday of May, 1992, and
"(b) An election of all provincial, city and municipal elective officials on the second Monday of
November, 1992.

But if the local election will be held on the second Monday of November 1992 under RA 7056, those to
be elected will be serving for only two years and seven months, that is, from November 30, 1992 to June
30, 1995, not three years as provided for by the Constitution.

"Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety
days before the day of election and shall end thirty days thereafter."
Under this provision the filing of the Certificate of Candidacy and the ensuing campaign period must be
embraced or circumscribed within that election period of ninety days, except when in special cases, the
Comelec (not Congress) alters the period. But RA 7056 provides for a different campaign period, as
follows:
"Sec. 8.
"xxx xxx xxx

165

"(a) For President and Vice-Presidential elections one hundred thirty (130) days before the day of
election.
"(b) For Senatorial elections, ninety (90) days before the day of the election, and

EN BANC

"(c) For the election of Members of the House of Representatives and local elective provincial, city and
municipal officials forty-five (45) days before the day of the elections.

[G.R. No. 59524. February 18, 1985.]

All these the postponement of the holding of a synchronized national and local election from 1992 to
1995; the hold-over provision for incumbent local officials; the reduction of the term of office of local
officials to be elected on the second Monday of November 1992 and the change in the campaign
periods, are violative of the 1987 Constitution.

JOVITO R. SALONGA, petitioner, vs. HON. ERNANI CRUZ PAO, Presiding Judge of the Court of
First Instance of Rizal, Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ, Presiding
Judge of the Court of First Instance of Rizal, Branch XXXI (Quezon City) CITY FISCAL SERGIO
APOSTOL of Quezon City; COL. BALBINO DIEGO and COL. ROMAN MADELLA, respondents.
Salonga, Ordoez, Yap, Corpuz, and Padlan for petitioner.

The contention of the Solicitor General that the method of amendment or revision prescribed by the
Constitution (Article XVIII) does not apply to the Transitory Provisions because in the nature of things
Transitory Provisions are to be carried out as soon as practicable, and Congress can, in the exercise of
its legislative power enact the needed legislation, in this case RA 7056, deserves no consideration at all.
The 1987 Constitution has stated in clear and categorical language that "the six-year term of the
incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992 (Article XVIII, Sec. 5)." As
discussed earlier, the elections referred to, to be synchronized with the election of the President and
Vice-President on the second Monday of May 1992, is the election for Senators, Members of the House
of Representatives and local officials. LexLib
Incidentally, Webster defines
Synchronization as the act or result of synchronizing; concurrence of events or motions in respect to
time.
Synchronize to happen or take place at the same time; to represent or arrange event so as to indicate
coincidence or coexistence; to cause to agree in time.
It is noteworthy that the Solicitor General evaded the issue of the constitutionality of Republic Act 7056.
Although he made a lengthy discussion on the procedural issues and on the legislative power of
Congress, he failed to refute the arguments of the petitioners that Republic Act 7056 violated several
provisions of the 1987 Constitution more importantly, the provision on synchronization of election.
Insofar as the motion for intervention filed by some Congressmen on July 29, 1991 is concerned, We
believe the same is meritless because the mere absence of a provision in the 1987 Constitution which
would prohibit the holding of separate elections does not mean that the Constitution does not intend the
holding of simultaneous or synchronized elections.
IN VIEW OF THE FOREGOING CONSIDERATIONS, Republic Act 7056 is hereby declared
UNCONSTITUTIONAL, hence, NULL and VOID. The restraining order earlier issued is hereby made
permanent. No costs.
SO ORDERED.
||| (Osmea v. COMELEC, G.R. No. 100318, 100308, 100417, 100420, [July 30, 1991], 276 PHIL 830850)

Solicitor General for respondents.

SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; DENIAL OF A MOTION TO
QUASH OR TO DISMISS CANNOT BE QUESTIONED BY CERTIORARI; RULE NOT
APPLICABLE WHERE THERE IS FAILURE TO SHOW PRIMA FACIE THAT A PERSON IS
GUILTY. The respondents call for adherence to the consistent rule that the denial of a motion to
quash or to dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the
question of dismissal will again be considered by the court when it decides the case, the movant has a
plain, speedy and adequate remedy in the ordinary course of law; and that public interest dictates that
criminal prosecutions should not be enjoined. The general rule is correctly stated. However, the
respondents fail to appreciate or take into account certain exceptions when a petition for certiorari is
clearly warranted. The case at bar is one such exception. In the light of the failure to show prima facie
that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of
petitioner's constitutional rights together with the massive and damaging publicity made against him,
justifies the favorable consideration of this petition by this Court.
2. ID.; EVIDENCE; "PRIMA FACIE EVIDENCE"; EVIDENCE MUST BE SUFFICIENT TO
OVERCOME PRESUMPTION OF INNOCENCE. Infinitely more important than conventional
adherence to general rules of criminal procedure is respect for the citizen's fight to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. The integrity of a
democratic society is corrupted if a person is carelessly included in the trial of around forty persons
when on the very face of the record no evidence linking him to the alleged conspiracy exists. The term
"prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to sustain
the proposition it supports or to establish the facts, or to counterbalance the presumption of innocence to
warrant a conviction.
3. ID.; ID.; HEARSAY RULE; TESTIMONY BASED ON ANOTHER PERSON'S AFFIDAVITS ARE
HEARSAY AND HAS NO PROBATIVE VALUE; INQUEST JUDGE SHOULD CONFINE
INVESTIGATION TO SOLE WITNESS. Col. Diego, on the other hand, when asked what evidence
he was able to gather against the petitioner depended only on the statement of Lovely "that it was the
residence of ex-Senator Salonga where they met together with Renato Tanada, one of the brains of the
bombing conspiracy . . . and the fact that Sen. Salonga has been meeting with several subversive
personnel based in the U.S.A. was also revealed to me by Victor Burns Lovely"; and on the group
pictures taken at former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists
to overthrow by violent means the government of the Philippines in the United States, his only bases
were "documentary as well as physical and sworn statements that were referred to me or taken by me

166

personally," which of course negate personal knowledge on his part. Testimony based on affidavits of
other persons and purely hearsay, can hardly qualify as prima facie evidence of subversion. It should not
have been given credence by the court in the first place. Hearsay evidence, whether objected to or not,
has no probative value as the affiant could not have been cross-examined on the facts stated therein.
(See People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely,
himself, was personally examined by the court, there was no need for the testimony of Col. Diego. Thus,
the inquest judge should have confined his investigation to Victor Burns Lovely, the sole witness whose
testimony has apparently implicated petitioner in the bombings which eventually led to the filing of the
information.
4. ID.; ID.; INDICTING A PERSON BECAUSE PLOTTERS MET IN HIS HOUSE, A DANGEROUS
PRECEDENT. The jump from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but without foundation. The
respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts of
violence or terrorism. There is no proof of his direct participation in any overt acts of subversion. The
"contact point" theory or what the petitioner calls the "guilt by visit or guilt by association" theory is too
tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing incidents.
To indict a person simply because some plotters, masquerading as visitors, have somehow met in his
house or office would be to establish a dangerous precedent. The right of citizens to be secure against
abuse of governmental processes in criminal prosecutions would be seriously undermined.
5. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY THAT PETITIONER WHO WAS DEAF
AND ANOTHER WHISPERED TO EACH OTHER IS INCONSISTENT. The testimony of Victor
Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga and Atty. Renato Tanada
could not have whispered to one another because the petitioner is almost totally deaf. Lovely could not
have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977 because the petitioner left
for the United States only in November, 1978. Senator Salonga denies having known Mr. Lovely in the
United States or in the Philippines. He states that he has hundred of visitors from week to week in his
residence but cannot recall any Victor Lovely.
6. ID.; ID.; PHOTOGRAPH; PRESENCE IN A GROUP PICTURE IS NOT PROOF OF
CONSPIRACY. The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in
Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner,
in his many years in the turbulent world of politics, he has posed with all kind of people in various
groups and various places and could not possibly vouch for their conduct. Commenting on the matter,
newspaper columnist Teodoro Valencia stated that Filipinos love to pose with important visitors and the
picture proves nothing. More credible and stronger evidence is necessary for an indictment.
Nonetheless, even if we discount the flaws in Lovely's testimony and dismiss the refutations and
arguments of the petitioner, the prosecution evidence is still inadequate to establish a prima facie
finding.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF THOUGHT AND EXPRESSION;
OPINION ON THE LIKELIHOOD OF A VIOLENT STRUGGLE, A LEGITIMATE EXERCISE OF
FREEDOM. The alleged opinion of the petitioner about the likelihood of a violent struggle here in
the Philippines if reforms are not instituted, assuming that he really stated the same, is nothing but a
legitimate exercise of freedom of thought and expression. No man deserves punishment for his thoughts.
Cogitationis poenam nemo meretur. And as the late Justice Oliver W. Holmes stated in the case of U .S.
v. Schwimmer, 279 U.S. 644, ". . . if there is any principle of the Constitution that more imperatively
calls for attachment than any other it is the principle of free thought not free thought for those who
agree with us but freedom for the thought that we hate."
8. ID.; ID.; ID.; A PREFERRED RIGHT; POLITICAL DISCUSSION CANNOT BE INDICTED.
We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a

higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom
of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on
Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this
must be so because the lessons of history, both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form of freedom. Protection is especially
mandated for political discussions. This Court is particularly concerned when allegations are made that
restraints have been imposed upon mere criticisms of government and public officials. Political
discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal
indictments. In the case before us, there is no teaching of the moral propriety of a resort to violence,
much less an advocacy of force or a conspiracy to organize the use of force against the duly constituted
authorities. The alleged remark about the likelihood of violent struggle unless reforms are instituted is
not a threat against the government. Nor is it even the uninhabited, robust, caustic, or unpleasantly sharp
attack which is protected by the guarantee of free speech. Parenthetically, the American case of
Brandenburg v. Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite
or produce such action. The words which petitioner allegedly used according to the best recollection of
Mr. Lovely are light years away from such type of proscribed advocacy.
9. REMEDIAL LAW; EVIDENCE; STATEMENT THAT HIS MISSION WAS AGAINST A
PARTICULAR FAMILY NEGATES POLITICALLY MOTIVATED ASSIGNMENT. Lovely also
declared that he had nothing to do with the bombing on August 22, 1980, which was the only bombing
incident that occurred after his arrival in Manila on August 20, 1980, and before the YMCA explosion
on September 6, 1980. He further testified that: (his) bombing mission was directed against the
particular family (referring to the Cabarrus family). Such a statement wholly negates any politically
motivated or subversive assignment which Lovely was supposed to have been commissioned to perform
upon the orders of his co-accused and which was the very reason why they were charged in the first
place.

10. ID.; ID.; BY ADOPTING DEFENSE WITNESS AS ITS OWN, PROSECUTION IS BOUND BY
HIS DISCLAIMER. It should be noted that after Lovely's testimony, the prosecution manifested to
the court that is was adopting him as a prosecution witness. Therefore, the prosecution became
irreversibly bound by Lovely's disclaimers on the witness stand, that it was not his intention "to do some
kind of bombing against the government" and that he "did not try to implicate Salonga," especially since
Lovely is the sole witness adopted by the prosecution who could supposedly establish the link between
the petitioner and the bombing incidents. The respondent court should have taken these factors into
consideration before concluding that a prima facie case exists against the petitioner.
11. ID.; ID.; EVIDENCE MUST COME NOT ONLY FROM A CREDIBLE WITNESS BUT MUST BE
CREDIBLE IN ITSELF. Evidence must not only proceed from the mouth of a credible witness but it
must be credible in itself such as the common experience and observation of mankind can approve as
probable under the circumstances. (People v. Dayad, 56 SCRA 439) In the case at bar, the prosecution
cannot even present a credible version of the petitioner's role in the bombings even if it ignores the
subsequent disclaimers of Lovely and without relying on mere affidavits including those made by
Lovely during his detention.
12. ID.; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PURPOSE; TRIAL JUDGE
HAS DUTY TO SPARE ACCUSED FROM PAIN OF TRIAL IF THERE IS INSUFFICIENT
EVIDENCE. The purpose of a preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public accusation of crime,

167

from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and
expensive trials. (Trocio v. Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil. 216) The right to a
preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional
due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause
it is not enough that the preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of
the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of
all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to
the guilt of the accused.

On September 20, 1980, the President's anniversary television radio press conference was broadcast.
The younger brother of Victor Lovely, Romeo, was presented during the conference. In his interview,
Romeo stated that he had driven his elder brother, Victor, to the petitioner's house in Greenhills on two
occasions. The first time was on August 20, 1980. Romeo stated that Victor did not bring any bag with
him on that day when he went to the petitioner's residence and did not carry a bag when he left. The
second time was in the afternoon of August 31, 1980 when he brought Victor only to the gate of the
petitioner's house. Romeo did not enter the petitioner's residence. Neither did he return that day to pick
up his brother. cdll

13. CONSTITUTIONAL LAW; BILL OF RIGHTS; EXTENT OF CONSTITUTIONAL

GUARANTEE; COURT'S FUNCTION IS TO EDUCATE BENCH AND BAR THEREON. The
setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved by the
Bill of Rights for the individual as constitutionally protected spheres where even the awesome powers
of Government may not enter at will is not the totality of the Court's functions. The Court also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has
the symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees.

Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's intensive care unit and
transferred to the office of Col. Madella where he was held incommunicado for sometime.

DECISION
GUTIERREZ, JR., J p:
The petitioner invokes the constitutionally protected right to life and liberty guaranteed by the due
process clause, alleging that no prima facie case has been established to warrant the filing of an
information for subversion against him. Petitioner asks this Court to prohibit and prevent the
respondents from using the iron arm of the law to harass, oppress, and persecute him, a member of the
democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of August, September and October
of 1980. On September 6, 1980, one Victor Burns Lovely, Jr., a Philippine-born American citizen from
Los Angeles, California, almost killed himself and injured his younger brother, Romeo, as a result of the
explosion of a small bomb inside his room at the YMCA building in Manila. Found in Lovely's
possession by police and military authorities were several pictures taken sometime in May, 1980 at the
birthday party of former Congressman Raul Daza held at the latter's residence in a Los Angeles suburb.
Petitioner Jovito R. Salonga and his wife were among those whose likenesses appeared in the group
pictures together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by military and police authorities to
the AFP Medical Center (V. Luna Hospital) where he was place in the custody and detention of Col.
Roman P. Madella, under the over-all direction of General Fabian Ver, head of the National Intelligence
and Security Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and
Baltazar Lovely where charged with subversion, illegal possession of explosives, and damage to
property.
On September 12, 1980, bombs once again exploded in Metro Manila including one which resulted in
the death of an American lady who was shopping at Rustan's Supermarket in Makati and others which
caused injuries to a number of persons.

The next day, newspapers came out with almost identical headlines stating in effect that petitioner had
been linked to the various bombings in Metro Manila.

On the night of October 4, 1980, more bombs were reported to have exploded at three big hotels in
Metro Manila, namely: Philippine Plaza, Century Park Sheraton and Manila Peninsula. The bombs
injured nine people. A meeting of the General Military Council was called for October 6, 1980.
On October 19, 1980, minutes after the President had finished delivering his speech before the
International Conference of the American Society of Travel Agents at the Philippine International
Convention Center, a small bomb exploded. Within the next twenty-four hours, arrest, search, and
seizure orders (ASSOs) were issued against persons who were apparently implicated by Victor Lovely
in the series of bombings in Metro Manila. One of them was herein petitioner Victor Lovely offered
himself to be a "state witness" and in his letter to the President, he stated that he will reveal everything
he knows about the bombings.
On October 21, 1980, elements of the military went to the hospital room of the petitioner at the Manila
Medical Center where he was confined due to his recurrent and chronic ailment of bronchial asthma and
placed him under arrest. The arresting officer showed the petitioner the ASSO form which however did
not specify the charge or charges against him. For some time, the petitioner's lawyers were not permitted
to visit him in his hospital room until this Court in the case of Ordoez v. Gen. Fabian Ver, et al., (G.R.
No. 55345, October 28, 1980) issued an order directing that the petitioner's right to be visited by counsel
be respected.
On November 2, 1980, the petitioner was transferred against his objections from his hospital arrest to an
isolation room without windows in an army prison camp at Fort Bonifacio, Makati. The petitioner states
that he was not informed why he was transferred and detained, nor was he ever investigated or
questioned by any military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for humanitarian reasons from
military custody and placed "under house arrest in the custody of Mrs. Lydia Salonga" still without the
benefit of any investigation or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice of Preliminary
Investigation" in People v. Benigno Aquino, Jr., et al. (which included petitioner as a co-accused),
stating that "the preliminary investigation of the above-entitled case has been set at 2:30 o'clock p.m. on
December 12, 1980" and that petitioner was given ten (10) days from receipt of the charge sheet and the
supporting evidence within which to file his counter-evidence. The petitioner states that up to the time
martial law was lifted on January 17, 1981, and despite assurance to the contrary, he has not received
any copies of the charges against him nor any copies of the so-called supporting evidence.

168

On February 9, 1981, the records of the case were turned over by the Judge Advocate General's Office
to the Ministry of Justice.

and adequate remedy in the ordinary course of law; and that public interest dictates that criminal
prosecutions should not be enjoined.

On February 24, 1981, the respondent City Fiscal filed a complaint accusing petitioner, among others of
having violated Republic Act No. 1700, as amended by P.D. 885 and Batas Pambansa Blg. 31 in relation
to Article 142 of the Revised Penal Code. The inquest court set the preliminary investigation for March
17, 1981.

The general rule is correctly stated. However, the respondents fail to appreciate or take into account
certain exceptions when a petition for certiorari is clearly warranted. The case at bar is one such
exception.

On March 6, 1981, the petitioner was allowed to leave the country to attend a series of church
conferences and undergo comprehensive medical examinations of the heart, stomach, liver, eye and ear
including a possible removal of his left eye to save his right eye. Petitioner Salonga almost died as one
of the principal victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on August 20,
1971. Since then, he has suffered serious disabilities. The petitioner was riddled with shrapnel and
pieces still remain in various parts of his body. He has an AV fistula caused by a piece of shrapnel
lodged one millimeter from his aorta. The petitioner has limited use of his one remaining hand and arms,
is completely blind and phthisical in the left eye, and has scar like formations in the remaining right eye.
He is totally deaf in the right ear and partially deaf in the left ear. The petitioner's physical ailments led
him to seek treatment abroad. Cdpr

In the case of Mead v. Angel (115 SCRA 256) the same contentions were advanced by the respondents
to wit:
xxx xxx xxx
". . . Respondents advert to the rule that when a motion to quash filed by an accused in a criminal case
shall be denied, the remedy of the accused-movant is not to file a petition for certiorari or mandamus or
prohibition, the proper recourse being to go to trial, without prejudice to his right to reiterate the
grounds invoked in his motion to quash if an adverse judgment is rendered against him, in the appeal
that he may take therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil. 599;
Echarol v. Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:

On or around March 26,1981, the counsel for petitioner was furnished a copy of an amended complaint
signed by Gen. Prospero Olivas, dated March 12, 1981, charging the petitioner, along with 39 other
accused with the violation of R.A. 1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D.
1736. Hearings for preliminary investigation were conducted. The prosecution presented as its witnesses
Ambassador Armando Fernandez, the Consul General of the Philippines in Los Angeles, California,
Col. Balbino Diego, PSC/NISA, Chief, Investigation and Legal Panel of the Presidential Security
Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the charges against petitioner
for failure of the prosecution to establish a prima facie case against him.
On December 2, 1981, the respondent judge denied the motion. On January 4, 1982, he issued a
resolution ordering the filing of an information for violation of the Revised Anti-Subversion Act, as
amended, against forty (40) people, including herein petitioner.
The resolutions of the respondent judge dated December 2, 1981 and January 4, 1982 are now the
subject of the petition. It is the contention of the petitioner that no prima facie case has been established
by the prosecution to justify the filing of an information against him. He states that to sanction his
further prosecution despite the lack of evidence against him would be to admit that no rule of law exists
in the Philippines today.
After a painstaking review of the records, this Court finds the evidence offered by the prosecution
utterly insufficient to establish a prima facie case against the petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a procedural issue raised by the
respondents.
The respondents call for adherence to the consistent rule that the denial of a motion to quash or to
dismiss, being interlocutory in character, cannot be questioned by certiorari; that since the question of
dismissal will again be considered by the court when it decides the case, the movant has a plain, speedy

"There is no disputing the validity and wisdom of the rule invoked by the respondents. However, it is
also recognized that. under certain situations, recourse to the extraordinary legal remedies of certiorari,
prohibition or mandamus to question the denial of a motion to quash is considered proper in the interest
of 'more enlightened and substantial justice', as was so declared in 'Yap v. Lutero', G.R. No. L-12669,
April 30, 1969."
Infinitely more important than conventional adherence to general rules of criminal procedure is respect
for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted
and vexatious prosecution. The integrity of a democratic society is corrupted if a person is carelessly
included in the trial of around forty persons when on the very face of the record no evidence linking him
to the alleged conspiracy exists.
Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous Plaza Miranda
bombings, was arrested at the Manila Medical Center while hospitalized for bronchial asthma. When
arrested, he was not informed of the nature of the charges against him. Neither was counsel allowed to
talk to him until this Court intervened through the issuance of an order directing that his lawyers be
permitted to visit him (Ordoez v. Gen. Fabian Ver, et al., G.R. No. 55345, October 28, 1980). Only
after four months of detention was the petitioner informed for the first time of the nature of the charges
against him. After the preliminary investigation, the petitioner moved to dismiss the complaint but the
same was denied. Subsequently, the respondent judge issued a resolution ordering the filing of an
information after finding that a prima facie case had been established against all of the forty persons
accused.
In the light of the failure to show prima facie that the petitioner was probably guilty of conspiring to
commit the crime, the initial disregard of petitioner's constitutional rights together with the massive and
damaging publicity made against him, justifies the favorable consideration of this petition by this Court.
With former Senator Benigno Aquino, Jr. now deceased, there are at least 38 other co-accused to be tried
with the petitioner. The prosecution must present proof beyond reasonable doubt against each and every
one of the 39 accused, most of whom have varying participations in the charge for subversion. The
prosecution's star witness Victor Lovely and the only source of information with regard to the alleged
link between the petitioner and the series of terrorist bombings is now in the United States. There is
reason to believe the petitioner's citation of international news dispatches ** that the prosecution may

169

find it difficult if not infeasible to bring him back to the Philippines to testify against the petitioner. If
Lovely refused to testify before an American federal grand jury how could he possibly be made to
testify when the charges against the respondent come up in the course of the trial against the 39 accused.
Considering the foregoing, we find it in the interest of justice to resolve at this stage the issue of whether
or not the respondent judge gravely abused his discretion in issuing the questioned resolutions.
The respondents contend that the prosecution will introduce additional evidence during the trial and if
the evidence, by then, is not sufficient to prove the petitioner's guilt, he would anyway be acquitted. Yes,
but under the circumstances of this case, at what cost not only to the petitioner but to the basic fabric of
our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient
to sustain the proposition it supports or to establish the facts, or to counterbalance the presumption of
innocence to warrant a conviction. The question raised before us now is: Were the evidences against the
petitioner uncontradicted and if they were unexplained or uncontradicted, would they, standing alone,
sufficiently overcome the presumption of innocence and warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the respondent judge relied only on the
testimonies of Col. Balbino Diego and Victor Lovely. Ambassador Armando Fernandez, when called
upon to testify on subversive organizations in the United States nowhere mentioned the petitioner as an
organizer, officer or member of the Movement for Free Philippines (MFP), or any of the organizations
mentioned in the complaint. Col. Diego, on the other hand, when asked what evidence he was able to
gather against the petitioner depended only on the statement of Lovely "that it was the residence of exSenator Salonga where they met together with Renato Taada, one of the brains of the bombing
conspiracy . . . and the fact that Sen. Salonga has been meeting with several subversive personnel based
in the U.S.A. was also revealed to me by Victor Burns Lovely; " and on the group pictures taken at
former Congressman Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by
violent means the government of the Philippines in the United States, his only bases were "documentary
as well as physical and sworn statements that were referred to me or taken by me personally," which of
course negate personal knowledge on his part. When asked by the court how he would categorize
petitioner in any of the subversive organizations, whether petitioner was an organizer, officer or a
member, the witness replied: prcd
"A. To categorize former Senator Salonga if he were an organizer, he is an officer or he is a member,
your Honor, please, we have to consider the surrounding circumstances and on his involvement: first,
Senator Salonga wanted always to travel to the United States at least once a year or more often under
the pretext of to undergo some sort of operation and participate in some sort of seminar. (t.s.n., April 21,
1981, pp. 14-15)
Such testimony, being based on affidavits of other persons and purely hearsay, can hardly qualify as
prima facie evidence of subversion. It should not have been given credence by the court in the first
place. Hearsay evidence, whether objected to or not, has no probative value as the affiant could not have
been cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA 223; People v.
Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was personally examined by the court,
there was no need for the testimony of Col. Diego. Thus, the inquest judge should have confined his
investigation to Victor Burns Lovely, the sole witness whose testimony had apparently implicated
petitioner in the bombings which eventually led to the filing of the information.

Lovely's account of the petitioner's involvement with the former's bombing mission is found in his
sworn statement made before Col. Diego and Lt. Col. Madella and taken on October 17, 1980 at the
AFP Medical Center. Lovely was not presented as a prosecution or state witness but only as a defense
witness for his two younger brothers, Romeo and Baltazar, who were both included in the complaint but
who were later dropped from the information. Victor Lovely was examined by his counsel and crossexamined by the fiscal. In the process, he identified the statement which he made before Col. Diego and
Lt. Col. Madella. After Lovely's testimony, the prosecution made a manifestation before the court that it
was adopting Lovely as a prosecution witness.
According to Lovely's statement, the following events took place:
"36. Q. Did Psinakis tell you where to stay?
"A. Yes, at first he told me to check-in at Manila Hotel or the Plaza Hotel where somebody would come
to contact me and give the materials needed in the execution of my mission. I thought this was not safe
so I disagreed with him. Mr. Psinakis changed the plan and instead told me to visit the residence of ExSen. Jovito Salonga as often as I can and someone will meet me there to give the materials I needed to
accomplish my mission.
"37. Q. Did you comply as instructed?
"A. Yes, I arrived in Manila on August 20, 1980 and stayed at the residence of Mr. Johnny Chua,
husband of my business partner, then I went to the Hospital where I visited my mother and checked-in at
Room 303 of the YMCA at Concepcion Street, Manila.
"38. Q. Did you visit the residence of former Senator Jovito Salonga as directed by Psinakis?
"A. I visited Sen. Salonga's place three (3) times, the first visit was August 20 or 21, and the last was
4:00 P.M. of August 31, 1980. In addition to these visits, I TALKED to him on the phone about three or
four times. On my first visit, I told him 'I am expecting an attache case from somebody which will be
delivered to your house,' for which Sen. Salonga replied 'Wala namang nagpunta dito at wala namang
attache case para sa iyo.' However, if your attache case arrives, I'll just call you.' I gave him my number.
On my second visit, Salonga said, 'I'll be very busy so just come back on the 31st of August at 4 P.M.'
On that date, I was with friends at Batulao Resort and had to hurry back to be at Salonga's place for the
appointment. I arrived at Salonga's place at exactly 4 P.M.
"39. Q. What happened then?
"A. I was ushered to the sala by Mrs. Salonga and after five minutes, Sen. Salonga joined me in the sala.
Sen. Salonga informed me that somebody will be coming to give me the attache case but did not tell me
the name.
"40. Q. Are there any subject matters you discussed while waiting for that somebody to deliver your
materials?
"A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to him the efforts of Raul Daza in
setting up that meeting but I have previous business commitments at Norfolk, Virginia. I told him,
however, that through the efforts of Raul Daza, I was able to talk with Ninoy Aquino in the airport
telephone booth in San Francisco. He also asked about Raul Daza, Steve Psinakis and the latest
opposition group activities but it seems he is well informed.
"41. Q. How long did you wait until that somebody arrived?

170

"A. About thirty (30) minutes.

"42. Q. What happened when the man arrived?

"Q. You mentioned in your statement taken on October 17, 1980, marked Exhibit 'G' about the so-called
destabilization plan of Aquino. When you attended the birthday party of Raul Daza wherein Jovito
Salonga was also present, was this destabilization plan as alleged by you already formulated?

"A. This man arrived and I was greatly surprised to see Atty. Renato Taada. Jovy Salonga was the one
who met him and as I observed parang nasa sariling bahay si Taada nung dumating. They talked for
five (5) minutes in very low tones so I did not hear what they talked about. After their whispering
conversations, Sen. Salonga left and at this time Atty. 'Nits' Taada told me 'Nasa akin ang kailangan
mo, nasa kotse.'

WITNESS:

"43. Q. Were the materials given to you?

"Q. Mr. Witness, who invited you to the party?

"A. When Sen. Salonga came back, we asked to be permitted to leave and I rode in Atty. Nits Taada's
old Pontiac car colored dirty brown and proceeded to Broadway Centrum where before I alighted, Atty.
Taada handed me a 'Puma' bag containing all the materials I needed.

"A. Raul Daza, your Honor.

xxx xxx xxx

"A. I am really not quite sure, your Honor.

"45. Q. What were the contents of the Puma bag?

"Q. Alright. You said initially it was social but then it became political. Was there any political action
taken as a result of the party?

"A. Ten (10) pieces of Westclox pocket watch with screw and wirings, ten (10) pieces electrical blasting
caps 4" length, ten (10) pieces non-electrical blasting caps 1" length, nine (9) pieces volts dry cell
battery, two (2) improvised electrical testers, ten (10) plastic packs of high explosive about 1 pound
weight each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on Channel 4 on November 8,
1980 and which was also offered as evidence by the accused, Lovely gave a different story which
negates the above testimony insofar as the petitioner's participation was concerned:
xxx xxx xxx
"Q. Who were the people that you contacted in Manila and for what purpose?
"A. Before I left for the Philippines, Mr. Psinakis told me to check-in at the Manila Hotel or the Plaza
Hotel, and somebody would just deliver the materials I would need. I disapproved of this, and I told him
I would prefer a place that is familiar to me or who is close to me. Mr. Psinakis suggested the residence
of Sen. Salonga.
"And so, I arrived in Manila on August 20, 1980, I made a call to Sen. Salonga, but he was out. The
next day I made a call again. I was able to contact him. I made an appointment to see him. I went to Sen.
Salonga's house the following day. I asked Sen. Salonga if someone had given him an attache case for
me. He said nobody. Afterwards, I made three calls to Sen. Salonga. Sen. Salonga told me 'call me again
on the 31st of August. I did not call him, I just went to his house on the 31st of August at 4 P.M. A few
minutes after my arrival Atty. Renato Taada arrived. When he had a chance to be near me, he (Atty.
Taada) whispered to me that he had the attache case and the materials I needed in his car. These
materials were given to me by Atty. Taada when I alighted at the Broadway Centrum.' (Emphasis
supplied)

"A. Not to my knowledge.

COURT TO WITNESS:

"Q. Were you told that Mr. Salonga would be present in the party?

"A. Only political discussion, your Honor." (TSN, July 8, 1981, pp. 69-84)
Counsel for petitioner also asked Lovely whether in view of the latter's awareness of the physical
condition of petitioner, he really implicated petitioner in any of the bombings that occurred in Metro
Manila. The fiscal objected without stating any ground. In sustaining the objection, the Court said:
"Sustained . . . The use of the word 'implicate' might expand the role of Mr. Salonga. In other words,
you are widening the avenue of Mr. Salonga's role beyond the participation stated in the testimony of
this witness about Mr. Salonga, at least, as far as the evidence is concerned, I supposed, is only being in
the house of Mr. Salonga which was used as the contact point. He never mentions Mr. Salonga about the
bombings. Now these words had to be put in the mouth of this witness. That would be unfair to Mr.
Salonga." (TSN. July 8, 1981, p. 67)
Respondent judge further said:
"COURT:
"As the Court said earlier, the parts or portions affecting Salonga only refers to the witness coming to
Manila already then the matter of . . . I have gone over the statement and there is no mention of Salonga
insofar as activities in the United States is concerned. I don't know why it concerns this crossexamination.
"ATTY. YAP:
"Because according to him, it was in pursuance of the plan that he came to Manila.
"COURT:

During the cross-examination, counsel for petitioner asked Lovely about the so-called destabilization
plan which the latter mentioned in his sworn statement:

"According to him it was Aquino, Daza, and Psinakis who asked him to come here, but Salonga was
introduced only when he (Lovely) came here. Now, the tendency of the question is also to connect
Salonga to the activities in the United States. It seems to be the thrust of the questions.

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"COURT:
"In other words, the point of the Court as of the time when yon asked him question, the focus on
Salonga was only from the time when he met Salonga at Greenhills. It was the first time that the name
of Salonga came up. There was no mention of Salonga in the formulation of the destabilization plan as
affirmed by him. But you are bringing this up although you are only cross-examining for Salonga as if
his (Lovely's) activities in the United States affected Salonga." (TSN, July 8, 1981, pp. 73-74)
Apparently, the respondent judge wanted to put things in proper perspective by limiting the petitioner's
alleged "participation" in the bombing mission only to the fact that petitioner's house was used as a
"contact point" between Lovely and Taada, which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the respondent judge suddenly included
the "activities" of petitioner in the United States as his basis for denying the motion to dismiss: LLpr
"On the activities of Salonga in the United States, the witness, Lovely, in one of his statements declared:
'To the best of my recollection he mentioned of some kind of violent struggle in the Philippines being
most likely should reforms be not instituted by President Marcos immediately.'
"It is therefore clear that the prosecution's evidence has established facts and circumstances sufficient
for a finding that excludes a Motion to Dismiss by respondent Salonga. The Movement for Free
Philippines is undoubtedly a force born on foreign soil, it appears to rely on the resources of foreign
entities, and is being (sic) on gaining ascendancy in the Philippines with the use of force and for that
purpose it has linked itself with even communist organizations to achieve its end. It appears to rely on
aliens for its supporters and financiers."

The jump from the "contact point" theory to the conclusion of involvement in subversive activities in
the United States is not only inexplicable but without foundation.

The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party in Los Angeles where
Senator Salonga was a guest is not proof of conspiracy. As stated by the petitioner, in his many years in
the turbulent world of politics, he has posed with all kinds of people in various groups and various
places and could not possibly vouch for their conduct. Commenting on the matter, newspaper columnist
Teodoro Valencia stated that Filipinos love to pose with important visitors and the picture proves
nothing.
It is likewise probable that a national figure and former politician of Senator Salonga's stature can
expect guests and visitors of all kinds to be visiting his home or office. If a rebel or subversive happens
to pose with the petitioner for a group picture at a birthday party abroad, or even visit him with others in
his home, the petitioner does not thereby become a rebel or subversive, much less a leader of a
subversive group. More credible and stronger evidence is necessary for an indictment. Nonetheless,
even if we discount the flaws in Lovely's testimony and dismiss the refutations and arguments of the
petitioner, the prosecution evidence is still inadequate to establish a prima facie finding.
The prosecution has not come up with even a single iota of evidence which could positively link the
petitioner to any proscribed activities of the Movement for Free Philippines or any subversive
organization mentioned in the complaint. Lovely had already testified that during the party of former
Congressman Raul Daza which was alleged to have been attended by a number of members of the MFP,
no political action was taken but only political discussion. Furthermore, the alleged opinion of the
petitioner about the likelihood of a violent struggle here in the Philippines if reforms are not instituted,
assuming that he really stated the same, is nothing but a legitimate exercise of freedom of thought and
expression. No man deserves punishment for his thoughts. Cogitationis poenam nemo meretur. And as
the late Justice Oliver W. Holmes stated in the case of U.S. v. Schwimmer, 279 U.S. 644, ". . . if there is
any principle of the Constitution that more imperatively calls for attachment than any other it is the
principle of free thought not free thought for those who agree with us but freedom for the thought
that we hate."

(2) Because "he mentioned some kind of violent struggle in the Philippines being most likely should
reforms be not instituted by President Marcos immediately."

We have adopted the concept that freedom of expression is a "preferred" right and, therefore, stands on a
higher level than substantive economic or other liberties. The primacy, the high estate accorded freedom
of expression is a fundamental postulate of our constitutional system. (Gonzales v. Commission on
Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut (302 U.S. 319) this
must be so because the lessons of history, both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form of freedom. Protection is especially
mandated for political discussions. This Court is particularly concerned when allegations are made that
restraints have been imposed upon mere criticisms of government and public officials. Political
discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal
indictments.

The "contact point" theory or what the petitioner calls the "guilt by visit or guilt by association" theory
is too tenuous a basis to conclude that Senator Salonga was a leader or mastermind of the bombing
incidents. To indict a person simply because some plotters, masquerading as visitors, have somehow met
in his house or office would be to establish a dangerous precedent. The right of citizens to be secure
against abuse of governmental processes in criminal prosecutions would be seriously undermined.

The United States Supreme Court in Noto v. United States (367 U.S. 290) distinguished between the
abstract teaching of the moral propriety or even moral necessity for a resort to force and violence and
speech which would prepare a group for violent action and steel it to such action. In Watts v. United
States (394 U.S. 705), the American court distinguished between criminal threats and constitutionally
protected speech.

The testimony of Victor Lovely against petitioner Salonga is full of inconsistencies. Senator Salonga
and Atty. Renato Taada could not have whispered to one another because the petitioner is almost totally
deaf. Lovely could not have met Senator Salonga at a Manglapus party in Washington, D.C. in 1977
because the petitioner left for the United States only on November, 1978. Senator Salonga denies having
known Mr. Lovely in the United States or in the Philippines. He states that he has hundred of visitors
from week to week in his residence but cannot recall any Victor Lovely.

It stated:

The respondents admit that no evidence was presented directly linking petitioner Salonga to actual acts
of violence or terrorism. There is no proof of his direct participation in any overt acts of subversion.
However, he is tagged as a leader of subversive organizations for two reasons
(1) Because his house was used as a "contact point"; and

"We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory
term. For we must interpret the language Congress chose against the background of a profound national
commitment to the principle that debate on public issues should be uninhibited, robust, and wide open
and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials. New York Times Co. v. Sullivan (376 U.S. 254). The language of the

172

political arena, like the language used in labor disputed is often vituperative, abusive, and inexact. We
agree with petitioner that his only offense was a kind of very crude offensive method of stating a
political opposition to the President."
In the case before us, there is no teaching of the moral propriety of a resort to violence, much less an
advocacy of force or a conspiracy to organize the use of force against the duly constituted authorities.
The alleged remark about the likelihood of violent struggle unless reforms are instituted is not a threat
against the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly sharp attack
which is protected by the guarantee of free speech. Parenthetically, the American case of Brandenburg v.
Ohio (395 U.S. 444) states that the constitutional guarantees of free speech and free press do not permit
a State to forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce
such action. The words which petitioner allegedly used according to the best recollections of Mr. Lovely
are light years away from such type of proscribed advocacy. llcd
Political discussion even among those opposed to the present administration is within the protective
clause of freedom of speech and expression. The same cannot be construed as subversive activities per
se or as evidence of membership in a subversive organization. Under Presidential Decree No. 885,
Section 3, paragraph 6, political discussion will only constitute prima facie evidence of membership in a
subversive organization if such discussion amounts to:
"(6) Conferring with officers or other members of such association or organization in furtherance of any
plan or enterprise thereof."
As stated earlier, the prosecution has failed to produce evidence that would establish any link between
petitioner and any subversive organization. Even if we lend credence to Lovely's testimony that a
political discussion took place at Daza's birthday party, no proof whatsoever was adduced that such
discussion was in furtherance of any plan to overthrow the government through illegal means. The
alleged opinion that violent struggle is likely unless reforms are instituted by no means shows either
advocacy of or incitement to violence or furtherance of the objectives of a subversive organization.
Lovely also declared that he had nothing to do with the bombing on August 22, 1980, which was the
only bombing incident that occurred after his arrival in Manila on August 20, and before the YMCA
explosion on September 6, 1980. (See TSN, pp. 63-63, July 8, 1981). He further testified that:
"WITNESS:
"Actually, it was not my intention to do some kind of bombing against the government. My bombing
mission was directed against the particular family (referring to the Cabarrus family). [TSN, p. 11, July 9,
1981] [Rollo, p. 10]
Such a statement wholly negates any politically motivated or subversive assignment which Lovely was
supposed to have been commissioned to perform upon the orders of his co-accused and which was the
very reason why they were charged in the first place. The respondent judge also asked Lovely about the
possible relation between Cabarrus and petitioner:
"COURT:
"Q. Did you suspect any relation between Cabarrus and Jovito Salonga, why did you implicate Jovito
Salonga?
"A. No, your Honor. I did not try to implicate Salonga.

It should be noted that after Lovely's testimony, the prosecution manifested to the court that it was
adopting him as a prosecution witness. Therefore, the prosecution became irreversively bound by
Lovely's disclaimers on the witness stand, that it was not his intention "to do some kind of bombing
against the government" and that he "did not try to implicate Salonga", especially since Lovely is the
sole witness adopted by the prosecution who could supposedly establish the link between the petitioner
and the bombing incidents.

The respondent court should have taken these factors into consideration before concluding that a prima
facie case exists against the petitioner. Evidence must not only proceed from the mouth of a credible
witness but it must be credible in itself such as the common experience and observation of mankind can
approve as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case at bar, the
prosecution cannot even present a credible version of the petitioner's role in the bombings even if it
ignores the subsequent disclaimers of Lovely and without relying on mere affidavits including those
made by Lovely during his detention.
The resolution dated January 4, 1982 suffers from the same defect. In this resolution, Lovely's previous
declarations about the bombings as part of the alleged destabilization plan and the people behind the
same were accorded such credibility by the respondent judge as if they had already been proved beyond
reasonable doubt. Cdpr
The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive
trials. (Trocio v. Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a
preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional
due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause
it is not enough that the preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of
the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of
all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to
the guilt of the accused. Although there is no general formula or fixed rule for the determination of
probable cause since the same must be decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before the judge nor run
counter to the clear dictates of reasons (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391).
The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible
evidence might later turn up during trial for this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and
not denigrating constitutional rights. So it has been before. It should continue to be so. (Mercado v.
Court of First Instance of Rizal, 116 SCRA 93)
The Court had already deliberated on this case, a consensus on the Court's judgment had been arrived at,
and a draft ponencia was circulating for concurrences and separate opinions, if any, when on January 18,
1985, respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal Sergio Apostol to
drop the subversion case against the petitioner. Pursuant to instructions of the Minister of Justice, the
prosecution restudied its evidence and decided to seek the exclusion of petitioner Jovito Salonga as one
of the accused in the information filed under the questioned resolution.

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We were constrained by this action of the prosecution and the respondent Judge to withdraw the draft
ponencia from circulating for concurrences and signatures and to place it once again in the Court's
crowded agenda for further deliberations.

||| (Salonga v. Pao, G.R. No. 59524, [February 18, 1985], 219 PHIL 402-432)

Insofar as the absence of a prima facie case to warrant the filing of subversion charges is concerned, this
decision has been rendered moot and academic by the action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is not precluded from filing new
charges for the same acts because the petitioner has not been arraigned and double jeopardy does not
apply. In that sense, the case is not completely academic.
Recent developments in this case serve to focus attention on a not too well known aspect of the Supreme
Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State authority into areas reserved
by the Bill of Rights for the individual as constitutionally protected spheres where even the awesome
powers of Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling constitutional principles, precepts,
doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection
given by constitutional guarantees.
In dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a P1,195,200.00 bail bond as
excessive and, therefore, constitutionally void, escaped from the provincial jail while his petition was
pending. The petition became moot because of his escape but we nonetheless rendered a decision and
stated:
EN BANC
"The fact that the case is moot and academic should not preclude this Tribunal from setting forth in
language clear and unmistakable, the obligation of fidelity on the part of lower court judges to the
unequivocal command of the Constitution that excessive bail shall not be required."
In Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the Philippines could
validly be created through an executive order was mooted by Presidential Decree No. 15, the Center's
new charter pursuant to the President's legislative powers under martial law. Still, this Court discussed
the constitutional mandate on the preservation and development of Filipino culture for national identity.
(Article XV, Section 9, Paragraph 2 of the Constitution)
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the pendency of the case, 26
petitioners were released from custody and one withdrew his petition. The sole remaining petitioner was
facing charges of murder, subversion, and illegal possession of firearms. The fact that the petition was
moot and academic did not prevent this Court in the exercise of its symbolic function from
promulgating one of the most voluminous decisions ever printed in the Reports. LibLex
In this case, the respondents agree with our earlier finding that the prosecution evidence miserably fails
to establish a prima facie case against the petitioner, either as a co-conspirator of a destabilization plan
to overthrow the government or as an officer or leader of any subversive organization. They have taken
the initiative of dropping the charges against the petitioner. We reiterate the rule, however, that this
Court will not validate the filing of an information based on the kind of evidence against the petitioner
found in the records. prLL
WHEREFORE, the petition is DISMISSED for having become moot and academic.
SO ORDERED.

[G.R. No. 133486. January 28, 2000.]

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS,
respondent.
Quiason Makalintal Barot Torres & Ibarra for petitioner.
The Solicitor General for respondent.
SYNOPSIS
This is a petition for certiorari under Rule 65 of the Rules of Court filed by ABS-CBN Broadcasting
Corporation assailing the COMELEC En Banc Resolution No. 98-1419 dated April 21, 1998 approving
the issuance of a restraining order to stop petitioner ABS-CBN or any other groups, its agents or
representatives from conducting exit survey and to authorize the Honorable Chairman to issue the same.
Because of the issuance of this resolution, petitioner filed the instant case, and on May 9, 1998, the
Court issued the temporary restraining order prayed for by petitioner. The lone issue to be resolved in
this case is whether or not the respondent Comelec acted with grave abuse of discretion amounting to
lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the
petitioner or any other group, its agents or representatives from conducting exit polls during the May 11,
1998 elections.
The Supreme Court found the petition meritorious. The Court ruled that the holding of exit polls and the
dissemination of their results through mass media constitute an essential part of the freedoms of speech
and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest,

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orderly and credible elections. Moreover, the Comelec's concern with the possible noncommunicative
effect of exit polls disorder and confusion in the voting centers does not justify a total ban on
them. Undoubtedly, the assailed Comelec Resolution was too broad, since its application is without
qualification as to whether the polling is disruptive or not. Concededly, the Omnibus Election Code
prohibits disruptive behaviors around the voting centers. There was no showing, however, that exit polls
or the means to interview voters cause chaos in voting centers. Neither had any evidence been presented
proving that the presence of exit poll reporters near the election precincts tended to create disorder or
confuse the voters. Accordingly, the petition was granted and the temporary restraining order issued by
the Court was made permanent.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH AND
OF THE PRESS; NATURE AND SCOPE THEREOF. The freedom of expression is a fundamental
principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level
than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly
every other form of freedom." Our Constitution clearly mandates that no law shall be passed abridging
the freedom of speech or of the press. In the landmark case Gonzales v. Comelec, this Court enunciated
that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully
any matter of public interest without prior restraint. The freedom of expression is a means of assuring
individual self-fulfillment, of attaining the truth, of securing participation by the people in social and
political decision-making, and of maintaining the balance between stability and change. It represents a
profound commitment to the principle that debates on public issues should be uninhibited, robust, and
wide open. It means more than the right to approve existing political beliefs or economic arrangements,
to lend support to official measures, or to take refuge in the existing climate of opinion on any matter of
public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, we stress that the
freedom encompasses the thought we hate, no less than the thought we agree with. DTAaCE
2. ID.; ID.; ID.; ID.; LIMITATIONS; CLEAR AND PRESENT DANGER TEST. This Court adheres
to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso and
American Bible Society v. City of Manila; as well as in later ones, Vera v. Arca, Navarro v. Villegas,
Imbong v. Ferrer, Blo Umpar Adiong v. Comelec and, more recently, in Iglesia ni Cristo v. MTRCB. In
setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of
Justice Holmes: "The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and degree." A limitation on the
freedom of expression may be justified only by a danger of such substantive character that the state has
a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but
also present. "Present" refers to the time element; the danger must not only be probable but very likely
to be inevitable. The evil sought to be avoided must be so substantive as to justify a clamp over one's
mouth or a restraint of a writing instrument.
3. ID.; ID.; ID.; ID.; JUSTIFICATION FOR RESTRICTION. Doctrinally, the Court has always ruled
in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise
prior restraint is not to be presumed; rather the presumption is against its validity. And it is respondent's
burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed
brows, so it has been said. To justify a restriction, the promotion of a substantial government interest
must be clearly shown. Thus: "A government regulation is sufficiently justified if it is within the
constitutional power of the government, if it furthers an important or substantial government interest; if
the governmental interest is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that
interest." Hence, even though the government's purposes are legitimate and substantial, they cannot be

pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly
achieved.
4. ID.; ID.; ID.; ID.; TOTAL BAN ON EXIT POLL NOT JUSTIFIED. The Comelec's concern with
the possible noncommunicative effect of exit polls disorder and confusion in the voting centers
does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since
its application is without qualification as to whether the polling is disruptive or not. Concededly, the
Omnibus Election Code prohibits disruptive behavior around the voting centers. There is no showing,
however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any
evidence been presented proving that the presence of exit poll reporters near an election precinct tends
to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of
exit poll data and their use for any purpose. The valuable information and ideas that could be derived
from them, based on the voters' answers to the survey questions will forever remain unknown and
unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in
general would be deprived of studies on the impact of current events and of election-day and other
factors on voters' choices. In Daily Herald Co. vs. Munro, the US Supreme Court held that a statute, one
of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because
such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest
nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters
from outside influences is insufficient to justify speech regulation. Just as curtailing election-day
broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is
impermissible, so is regulating speech via an exit poll restriction. The absolute ban imposed by the
Comelec cannot, therefore, be justified. It does not leave open any alternative channel of
communication to gather the type of information obtained through exit polling. On the other hand, there
are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing
disorder and confusion that may be brought about by exit surveys.
5. ID.; ID.; ID.; ID.; EXIT POLLS DO NOT TRANSGRESS THE SANCTITY AND SECRECY OF
THE BALLOT. The contention of public respondent that exit polls indirectly transgress the sanctity
and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots
cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of
ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from
exhibiting the contents of their official ballots to other persons, from making copies thereof, or from
putting distinguishing marks thereon so as to be identified. Also proscribed is finding out contents of the
ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been
assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the
purpose of assuring that the votes have been cast in accordance with the instructions of a third party.
This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to
a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually
exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary.
Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of our people.

VITUG, J., separate opinion:

CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FREE SPEECH AND INFORMATION;
NOT ILLIMITABLE AND IMMUNE FROM THE VALID EXERCISE OF AN EVER DEMANDING
AND PERVASIVE POLICE POWER. While I understand what the ponencia is saying quite
laudably, I also appreciate, upon the other hand, the concern of the Commission on Elections, i.e., that

175

the conduct of exit polls can have some adverse effects on the need to preserve the sanctity of the ballot.
The Commission performs an indispensable task of ensuring free, honest, and orderly elections and of
guarding against any frustration of the true will of the people. Expectedly, it utilizes all means available
within its power and authority to prevent the electoral process from being manipulated and rendered an
absurdity. Like my colleagues, I greatly prize the freedom of expression but, so also, I cherish no less
the right of the people to express their will by means of the ballot. In any case, I must accept the reality
that the right to information and free speech is not illimitable and immune from the valid exercise of an
ever demanding and pervasive police power. Whether any kind of restraint should be upheld or declared
invalid in the proper balancing of interest is one that must be resolved at any given moment, not on
perceived circumstances, but on prevailing facts. aDIHCT
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHT TO FREE SPEECH; IF THE RIGHT TO
FREE SPEECH COLLIDES WITH A NORM OF CONSTITUTIONAL STATURE, THE RULE ON
HEAVY PRESUMPTION OF INVALIDITY DOES NOT APPLY. The majority opinion cites the
general rule that any restrictions to freedom of expression would be burdened with a presumption of
invalidity and should be greeted with "furrowed brows." While this has been the traditional approach,
this rule does not apply where, as in this case, the Comelec exercised its Constitutional functions of
securing the secrecy and sanctity of the ballots and ensuring the integrity of the elections. Thus, Mr.
Justice Feliciano in National Press Club (NPC) v. Comelec wrote: The technical effect of Article IX (C)
(4) of the Constitution may be seem to be that no presumption of invalidity arises in respect of
supervisory or regulatory authority on the part of the COMELEC for the purpose of securing equal
opportunity among candidates for political office, although such supervision or regulation may result in
some limitation of the right of free speech and free press. For supervision or regulation of the operations
of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable
rule is the general, time honored one that a statute is presumed to be constitutional and that the party
asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that
assertion. The NPC decision holds that if the right to free speech collides with a norm of constitutional
stature, the rule on heavy presumption of invalidity does not apply.
2. ID.; ID.; ID.; IF NO PRESUMPTION OF INVALIDITY ARISES, THERE IS NO OCCASION FOR
THE APPLICATION OF THE CLEAR AND PRESENT DANGER TEST. Our Constitution
mandates the Comelec to enforce and administer laws and regulations relative to the conduct of
elections and to secure the secrecy and sanctity of the ballots to ensure orderly, honest, credible and
peaceful elections. This Constitutional provision effectively displaces the general presumption of
invalidity in favor of the presumption that Comelec acted in the exercise of its constitutionally mandated
powers. If no presumption of invalidity arises, I see no occasion for the application of the "clear and
present danger test." As this Court, through Mr. Justice Mendoza, succinctly observed: . . . the clear-andpresent danger test is not, however, a sovereign remedy for all free speech problems. As has been
pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal
law and only later appropriated for free speech cases. For the criminal law is necessarily concerned with
the line at which innocent preparation ends and guilty conspiracy or attempt begins. Clearly, it is
inappropriate as a test for determining the constitutional validity of law which, like 11(b) of R.A. No.
6646, are not concerned with the content of political ads but only with their incidents. To apply the
clear-and-present danger test to such regulatory measures would be like using a sledgehammer to drive a
nail when a regular hammer is all that is needed.
DECISION
PANGANIBAN, J p:

The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in
the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls
properly conducted and publicized can be vital tools in eliminating the evils of election-fixing and
fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or
suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on
Elections (Comelec) en banc Resolution No. 98-1419 1 dated April 21, 1998. In the said Resolution, the
poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its
agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to
issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that
ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the
elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials
particularly for President and Vice President, results of which shall be [broadcast] immediately." 2 The
electoral body believed that such project might conflict with the official Comelec count, as well as the
unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had
not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually
conducted and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of
discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining
order enjoining the petitioner or any [other group], its agents or representatives from conducting exit
polls during the . . . May 11 elections." 3
In his Memorandum, 4 the solicitor general, in seeking to dismiss the Petition, brings up additional
issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the
assailed Comelec Resolution. LibLex
The Court's Ruling
The Petition 5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election
has already been held and done with. Allegedly, there is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998
election, its implications on the people's fundamental freedom of expression transcend the past election.
The holding of periodic elections is a basic feature of our democratic government. By its very nature,
exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a
task that could well crop up again in future elections. 6

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In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to
formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the extent of protection given by constitutional
guarantees." 7 Since the fundamental freedoms of speech and of the press are being invoked here, we
have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit
polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure to
exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over to
prevent a miscarriage of justice, 8 when the issue involves the principle of social justice or the
protection of labor, 9 when the decision or resolution sought to be set aside is a nullity, 10 or when the
need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available. 11
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty
(20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4,
1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and
to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of the
essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a
special civil action for certiorari is therefore justified.

Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or group of individuals
for the purpose of determining the probable result of an election by confidentially asking randomly
selected voters whom they have voted for, immediately after they have officially cast their ballots. The
results of the survey are announced to the public, usually through the mass media, to give an advance
overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our
electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the
mass media, committed to report balanced election-related data, including "the exclusive results of
Social Weather Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of
the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the
holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated
the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it
gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and
statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to
protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of
exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to
condition the minds of people and cause confusion as to who are the winners and the [losers] in the
election," which in turn may result in "violence and anarchy."

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in
violation of Section 2, Article V of the Constitution; 12 and relevant provisions of the Omnibus Election
Code. 13 It submits that the constitutionally protected freedoms invoked by petitioner "are not immune
to regulation by the State in the legitimate exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and
present danger of destroying the credibility and integrity of the electoral process," considering that they
are not supervised by any government agency and can in general be manipulated easily. He insists that
these polls would sow confusion among the voters and would undermine the official tabulation of votes
conducted by the Commission, as well as the quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more
narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering
this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press.
Nature and Scope of Freedoms
of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred'
right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his
must be so because the lessons of history, both political and legal, illustrate that freedom of thought and
speech is the indispensable condition of nearly every other form of freedom." 14
Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the
press. 15 In the landmark case Gonzales v. Comelec, 16 this Court enunciated that at the very least, free
speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public
interest without prior restraint. LLpr
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of
securing participation by the people in social and political decision-making, and of maintaining the
balance between stability and change. 17 It represents a profound commitment to the principle that
debates on public issues should be uninhibited, robust, and wide open. 18 It means more than the right
to approve existing political beliefs or economic arrangements, to lend support to official measures, or
to take refuge in the existing climate of opinion on any matter of public consequence. And paraphrasing
the eminent Justice Oliver Wendell Holmes, 19 we stress that the freedom encompasses the thought we
hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of
speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and
under all circumstances. 20 They are not immune to regulation by the State in the exercise of its police
power. 21 While the liberty to think is absolute, the power to express such thought in words and deeds
has limitations.
In Cabansag v. Fernandez 22 this Court had occasion to discuss two theoretical tests in determining the
validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted
in a number of cases, means that the evil consequence of the comment or utterance must be 'extremely
serious and the degree of imminence extremely high' before the utterance can be punished. The danger
to be guarded against is the 'substantive evil' sought to be prevented. . . ." 23

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"The 'dangerous tendency' rule, on the other hand, . . . may be epitomized as follows: If the words
uttered create a dangerous tendency which the state has a right to prevent, then such words are
punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness
be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is
sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive
evil which the legislative body seeks to prevent." 24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier
decisions in Primicias v. Fugoso 25 and American Bible Society v. City of Manila; 26 as well as in later
ones, Vera v. Arca, 27 Navarro v. Villegas, 28 Imbong v. Ferrer, 29 Blo Umpar Adiong v. Comelec 30
and, more recently, in Iglesia ni Cristo v. MTRCB. 31 In setting the standard or test for the "clear and
present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is
whether the words used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree." 32
A limitation on the freedom of expression may be justified only by a danger of such substantive
character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger
must not only be clear but also present. "Present" refers to the time element; the danger must not only be
probable but very likely to be inevitable. 33 The evil sought to be avoided must be so substantive as to
justify a clamp over one's mouth or a restraint of a writing instrument. 34
Justification for a
Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is
treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption
is against its validity. 35 And it is respondent's burden to overthrow such presumption. Any act that
restrains speech should be greeted with furrowed brows, 36 so it has been said. Cdpr
To justify a restriction, the promotion of a substantial government interest must be clearly shown. 37
Thus:
"A government regulation is sufficiently justified if it is within the constitutional power of the
government, if it furthers an important or substantial government interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest." 38
Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by
means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved.
39
The freedoms of speech and of the press should all the more be upheld when what is sought to be
curtailed is the dissemination of information meant to add meaning to the equally vital right of suffrage.
40 We cannot support any ruling or order "the effect of which would be to nullify so vital a
constitutional right as free speech." 41 When faced with borderline situations in which the freedom of a
candidate or a party to speak or the freedom of the electorate to know is invoked against actions
allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic.
There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and
the right to know are unduly curtailed. 42

True, the government has a stake in protecting the fundamental right to vote by providing voting places
that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity
and the integrity of the electoral process. However, in order to justify a restriction of the people's
freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far
outweigh them.
These freedoms have additional importance, because exit polls generate important research data which
may be used to study influencing factors and trends in voting behavior. An absolute prohibition would
thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for
election-day projections, but also for long-term research. 43
Comelec Ban on
Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its
constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting
that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press
freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and
present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has
the tendency to sow confusion considering the randomness of selecting interviewees, which further
make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in
harmony with the official count made by the Comelec . . . is ever present. In other words, the exit poll
has a clear and present danger of destroying the credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the
interviewees or participants are selected at random, so that the results will as much as possible be
representative or reflective of the general sentiment or view of the community or group polled. Second,
the survey result is not meant to replace or be at par with the official Comelec count. It consists merely
of the opinion of the polling group as to who the electorate in general has probably voted for, based on
the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the
integrity of the elections, which are exercises that are separate and independent from the exit polls. The
holding and the reporting of the results of exit polls cannot undermine those of the elections, since the
former is only part of the latter. If at all, the outcome of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls disorder and
confusion in the voting centers does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the polling
is disruptive or not. 44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the
voting centers. 45 There is no showing, however, that exit polls or the means to interview voters cause
chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll
reporters near an election precinct tends to create disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any
purpose. The valuable information and ideas that could be derived from them, based on the voters'
answers to the survey questions will forever remain unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists and the electorate in general would be deprived of
studies on the impact of current events and of election-day and other factors on voters' choices.
In Daily Herald Co. v. Munro, 46 the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was
impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least

178

restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible,
so is regulating speech via an exit poll restriction. 47

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on
May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec
en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.
SO ORDERED.

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any
alternative channel of communication to gather the type of information obtained through exit polling.
On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

||| (ABS-CBN Broadcasting Corp. v. COMELEC, G.R. No. 133486, [January 28, 2000], 380 PHIL 780804)

For instance, a specific limited area for conducting exit polls may be designated. Only professional
survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from
the voting center. They may be required to explain to voters that the latter may refuse to be interviewed,
and that the interview is not part of the official balloting process. The pollsters may further be required
to wear distinctive clothing that would show they are not election officials. 48 Additionally, they may be
required to undertake an information campaign on the nature of the exercise and the results to be
obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could
ensure a clean, safe and orderly election. prcd
For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are
randomly selected in each province; (2) residences to be polled in such communities are also chosen at
random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are
interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the
public only on the day after the elections. 49 These precautions, together with the possible measures
earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably
stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting elections, exit polls properly conducted and
publicized can be vital tools for the holding of honest, orderly, peaceful and credible elections; and
for the elimination of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of
the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters.
The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification.
Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from
making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of
disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of
voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance
with the instructions of a third party. This result cannot, however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of
whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal
their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to
minimize or suppress incidental problems in the conduct of exit polls, without transgressing the
fundamental rights of our people. cdrep

SECOND DIVISION
[G.R. No. L-23480. September 11, 1979.]
J.M. TUASON & CO., INC., petitioner, vs. HON. COURT OF APPEALS,
and GUILLERMO REOSA, respondents.
Araneta, Mendoza & Papa for petitioner.
Zosimo Rivar for respondents.
DECISION
CONCEPCION JR., J p:

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Petition for certiorari to review the decision of the Court of Appeals, Fifth
Division 1 in CA-G.R. No. 29135-R, entitled "J. M. Tuason & Co., Inc., plaintiff-appellee
vs. Guillermo Reosa, defendant-appellant," which reversed the decision and dismissed
the case rendered by the Court of First Instance of Rizal, Branch V, Quezon City (then
Judge Nicasio Yatco) in that case for ejectment (Civil Case No. Q-3318), with the
following dispositive portion: 2
"WHEREFORE, judgment is hereby rendered in this case
in favor of the plaintiff and against the defendant, ordering the latter
or any person claiming under him to remove their construction on the
property mentioned in the complaint and described in the plan Exhibit
B and to surrender possession thereof to plaintiff; to pay the sum of
P12.00 a month, by way of rentals from February 6, 1957, until
possession of the property is restored to plaintiff, and for him to pay
the costs.
"SO ORDERED."
It is not disputed that this case originated as an action for recovery of
possession (ejectment) instituted by the plaintiff (petitioner) corporation against the
private respondent Guillermo Reosa; that in the trial court, respondent Reosa admitted
that petitioner corporation is the owner of the disputed parcel of land covered by T.C.T.
No. 1267 of the Register of Deeds of Quezon City on which respondent constructed his
residence on February 6, 1967; that the portion occupied by the defendant consisted of
100 square meters; and that the reasonable rental value of the portion of land occupied by
respondent is P12 a month.
Respondent's defense to the action for ejectment was that he bought the
disputed portion of land from a certain Capt. Faustino C. Cruz, for the sum of
P3,600.00; 3 that said Faustino C. Cruz acquired the said portion from 3,000 square
meters of land acquired by virtue of a compromise agreement in Civil Case Nos. Q-135,
Q-139, Q-177 and Q-186 of the Court of First Instance of Rizal, Quezon City
Branch; 4 and that an in all Faustino C. Cruz sold to respondent 360 square meters of the
3,000 square meters allegedly allocated to the former in the compromise agreement.
The trial court ruled in favor of the petitioner in the ejectment case (Civil Case
No. Q-3318) on the grounds that petitioner is the registered owner of the questioned land
(Exh. A); that as owner, petitioner is entitled to possession as an attribute of ownership;
that respondent's claim of the right to possess the disputed land based on purchase of the
same from Capt. Faustino C. Cruz who is the supposed owner of the land by virtue of a
compromise agreement is without any legal basis, for Capt. Cruz was not a party in
interest in the said compromise agreement; that even admitting that said compromise
agreement created a beneficial right in favor of Capt. Cruz because of the agreement that
herein petitioner shall reserve lands (12,000 square meters) for persons including Capt.
Cruz, said beneficial rights were subject to suspensive conditions (payment to the
petitioner of P250,000 and delivery to the petitioner of lots marked "refund" as well as
approved by the National Housing Commission and the Bureau of Lands of the

Subdivision plan covering the entire property involved in the compromise agreement);
and said suspensive conditions were never fulfilled because the "Deudors," the other party
to the compromise agreement failed to fulfill said conditions. LibLex
Respondent Court of Appeals in reversing the trial court's decision based its
stand on its firm belief that the compromise agreement (Exhibit 1) between the petitioner
and the "Deudors" created a valid right in favor of Capt. Cruz to possess the property in
question; that this valid right of possession was transmitted to private respondent Reosa
when Cruz sold a portion of that land (360 square meters for P3,600), in 1956, to
Reosa; 5 that there is no evidence that the Deudors have not complied with the
conditions to be fulfilled under the compromise agreement; that there is no evidence that
the compromise agreement was rescinded or annulled; and that Capt. Cruz' right to
possess the disputed land being valid and enforceable he could validly assign the same to
respondent Reosa.
To Our mind, the principal issue to be resolved in this case is whether or not
private respondent Reosa's predecessor-in-interest in the disputed property namely, Capt.
Cruz, acquired a valid right to own and possess said land a right that he could have
legally transmitted to private respondent Reosa to entitle the latter to a better right to
possession against the admitted registered owner of the land.
An examination of the Deed of Sale (Exh. "2") which is the source and basis
of private respondent Reosa's claim of his right to possess the disputed land, reality
shows that the vendor Capt. Cruz claimed to be "the true and sole owner" of the parcels of
land, a portion of which was sold to respondent Reosa, "by virtue of the amicable
settlement of the case of Deudor, et al. vs. J.M. Tuason, et al., Civil Case No. Q-135 of the
Court of First Instance, Quezon City." It is, therefore, very clear that even Capt. Faustino
C. Cruz based his alleged true and sole ownership of the disputed land on the compromise
agreement.
A close scrutiny of Exhibit "1" immediately reveals in paragraph 8 (c) of the
same, that the value of the lands reserved for the residences of Gov. Alejo Santos, Atty.
Pastor L. de Guzman, and Capt. Faustino C. Cruz P12,000 square meters) which is
P250,000 shall be deducted from the amount that may be due the "Deudors." It is further
provided that the certificates of title to the same lands reserved for the above mentioned
persons shall be issued after delivery to the petitioner of the lots marked "refund" shall
have been effected and the subdivision plan approved by the National Housing
Commission and the Bureau of Lands. The compromise agreement did not provide for an
outright transfer of title to the beneficiaries (including the 3,000 square meters allotted to
Capt. Cruz), but subjected said transfer to suspensive conditions, namely, deduction of
P250,000 from the amount that may be due the "Deudors;" after delivery to the petitioner
of the lots marked "refund" shall have been affected; and after the subdivision plan is
approved by the National Planning Commission and the Bureau of Lands.
The compromise agreement was entered into on April 10, 1953, and Capt.
Cruz sold the disputed property to private respondent on April 14, 1956. What strikes Us
as unexplainable is why notwithstanding his claim of sole ownership of the disputed land

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as vendor in 1956, he did not possess any registered title to the same, if it were true that
he acquired title to the same land as the beneficiary by virtue of the compromise
agreement of 1953. Capt. Cruz, not being a registered owner of the disputed land at the
time, could not have assigned a better right to private respondent Reosa. It is obvious
that respondent Reosa never claimed ownership of the disputed land, and that he
admitted petitioner's ownership over the same. It is difficult to assail petitioner's argument
that the respondent Court of Appeals erred in stating that the original owner of the land in
question were the "Deudors" as even respondent Reosa never alleged that in his answer
nor presented evidence to that effect. Respondent Reosa continuously admitted that
petitioner is the registered owner of the disputed land. The Torrens Title of petitioner
(T.C.T. No. 1267 [37686-Rizal] of the Registry of Deeds of Quezon City) cannot be
assailed, the more so when private respondent admits petitioner's ownership of the
disputed land, and did not or cannot show any title to the same either in his name or that
of his predecessor-in-interest Capt. Cruz. LexLib
Petitioner called Our attention to the decision of the Court of Appeals in J.M.
Tuason & Co., Inc., et al. vs. Ponciano Hernandez and J.M. Tuason & Co., Inc. vs.
Rubillo San Diego, CA-G.R. Nos. 26696-R and 26697-R, promulgated January 31, 1963,
wherein said Appellate Court repudiated the claims in this case of private respondent
Reosa, thus:
"It is true that under Exh. 1, plaintiff agreed to reserve for
the residence of said captain (Captain Cruz) 3,000 square meters of
land consistent with the subdivision plan that may be finally approved
but the fact remains that the location of this 3,000 square meters lot is
indefinite, still to be designated and reserved in the future, and other
than the uncorroborated testimony of Faustino Cruz, which is,
however, contradicted by the testimony of plaintiff's surveyor there is
practically no evidence showing that said plaintiff had designated and
actually reserved for Cruz the 3,000 square meters lot mentioned in
the compromise agreement. No subdivision plan that has been finally
approved and attesting to the testimony of Faustino Cruz was adduced
in evidence. On the other hand, the obligation of the plaintiff to
reserve 3,000 square meters of land for Capt. Cruz arises only after
the delivery to the owners of the lots marked refund in Annex C shall
have been effected and the subdivision plan approved by the National
Planning Commission and the Bureau of Lands (Exh. 1, Item C, p.
6). However, it has not been shown that this condition precedent has
been complied with. On the contrary, we have reasonable ground to
believe that the Deudors failed to perform their part of the agreement,
so much so that in the above cited case of Deudors, et al. vs. J.M.
Tuason & Co., Inc., the Supreme Court rescinded the compromise
agreement and released herein plaintiff from its obligation arising
therefrom." (Emphasis for emphasis)

We are inclined to adhere to the aforementioned view, taking into

consideration the fundamental principle in law applicable to the circumstances of this
case that mere possession of whatever length cannot defeat the imprescriptible title to the
holder of registered Torrens Title to real property, and that registered real property under
the Torrens system cannot be acquired by acquisitive prescription. 6 The petitioner who is
the registered owner of the disputed land has a right to possess and recover the same, as
against private respondent Reosa who merely claims a right to possess from his
predecessor-in-interest Capt. Cruz who likewise never acquired any right to possess the
disputed property. Both Capt. Cruz and respondent Reosa cannot be considered exactly
as possessors in good faith because both of them knew at the time they entered into
possession that petitioner was the registered owner of the disputed land. Capt. Cruz
cannot be considered a possessor in good faith because as beneficiary of the compromise
agreement he should be in a position to know that there were suspensive conditions
attached to his possible acquisition of the disputed property and that if the conditions
were not fulfilled, his right as beneficiary would never arise. Aside from the compromise
agreement as the only basis of Capt. Cruz' alleged right to the property in question, he and
respondent Reosa were never able to prove transfer to ownership of the same from
petitioner to Capt. Cruz, thus strengthening the obvious fact that the suspensive
conditions imposed in the compromise agreement were never fulfilled and hence
petitioner never transferred title to the reserved properties in favor of the beneficiaries
therein. As registered owner of the land and in the absence of any equal or better right on
the part of respondent Reosa to possess the disputed land, petitioner is entitled to
possession and initiated the correct action when it brought Civil Case No. Q-3318 to
recover possession of the same.
WHEREFORE, the decision of the respondent Court of Appeals in CA-G.R.
No. 29135-R is hereby reversed and set aside and the decision of the Quezon City Court
of First Instance in Civil Case No. Q-3318, revived and affirmed, with costs against
private respondent Guillermo Reosa. LLjur
SO ORDERED.
||| (J.M. Tuason & Co., Inc. v. Court of Appeals, G.R. No. L-23480, [September 11, 1979], 181 PHIL
384-391)

This decision was affirmed by the Supreme Court when it

dismissed the petition for certiorari to review the same." (G.R. Nos. L21094 and 21047, Resolution dated April 22, 1963) LLjur

181

"SECTION 2. This Executive Order shall take effect immediately.

"Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and
eighty.

EN BANC
[G.R. No. 74457. March 20, 1987.]
RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COURT, THE STATION
COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE
REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY,
respondents.

(SGD.) FERDINAND E. MARCOS

President
Republic of the Philippines"
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984,
when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of
the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued
a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of
the case, the court sustained the confiscation of the carabaos and, since they could no longer be
produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality
of the executive order, as raised by the petitioner, for lack of authority and also for its presumed validity.
2
The petitioner appealed the decision to the Intermediate Appellate Court, * 3 which upheld the trial
court, ** and he has now come before us in this petition for review on certiorari. prcd

Ramon A. Gonzales for petitioner.

DECISION
CRUZ, J p:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades: "Strike but
hear me first!'" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality
of Executive Order No. 626-A. Cdpr
The said executive order reads in full as follows:
"WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and
the slaughtering of carabaos not complying with the requirements of Executive Order No. 626
particularly with respect to age;
"WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the
prohibition against interprovincial movement of carabaos by transporting carabeef instead; and.
"WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the
prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation;.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution, do hereby promulgate the following:
"SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless
of age, sex, physical condition or purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this Executive Order as amended shall be
subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in
the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may
see fit, in the case of carabaos.

The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that
the penalty is invalid because it is imposed without according the owner a right to be heard before a
competent and impartial court as guaranteed by due process. He complains that the measure should not
have been presumed, and so sustained, as constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President under Amendment No. 6 of the 1973
Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here.
The question raised there was the necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due
process of law. In doing so, however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming modesty in examining
constitutional questions, they are nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution
to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may
provide," final judgments and orders of lower courts in, among others, all cases involving the
constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made
in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the
need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice
Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by
simply presuming the constitutionality of a law when it is questioned. On the contrary, they should
probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so
heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the
task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy
of the bench, especially this Court. LLjur

182

The challenged measure is denominated an executive order but it is really presidential decree,
promulgating a new rule instead of merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of
his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his
judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature
failed or was unable to act adequately on any matter that in his judgment required immediate action, he
could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the
force and effect of law. As there is no showing of any exigency to justify the exercise of that
extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive
order. Nevertheless, since the determination of the grounds was supposed to have been made by the
President "in his judgment," a phrase that will lead to protracted discussion not really necessary at this
time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine
ourselves to the more fundamental question of due process.
It is part of the art of constitution-making that the provisions of the charter be cast in precise and
unmistakable language to avoid controversies that might arise on their correct interpretation. That is the
ideal. In the case of the due process clause, however, this rule was deliberately not followed and the
wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in
the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the
Committee on the Pill of Rights, who forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also conveniently resilient. This
was felt necessary because due process is not, like some provisions of the fundamental law, an "iron
rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility
must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make
it adapt easily to every situation, enlarging or constricting its protection as the changing times and
circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific description of due process lest
they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need
to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of
the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and
exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the
U.S. Supreme Court, for example, would go no farther than to define due process - and in so doing sums
it all up as nothing more and nothing less than "the embodiment of the sporting idea of fair play." 12
When the barons of England extracted from their sovereign liege the reluctant promise that that Crown
would thenceforth not proceed against the life, liberty or property of any of its subjects except by the
lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny
that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King
John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to
all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is
entitled to have his say in a fair and open hearing of his cause. prLL

The closed mind has no place in the open society. It is part of the sporting idea of fair play to hear "the
other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously,
one side is only one-half of the question; the other half must also be considered if an impartial verdict is
to be reached based on an informed appreciation of the issues in contention. It is indispensable that the
two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after

examination of the problem not from one or the other perspective only but in its totality. A judgment
based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted
with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of
power.
The minimum requirements of due process are notice and hearing 13 which, generally speaking, may
not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a
gratifying commentary on our judicial system that the jurisprudence of this country is rich with
applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair
play. We have consistently declared that every person, faced by the awesome power of the State, is
entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the
famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be
secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the
due process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number
of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human experience or there is a rational connection
between the fact proved and the fact ultimately presumed therefrom. 15 There are instances when the
need for expeditious action will justify omission of these requisites, as in the summary abatement of a
nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate
danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and
narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the country he
has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and
bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be
omitted without violation of due process in view of the nature of the property involved or the urgency of
the need to protect the general welfare from a clear and present danger. cdll
The protection of the general welfare is the particular function of the police power which both restraints
and is restrained by due process. The police power is simply defined as the power inherent in the State
to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it
extends to all the great public needs and is described as the most pervasive, the least limitable and the
most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain.
The individual, as a member of society, is hemmed in by the police power, which affects him even
before he is born and follows him still after he is dead from the womb to beyond the tomb in
practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often
unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public
welfare, its regulation under the police power is not only proper but necessary. And the justification is
found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending
the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain
conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that
"present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small
farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the
face of the worsening energy crisis and the increased dependence of our farms on these traditional
beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect
and preserve them.

183

A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the
registration, branding and slaughter of large cattle was claimed to be a deprivation of property without
due process of law. The defendant had been convicted thereunder for having slaughtered his own
carabao without the required permit, and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals
and the reduction of their number had resulted in an acute decline in agricultural output, which in turn
had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent
increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for
the registration and branding of these animals. The Court held that the questioned statute was a valid
exercise of the police power and declared in part as follows:
"To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the
interests of the public generally, as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals. . . .
"From what has been said, we think it is clear that the enactment of the provisions of the statute under
consideration was required by `the interests of the public generally, as distinguished from those of a
particular class' and that the prohibition of the slaughter of carabaos for human consumption, so long as
these animals are fit for agricultural work or draft purposes was a `reasonably necessary' limitation on
private ownership, to protect the community from the loss of the services of such animals by their
slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy
the luxury of animal food, even when by so doing the productive power of the community may be
measurably and dangerously affected."

Even if a reasonable relation between the means and the end were to be assumed, we would still have to
reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright
confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities,
usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was
fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the
challenged measure, significantly, no such trial is prescribed, and the property being transported is
immediately impounded by the police and declared, by the measure itself, as forfeited to the
government.

In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were
returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond
of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by
the trial court. The executive order defined the prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright. The measure struck at once and pounced upon
the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of
elementary fair play.
It has already been remarked that there are occasions when notice and hearing may be validly dispensed
with notwithstanding the usual requirement for these minimum guarantees of due process. It is also
conceded that summary action may be validly taken in administrative proceedings as procedural due
process is not necessarily judicial only. 20 In the exceptional cases accepted, however, there is a
justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem
sought to be corrected and the urgency of the need to correct it. cdphil

In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor
man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the
purpose sought to be achieved and not unduly oppressive upon individuals, again following the abovecited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at
least seven years old if male and eleven years old if female upon issuance of the necessary permit, the
executive order will be conserving those still fit for farm work or breeding and preventing their
improvident depletion. llcd

In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory
treatment. The properties involved were not even inimical per se as to require their instant destruction.
There certainly was no reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under
the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is
penal in nature, the violation thereof should have been pronounced not by the police only but by a court
of justice, which alone would have had the authority to impose the prescribed penalty, and only after
trial and conviction of the accused.

But while conceding that the amendatory measure has the same lawful subject as the original executive
order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be
a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes
an absolute ban not on the slaughter of the carabaos but on their movement, providing that "no carabao
regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one
province to another." The object of the prohibition escapes us. The reasonable connection between the
means employed and the purpose sought to be achieved by the questioned measure is missing.

We also mark, on top of all this, the questionable manner of the disposition of the confiscated property
as prescribed in the questioned executive order. It is there authorized that the seized property shall "be
distributed to charitable institutions and other similar institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The
phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations that the said officers must observe
when they make their distribution. There is none. Their options are apparently boundless. Who shall be
the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the
officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in
their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping
authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate
and therefore invalid delegation of legislative powers.

We do not see how the prohibition of the interprovincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one province will not prevent their
slaughter there, any more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could
be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live
animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is
no reason either to prohibit their transfer as, not to be flippant, dead meat.

To sum up then, we find that the challenged measure is an invalid exercise of the police power because
the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law

184

and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated
is denied the right to be heard in his defense and is immediately condemned and punished. The
conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender
is a clear encroachment on judicial functions and militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who
are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons,
we hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander who confiscated the
petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its
mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President,
to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it.
Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all
their superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this
case would never have reached us and the taking of his property under the challenged measure would
have become a fait accompli despite its invalidity. We commend him for his spirit. Without the present
challenge, the matter would have ended in that pump boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights. LLpr
The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke
them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They
become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright
and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed
above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.
SO ORDERED.
||| (Ynot v. Intermediate Appellate Court, G.R. No. 74457, [March 20, 1987], 232 PHIL 615-632)

EN BANC
[G.R. No. 76180. October 24, 1986.]
SATURNINO V. BERMUDEZ, petitioner.
SYLLABUS
1. REMEDIAL LAW; DISMISSAL OF PETITIONS; LACK OF JURISDICTION AND LACK OF
CAUSE OF ACTION, VALID GROUNDS. The petition is dismissed outright for lack of jurisdiction
and for lack of cause of action. Prescinding from petitioner's lack of personality to sue or to bring this
action (Tan vs. Macapagal, 43 SCRA 677). it is elementary that this Court assumes no jurisdiction over
petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against the
incumbent Presidents of the Republic. President Corazon C. Aquino, and it is equally elementary that
incumbent Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure. The petition furthermore states no cause of action. Petitioner's allegation of
ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public
record and common public knowledge that the Constitutional Commission refers therein to incumbent
President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and
provides for the extension of their term to noon of June 30, 1992 for purpose of synchronization of
elections. Hence the second paragraph of the cited section provides for the holding on the second
Monday of May, 1992 of the first regular elections for the President and Vice-President under said 1986
Constitution.
MELENCIO-HERRERA, J., concurring:
1. REMEDIAL LAW; DISMISSAL OF PETITION, PROPER IN CASE AT BAR; SUPREME COURT
HAS NO ORIGINAL JURISDICTION OVER PETITIONS FOR DECLARATORY RELIEF. As to
lack of cause of action, the petitioner's prayer for a declaration as to who were elected President and
Vice-President in the February 7, 1986 elections should be addressed not to this court but to other
departments of government constitutionally burdened with the task of making that declaration. The 1935
Constitution, the 1973 Constitution an amended, and the 1986 Draft Constitution uniformly provide that
boards of canvassers in each province and city shall certify who were elected President and Vice
President in their respective areas. The certified returns are transmitted to the legislature which
proclaims, through the designated Presiding Head, who were duly elected. Copies of the certified
returns from the provincial and city boards of canvassers have not been furnished this Court nor is there

185

any need to do so. In the absence of a legislature, we cannot assume the function of stating, and neither
do we have any factual or legal capacity to officially declare, who were elected President and Vice
President in the February 7, 1986 elections.
RESOLUTION

Supremacy of the Constitution etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton
U. Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reasons, which are fully applicable to the petition at bar, mutatis mutandis, there
can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the
incumbent and legitimate President and Vice President of the Republic of the Philippines.

PER CURIAM p:
ACCORDINGLY, the petition is hereby dismissed.
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first
paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986
Constitution, which provides in full as follows:

||| (Saturnino V. Bermudez, G.R. No. 76180 (Resolution), [October 24, 1986], 229 PHIL 185-190)

"Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7,
1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30,
1992."
"The first regular elections for the President and Vice-President under this Constitution shall be held on
the second Monday of May, 1992."
Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare
and answer the question of the construction and definiteness as to who, among the present incumbent
President Corazon Aquino and Vice President Salvador Laurel and the elected President Ferdinand E.
Marcos and Vice President Arturo M. Tolentino being referred to under the said Section 7 (sic) of
ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . . . "

EN BANC
[G.R. No. L-10520. February 28, 1957.]
LORENZO M. TAADA and DIOSDADO MACAPAGAL, petitioners, vs. MARIANO JESUS
CUENCO, FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA CAYETANO, MANUEL
SERAPIO, PLACIDO REYES, and FERNANDO HIPOLITO, in his capacity as cashier and disbursing
officer, respondents.
Taada, Teehankee & Macapagal for petitioners.

The petition is dismissed outright for lack of jurisdiction and for lack of cause of action. prLL
Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon, Jr. for respondents.
Prescinding from petitioner's lack of personality to sue or to bring this action (Tan vs. Macapagal, 43
SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief.
More importantly, the petition amounts in effect to a suit against the incumbent President of the
Republic, President Corazon C. Aquino, and it is equally elementary that incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure.
The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of
the aforequoted provision is manifestly gratuitous, it being a matter of public record and common public
knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino
and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their
term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second
paragraph of the cited section provides for the holding on the second Monday of May, 1992 of the first
regular elections for the President and Vice-President under said 1986 Constitution. In previous cases,
the legitimacy of the government of President Corazon C. Aquino was likewise sought to be questioned
with the claim that it was not established pursuant to the 1973 Constitution. The said cases were
dismissed outright by this court which held that:
"Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of
the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the judgment; they have accepted the
government of President Corazon C. Aquino which is in effective control of the entire country so that it
is not merely a de facto government but in fact and law a de jure government. Moreover, the community
of nations has recognized the legitimacy of the present government. All the eleven members of this
Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her
government." (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better
Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for

SYLLABUS
1. CONSTITUTIONAL LAW; SELECTION OF MEMBERS OF THE SENATE ELECTORAL
TRIBUNAL; NATURE OF TRIBUNAL. Although the Constitution provides that the Senate shall
choose six (6) Senators to be members of the Senate Electoral Tribunal, the letter is part neither of
Congress nor of the Senate. (Angara vs. Electoral Commission, 63 Phil., 139; Suanes vs. Chief
Accountant, 81 Phil., 818; 46 Off. Gaz., 462.)
2. ID.; ID.; MEANING OF "POLITICAL QUESTION"; CASE AT BAR. The term "political
question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy.
It refers to those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government (16 C. J. S., 413). It is concerned with issues
dependent upon the wisdom, not legality, of a particular measure. In the case at bar, the question for
determination is whether the election of two senators, by the Senate, as members of the Senate Electoral
Tribunal, upon nomination by another senator, who is a member and spokesman of the party having the
largest number of votes in the Senate, on behalf of its Committee on Rules, contravenes the
constitutional mandate that said members of the tribunal shall be chosen "upon nomination *** of the
party having the second largest number of votes" in the Senate, and hence, is null and void. This is not a
political question. The Senate is not clothed with "full discretionary authority" in the choice of members
of the Senate Electoral Tribunal. The exercise of its power thereon is subject to constitutional
limitations. It is clearly within the legitimate province of the judicial department to pass upon the
validity of the proceedings in connection therewith. Hence, this Court has, not only jurisdiction, but,
also the duty, to consider and determine the principal issue raised by the parties herein.
3. ID.; ID.; MAIN OBJECTION IN PROVIDING THE ESTABLISHMENT OR ELECTORAL
TRIBUNALS. The main objective of the framers of the Constitution in providing for the

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establishment, first, of an Electoral Commission, and then of one Electoral Tribunal for each House of
Congress was to insure the exercise of judicial impartiality in the disposition of election contests
affecting members of the lawmaking body. To achieve this purpose, two devices were resorted to,
namely: (a) the party having the largest number of votes, and the party having the second largest number
of votes, in the National Assembly or in each House of Congress, were given the same number of
representatives in the Electoral Commission or Tribunal so that they may realize that partisan
considerations could not control the adjudication of said cases, and thus be induced to act with greater
impartiality; and (b) the Supreme Court was given in said body the same number of representatives as
each one of said political parties, so that the influence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
4. ID.; ID.; MOST VITAL FEATURE OF ELECTORAL TRIBUNALS. The most vital feature of the
Electoral Tribunals is the equal representation of the parties having the largest and the second largest
number of votes in each House therein, and the resulting equilibrium to be maintained by the Justices of
the Supreme Court as members of said Tribunals.
5. ID.; ID.; PROCEDURE PRESCRIBED FOR SELECTION OF MEMBERS; COMPLIANCE WITH
PROCEDURE MANDATORY. The framers of the Constitution intended to prevent the majority
party from controlling the Electoral Tribunals, and the structure thereof is founded upon the equilibrium
between the majority and the minority parties therein, with the Justice of the Supreme Court, who are
members of said Tribunals, holding the resulting balance of power. The procedure prescribed in section
11 of Article VI of the Constitution for the selection of members of the Electoral Tribunals is vital to the
role they are called upon to play. It constitutes the essence of said Tribunals. Hence, compliance with
said procedure is mandatory, and acts performed in violation thereof are null and void.
6. ID.; ID.; PRESENT SITUATION NOT FORESEEN BY FRAMERS OF THE CONSTITUTION;
SPIRIT OF THE LAW PREVAILS OVER ITS LETTER. While it is true that the membership of the
Senate Electoral Tribunal, in the case at bar, would in effect be limited to seven (7), instead of nine (9),
members it must be conceded that the present composition of the Senate, wherein twenty-three (23) of
its members belong to one party and one (1) member belongs to another, was not foreseen by the
framers of the Constitution. Furthermore, the spirit of the law prevails over its letter, and the solution
herein adopted maintains the spirit of the Constitution, for partisan considerations cannot be decisive in
a tribunal consisting of three (3) Justices of the Supreme Court, three (3) members nominated by the
majority party and either one (1) or two (2) members nominated by the party having the second largest
number of votes in the House concerned.
7. ID,; ID.; ID.; MODERATING ROLE OF JUSTICES OF THE SUPREME COURT. If the
Nacionalista Party would be allowed to nominate five (5) members to the Senate Electoral Tribunal
instead of three (3), it would have the absolute majority, since there would be one (1) member of the
Citizens Party and three (3) members of the Supreme Court, and hence, the philosophy underlying the
Constitution would be entirely upset. The equilibrium between the political parties therein would be
destroyed, and, what is worse, the decisive moderating role of the Justice of the Supreme Court would
be wiped out, and, in lieu thereof, the door would be thrown wide open for the predominance of political
considerations in the determination of election protests pending before said Tribunal, which is precisely
what the fathers of our Constitution earnestly strove to forestall.
8. ID.; ID.; RELIANCE BY THE CONSTITUTION UPON THE METHOD OF SELECTION
ESTABLISHED THEREIN. When the election of members of Congress to the Electoral Tribunal is
made dependent upon the nomination of the political parties referred to in the Constitution, the latter
thereby indicates its reliance upon the method of selection thus established, regardless of the individual
qualities of those chosen therefor. The delegates to the Convention did not ignore the fact that the
Constitution must limit itself to giving general patterns or norms of action. In connection, particularly
with the composition of the Electorals, they believed that, even the most well meaning individuals often
find it difficult to shake of the bias and prejudice created by political antagonisms and to resist the
demands of political exigencies, the pressure of which is bound to increase in proportion to the degree
of predominance of the party from which it comes.
9. ID.; ID,; ID.; WAIVER OF CONSTITUTIONAL PROVISIONS INTENDED FOR ONE'S BENEFIT
Although "an individual may waive constitutional provisions intended for his benefit," particularly

those meant for the protection of his property, and, sometimes, even those tending "to secure his
personal liberty" the power to waive does not exist when "public policy or public morals" are involved.
(11 Am. Jur. 765; I Cooley's Constitutional Limitations, pp. 368-371) The procedure outlined in the
Constitution for the organization of the Electoral Tribunals was adopted in response to the demands of
the commonweal, and it has been held that "where a statute is founded on public policy, those to whom
it applies should not be permitted to waive its provisions" (82 C. J. S., 874).
10. ID.; ACTS OF CONGRESS; AUTHORITY OF COURTS TO PASS UPON THE
CONSTITUTIONALITY. The provision in the Constitution vesting the legislative power in the
Congress of the Philippines does not detract from the power of the courts to pass upon the
constitutionality of act of Congress. Since judicial power includes the authority to inquire into the
legality of statutes enacted by the two Houses of Congress, and approved by the Executive there can be
no reason why the validity of an act of one of said Houses like that of any other branch of the
Government, may not be determined in the proper actions. In fact, whenever the conducting claims of
the parties to a litigation cannot properly be settled without inquiring into the validity of an act of
Congress or of either House thereof, the courts have, not only jurisdiction to pass upon said issue, but,
also, the duty to do so, which cannot be evaded without violating the fundamental law and paving the
way to its eventual destruction.
11. STATUTORY CONSTRUCTION; DOCTRINE OF CONTEMPORANEOUS OR PRACTICAL
CONSTRUCTION; WHEN APPLICABLE. As a general rule, it is only in cases of substantial doubt
and ambiguity that the doctrine of contemporaneous or practical construction has any application.
Where the meaning of a constitutional provision is clear, a contemporaneous or practical executive
interpretation thereof is entitled to no weight and will not be allowed to distort or in any way change its
natural meaning. The reason is that the application of the doctrine of contemporaneous construction is
more restricted as applied to the interpretation of constitutional provisions than when applied to
statutory provisions, and that, except as to matters committed by the Constitution itself to the discretion
of some other department, contemporary or practical construction is not necessarily binding upon the
courts even in a doubtful case. Hence if in the judgment of the court, such construction is erroneous and
its further application is not made imperative by any paramount consideration of public policy, it may be
rejected (16 C. J. S., 71-72)
12. ID.; CONFLICT BETWEEN SPIRIT AND LETTER OF A STATUTE. As a general rule of
statutory construction, the spirit or intention of a statute prevails over the letter thereof, and whatever is
within the spirit of a statute is within the statute although it is not within the letter thereof, while that
which is within the letter, but not within the spirit of a statute, is not within the statute, but, the letter of
it is not to be disregarded on the pretext of pursuing its spirit. (82 C.J.S., 613).
DECISION
CONCEPCION, J p:
Petitioner Lorenzo M. Taada is a member of the Senate of the Philippines, and President of the Citizens
Party, whereas petitioner Diosdado Macapagal, a member of the House of Representatives of the
Philippines, was one of the official candidates of the Liberal Party for the Senate, at the general
elections held in November, 1955, in which Pacita Madrigal Warns, Lorenzo Sumulong, Quintin
Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto, Domocao Alonto and Decoroso Rosales,
were proclaimed elected. Subsequently, the election of these Senators-elect who eventually assumed
their respective seats in the Senate was contested by petitioner Macapagal, together with Camilo
Osias, Geronima Pecson, Macario Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian
who had, also, run for the Senate, in said election in Senate Electoral Case No. 4, now pending
before the Senate Electoral Tribunal.
The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias, on
behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano Primicias,
as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator Taada, on behalf

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of the Citizens Party, said petitioner was next chosen by the Senate as member of said Tribunal. Then,
upon nomination of Senator Primicias, on behalf of the Committee on Rules of the Senate, and over the
objections of Senators Taada and Sumulong, the Senate choose respondents Senators Mariano J.
Cuenco and Francisco A. Delgado as members of the same Electoral Tribunal. Subsequently, the
Chairman of the latter appointed: (1) Alfredo Cruz and Catalina Cayetano, as technical assistant and
private secretary, respectively, to Senator Cuenco, as supposed member of the Senate Electoral Tribunal,
upon his recommendation of said respondents; and (2) Manuel Serapio and Placido Reyes, as technical
assistant and private secretary, respectively to Senator Delgado, as supposed member of said Electoral
Tribunal, and upon his recommendation.
Soon, thereafter, Senator Lorenzo M. Taada and Congressman Diosdado Macapagal instituted the case
at bar against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano, Manuel Serapio
and Placido Reyes, as well as Fernando Hipolito, in his capacity as Cashier and Disbursing Officer of
the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956, as well as at present, the
Senate consists of 23 Senators who belong to the Nacionalista Party, and one (1) Senator namely,
petitioner, Lorenzo M. Taada belonging to the Citizens Party; that the Committee on Rules for the
Senate, in nominating Senators Cuenco and Delgado, and the Senate, in choosing these respondents, as
members of the Senate Electoral Tribunal, had "acted absolutely without power or color of authority and
in clear violation . . . of Article VI, Section 11 of the Constitution"; that "in assuming membership in the
Senate Electoral Tribunal, by taking the corresponding oath of office therefor", said respondents had
"acted absolutely without color of appointment or authority and are unlawfully, and in violation of the
Constitution, usurping, intruding into and exercising the powers of members of the Senate Electoral
Tribunal"; that, consequently, the appointments of respondents, Cruz, Cayetano, Serapio and Reyes, as
technical assistants and private secretaries to Senators Cuenco and Delgado who caused said
appointments to be made as members of the Senate Electoral Tribunal, are unlawful and void; and
that Senators Cuenco and Delgado "are threatening and are about to take cognizance of Electoral Case
No. 4 of the Senate Electoral Tribunal, as alleged members thereof, in nullification of the rights of
petitioner Lorenzo M. Taada, both as a Senator belonging to the Citizens Party and as representative of
the Citizens Party in the Senate Electoral Tribunal, and in deprivation of the constitutional rights of
petitioner Diosdado Macapagal and his co-protestants to have their election protest tried and decided by
an Electoral Tribunal composed of not more than three (3) senators chosen by the Senate upon
nomination of the party having the largest number of votes in the Senate and not more than three (3)
Senators upon nomination of the party having the second largest number of votes therein, together with
three (3) Justices of the Supreme Court to be designated by the Chief Justice, instead of by an Electoral
Tribunal packed with five members belonging to the Nacionalista Party, which is the rival party of the
Liberal Party, to which the petitioner Diosdado Macapagal and his co-protestants in Electoral Case No.
4 belong, the said five (5) Nacionalista Senators having been nominated and chosen in the manner
alleged . . . herein- above."
Petitioners pray that:
"1. Upon petitioners' filing of a bond in such amount as may be determined by this Honorable Court, a
writ of preliminary injunction be immediately issued directed to respondents Mariano J. Cuenco,
Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, restraining
them from continuing to usurp, intrude into and/or hold or exercise the said public offices respectively
being occupied by them in the Senate Electoral Tribunal, and to respondent Fernando Hipolito
restraining him from paying the salaries of respondents Alfredo Cruz, Catalina Cayetano, Manuel
Serapio and Placido Reyes, pending this action.
"2. After hearing, judgment be rendered ousting respondents Mariano J. Cuenco, Francisco A. Delgado,
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes from the aforementioned public
offices in the Senate Electoral Tribunal and that they be altogether excluded therefrom and making the
preliminary injunction permanent, with costs against the respondents."
Respondents have admitted the main allegations of fact in the petition, except insofar as it questions the
legality and validity of the election of respondents Senators Cuenco and Delgado, as members of the
Senate Electoral Tribunal, and of the appointment of respondent Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes as technical assistants and private secretaries to said respondents

Senators. Respondents, likewise, allege, by way of special and affirmative defenses, that: (a) this Court
is without power, authority of jurisdiction to direct or control the action of the Senate in choosing the
members of the Electoral Tribunal; and (b) that the petition states no cause of action, because "petitioner
Taada has exhausted his right to nominate after he nominated himself and refused to nominate two (2)
more Senators", because said petitioner is in estoppel, and because the present action is not the proper
remedy.
I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the power to choose
six (6) Senators as members of the Senate Electoral Tribunal has been expressly conferred by the
Constitution upon the Senate, despite the fact that the draft submitted to the constitutional convention
gave to the respective political parties the right to elect their respective representatives in the Electoral
Commission provided for in the original Constitution of the Philippines, and that the only remedy
available to petitioners herein "is not in the judicial forum", but "to bring the matter to the bar of public
opinion."
We cannot agree with the conclusion drawn by respondents from the foregoing facts. To begin with,
unlike the cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77 Phil., 192) relied
upon by the respondents this is not an action against the Senate, and it does not seek to compel the
latter, either directly or indirectly, to allow the petitioners to perform their duties as members of said
House. Although the Constitution provides that the Senate shall choose six (6) Senators to be members
of the Senate Electoral Tribunal, the latter is part neither of Congress nor of the Senate. (Angara vs.
Electoral Commission, 63 Phil., 139; Suanes vs. Chief Accountant, 81 Phil., 818; 46 Off. Gaz., 462.)
Secondly, although the Senate has, under the Constitution, the exclusive power to choose the Senators
who shall form part of the Senate Electoral Tribunal, the fundamental law has prescribed the manner in
which the authority shall be exercised. As the author of a very enlightening study on judicial selflimitation has aptly put it:
"The courts are called upon to say, on the one hand, by whom certain powers shall be exercised, and on
the other hand, to determine whether the powers thus possessed have been validly exercised. In
performing the latter function, they do not encroach upon the powers of a coordinate branch of the
government, since the determination of the validity of an act is not the same thing as the performance of
the act. In the one case we are seeking to ascertain upon whom devolves the duty of the particular
service. In the other case we are merely seeking to determine whether the Constitution has been violated
by anything done or attempted by either an executive official or the legislative." (Judicial SelfLimitation by Finkelstein, pp. 221, 224, 244, Harvard Law Review, Vol. 39; emphasis supplied.)
The case of Suanes vs. Chief Accountant (supra) cited by respondents refutes their own pretense. This
Court exercised its jurisdiction over said case and decided the same on the merits thereof, despite the
fact that it involved an inquiry into the powers of the Senate and its President over the Senate Electoral
Tribunal and the personnel thereof.
Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of the
Philippines. Yet, this does not detract from the power of the courts to pass upon the constitutionality of
acts of Congress 1 And, since judicial power includes the authority to inquire into the legality of statutes
enacted by the two Houses of Congress, and approved by the Executive, there can be no reason why the
validity of an act of one of said Houses, like that of any other branch of the Government, may not be
determined in the proper actions. Thus, in the exercise of the so- called "judicial supremacy", this Court
declared that a resolution of the defunct National Assembly could not bar the exercise of the powers of
the former Electoral Commission under the original Constitution. 2 (Angara vs. Electoral Commission,
supra), and annulled certain acts of the Executive 3 as incompatible with the fundamental law.
In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled without
inquiring into the validity of an act of Congress or of either House thereof, the courts have, not only
jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot be evaded without
violating the fundamental law and paving the way to its eventual destruction. 4
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs. Francisco (88 Phil., 654),
likewise, invoked by respondents, in point. In the Mabanag case, it was held that the courts could not

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review the finding of the Senate to the effect that the members thereof who had been suspended by said
House should not be considered in determining whether the votes cast therein, in favor of a resolution
proposing an amendment to the Constitution, sufficed to satisfy the requirements of the latter, such
question being a political one. The weight of this decision, as a precedent, has been weakened, however,
by our resolutions in Avelino vs. Cuenco (83 Phil., 17), in which this Court proceeded to determine the
number essential to constitute a quorum in the Senate. Besides, the case at bar does not hinge on the
number of votes needed for a particular act of said body. The issue before us is whether the Senate
after acknowledging that the Citizens Party is the party having the second largest number of votes in the
Senate, to which party the Constitution gives the right to nominate three (3) Senators for the Senate
Electoral Tribunal could validly choose therefor two (2) Nacionalista Senators, upon nomination by
the floor leader of the Nacionalista Party in the Senate, Senator Primicias, claiming to act on behalf of
the Committee on Rules for the Senate.
The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing its
representation in the Commission on Appointments. This was decided in the negative, upon the
authority of Alejandrino vs. Quezon (supra) and Vera vs. Avelino (supra), the main purpose of the
petition being "to force upon the Senate the reinstatement of Senator Magalona in the Commission on
Appointments," one-half (1/2) of the members of which is to be elected by each House on the basis of
proportional representation of the political parties therein. Hence, the issue depended mainly on the
determination of the political alignment of the members of the Senate at the time of said reorganization
and of the necessity or advisability of effecting said reorganization, which is a political question. We are
not called upon, in the case at bar, to pass upon an identical or similar question, it being conceded,
impliedly, but clearly, that the Citizens Party is the party with the second largest number of votes in the
Senate. The issue, therefore, is whether a right vested by the Constitution in the Citizens Party may
validly be exercised, either by the Nacionalista Party, or by the Committee on Rules for the Senate, over
the objection of said Citizens Party.
The only ground upon which respondents' objection to the jurisdiction of this Court and their theory to
the effect that the proper remedy for petitioners herein is, not the present action, but an appeal to public
opinion, could possibly be entertained is, therefore, whether the case at bar raises merely a political
question, not one justiciable in nature.
In this connection, respondents assert in their answer that "the remedy of petitioners is not in the judicial
forum, but, to use petitioner Taada's own words, 'to bring the matter to the bar of public opinion' (p. 81,
Discussion on the Creation of the Senate Electoral Tribunal, February 21, 1956)." This allegation may
give the impression that said petitioner had declared, on the floor of the Senate, that his only relief
against the acts complained of in the petition is to take up the issue before the people which is not a
fact. During the discussions in the Senate, in the course of the organization of the Senate Electoral
Tribunal, on February 21, 1956, Senator Taada was asked what remedies he would suggest if he
nominated two (2) Nacionalista Senators and the latter declined the nomination. Senator Taada replied:
"There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy open to all of
us that if we feel aggrieved and there is no recourse in the court of justice, we can appeal to public
opinion. Another remedy is an action in the Supreme Court. Of course, as Senator Rodriguez, our
President here, has said one day; 'If you take this matter to the Supreme Court, you will lose, because
until now the Supreme Court has always ruled against any action that would constitute interference in
the business of anybody pertaining to the Senate. The theory of separation of powers will be upheld by
the Supreme Court.' But that learned opinion of Senator Rodriguez, our President, notwithstanding, I
may take the case to the Supreme Court if my right herein is not respected. I may lose, Mr. President,
but who has not lost in the Supreme Court? I may lose because of the theory of the separation of
powers, but that does not mean, Mr. President, that what has been done here is pursuant to the provision
of the Constitution." (Congressional Record, Vol. III, p. 339; emphasis supplied.)
This statement did not refer to the nomination, by Senator Primicias, and the election, by the Senate, of
Senators Cuenco and Delgado as members of said Tribunal. Indeed, said nomination and election took
place the day after the aforementioned statement of Senator Taada was made. At any rate, the latter
announced that he might "take the case to the Supreme Court if my right here is not respected."

As already adverted to, the objection to our jurisdiction hinges on the question whether the issue before
us is political or not. In this connection, Willoughby lucidly states:
"Elsewhere in this treatise the well-known and well-established principle is considered that it is not
within the province of the courts to pass judgment upon the policy of legislative or executive action.
Where, therefore, discretionary powers are granted by the Constitution or by statute, the manner in
which those powers are exercised is not subject to judicial review. The courts, therefore, concern
themselves only with the question as to the existence and extent of these discretionary powers.
"As distinguished from the judicial, the legislative and executive departments are spoken of as the
political departments of government because in very many cases their action is necessarily dictated by
considerations of public or political policy. These considerations of public or political policy of course
will not permit the legislature to violate constitutional provisions, or the executive to exercise authority
not granted him by the Constitution or by statute, but, within these limits, they do permit the
departments, separately or together, to recognize that a certain set of facts exists or that a given status
exists, and these determinations, together with the consequences that flow therefrom, may not be
traversed in the courts." (Willoughby on the Constitution of the United States, Vol. 3, p. 1326;
emnphasis supplied.)
To the same effect is the language used in Corpus Juris Secundum, from which we quote:
"It is well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred upon the courts by express
constitutional or statutory provisions.
"It is not easy, however, to define the phrase 'political question', nor to determine what matters fall
within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial
questions, which under the constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or executive branch of
the government." (16 C.J.S., 413; see, also Geauga Lake Improvement Ass'n. vs. Lozier, 182 N. E. 491,
125 Ohio St. 565; Sevilla vs. Elizalde, 112 F. 2d 29, 72 App. D. C., 108; emphasis supplied.)
Thus, it has been repeatedly held that the question whether certain amendments to the Constitution are
invalid for non-compliance with the procedure therein prescribed, is not a political one and may be
settled by the Courts. 5
In the case of In re McConaughy (119 N.W. 408), the nature of political question was considered
carefully. The Court said:
"At the threshold of the case we are met with the assertion that the questions involved are political, and
not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board
would then be final, regardless of the actual vote upon the amendment. The question thus raised is a
fundamental one; but it has been so often decided contrary to the view contended for by the Attorney
General that it would seem to be finally settled.
xxx xxx xxx
". . . What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government, with
discretionary power to act. See State vs. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re Gunn, 50
Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green vs. Mills, 69 Fed. 852, 16, C. C. A. 516, 30 L. R. A.
90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220. Thus the
Legislature may in its discretion determine whether it will pass a law or submit a proposed
constitutional amendment to the people. The courts have no judicial control over such matters, not
merely because they involve political question, but because they are matters which the people have by
the Constitution delegated to the Legislature. The Governor may exercise the powers delegated to him,
free from judicial control, so long as he observes the laws and acts within the limits of the power
conferred. His discretionary acts cannot be controllable, not primarily because they are of a political
nature, but because the Constitution and laws have placed the particular matter under his control. But
every officer under a constitutional government must act according to law and subject him to the

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restraining and controlling power of the people, acting through the courts, as well as through the
executive or the Legislature. One department is just as representative as the other, and the judiciary is
the department which is charged with the special duty of determining the limitations which the law
places upon all official action. The recognition of this principle, unknown except in Great Britain and
America, is necessary, to 'the end that the government may be one of laws and not men' words which
Webster said were the greatest contained in any written constitutional document." (pp. 411, 417;
emphasis supplied.)
In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to "those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.
Such is not the nature of the question for determination in the present case. Here, we are called upon to
decide whether the election of Senators Cuenco and Delgado, by the Senate, as members of the Senate
Electoral Tribunal, upon nomination by Senator Primicias a member and spokesman of the party
having the largest number of votes in the Senate on behalf of its Committee on Rules, contravenes
the constitutional mandate that said members of the Senate Electoral Tribunal shall be chosen "upon
nomination . . . of the party having the second largest number of votes" in the Senate, and hence, is null
and void. This is not a political question. The Senate is not clothed with "full discretionary authority" in
the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to
constitutional limitations which are claimed to be mandatory in nature. It is clearly within the legitimate
province of the judicial department to pass upon the validity of the proceedings in connection therewith.
". . . whether an election of public officers has been in accordance with law is for the judiciary.
Moreover, where the legislative department has by statute prescribed election procedure in a given
situation, the judiciary may determine whether a particular election has been in conformity with such
statute, and, particularly, whether such statute has been applied in a way to deny or transgress on
constitutional or statutory rights . . ." (16 C. J. S., 439; emphasis supplied.)
It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and
determine the principal issue raised by the parties herein.
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the Electoral Tribunal,
valid and lawful?
Section 11 of Article VI of the Constitution, reads:
"The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the
Senate or of the House of Representatives, as the case may be, who shall be chosen by each House,
three upon nomination of the party having the largest number of votes and three of the party having the
second largest number of votes therein. The Senior Justice in each Electoral Tribunal shall be its
Chairman." (Emphasis supplied.)
It appears that on February 22, 1956, as well as at present, the Senate of the Philippines consists of
twenty-three (23) members of the Nacionalista Party and one (1) member of the Citizens Party, namely,
Senator Taada, who is, also, the president of said party. In the session of the Senate held on February
21, 1956, Senator Sabido moved that Senator Taada, "the President of the Citizens Party, be given the
privilege to nominate . . . three (3) members" of the Senate Electoral Tribunal (Congressional Record for
the Senate, Vol. III, pp. 328-329), referring to those who, according to the provision above-quoted,
should be nominated by "the party having the second largest number of votes" in the Senate. Senator
Taada objected formally to this motion upon the ground: (a) that the right to nominate said members of
the Senate Electoral Tribunal belongs, not to the Nacionalista Party of which Senator Sabido and the
other Senators are members but to the Citizens Party, as the one having the second largest number of
votes in the Senate, so that, being devoid of authority to nominate the aforementioned members of said
Tribunal, the Nacionalista Party cannot give it to the Citizens Party, which, already, has such authority,

pursuant to the Constitution; and (b) that Senator Sabido's motion would compel Senator Taada to
nominate three (3) Senators to said Tribunal, although as representative of the minority party in the
Senate he has "the right to nominate one, two or three to the Electoral Tribunal," in his discretion.
Senator Taada further stated that he reserved the right to determine how many he would nominate, after
hearing the reasons of Senator Sabido in support of his motion. After some discussion, in which
Senators Primicias, Cea, Lim, Sumulong, Zulueta, and Rodrigo took part, the Senate adjourned until the
next morning, February 22, 1956 (Do., do., pp. 329, 330, 332-333, 336, 338, 339, 343).
Then, said issues were debated upon more extensively, with Senator Sumulong, not only seconding the
opposition of Senator Taada, but, also, maintaining that "Senator Taada should nominate only one"
member of the Senate, namely, himself, he being the only Senator who belongs to the minority party in
said House (Do., do., pp. 360-364, 369). Thus, a new issue was raised whether or not one who does
not belong to said party may be nominated by its spokesman, Senator Taada on which Senators
Paredes, Pelaez, Rosales and Laurel, as well as the other Senators already mentioned, expressed their
views (Do., do., pp. 345, 349, 350, 354, 358, 364, 375). Although the deliberations of the Senate
consumed the whole morning and afternoon of February 22, 1956, a satisfactory solution of the question
before the Senate appeared to be remote. So, at 7:40 p. m., the meeting was suspended, on motion of
Senator Laurel, with a view to seeking a compromise formula (Do., do., pp. 377). When session was
resumed at 8:10 p. m., Senator Sabido withdrew his motion above referred to. Thereupon, Senator
Primicias, on behalf of the Nacionalista Party, nominated, and the Senate elected, Senators Laurel,
Lopez and Primicias, as members of the Senate Electoral Tribunal. Subsequently, Senator Taada stated:
"On behalf of the Citizens Party, the minority party in this Body, I nominate the only Citizens Party
member in this Body, and that is Senator Lorenzo M. Taada."
Without any objection, this nomination was approved by the House. Then, Senator Primicias stood up
and said:
"Now, Mr. President, in order to comply with the provision in the Constitution, the Committee on Rules
of the Senate and I am now making this proposal not on behalf of the Nacionalista Party but on
behalf of the Committee on Rules of the Senate I nominate two other members to complete the
membership of the Tribunal: Senators Delgado and Cuenco."
What took place thereafter appears in the following quotations from the Congressional Record for the
Senate.
"SENATOR TAADA. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Quezon.
SENATOR TAADA. I would like to record my opposition to the nominations of the last two named
gentlemen, Senators Delgado and Cuenco, not because I don't believe that they do not deserve to be
appointed to the tribunal but because of my sincere and firm conviction that these additional
nominations are not sanctioned by the Constitution. The Constitution only permits the Nacionalista
Party or the party having the largest number of votes to nominate three.
"SENATOR SUMULONG. Mr. President.
"EL PRESIDENTE INTERINO. Caballero de Rizal.
"SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I took the floor,
I also wish to record my objection to the last nominations, to the nomination of two additional NP's to
the Electoral Tribunal.
EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los que esten
conformes con la nominacion hecha por el Presidente del Comite de Reglamentos a favor de los
Senadores Delgado y Cuenco para ser miembros del Tribunal Electoral, digan, si. (Varios Senodores:
Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada." (Congressional Record for the Senate,
Vol. III, p. 377; italics supplied.)
Petitioners maintain that said nomination and election of Senators Cuenco and Delgado who belong
to the Nacionalista Party as members of the Senate Electoral Tribunal, are null and void and have
been made without power or color of authority, for, after the nomination by said party, and the election
by the Senate, of Senators Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators,

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who shall be members thereof, must necessarily be nominated by the party having the second largest
number of votes in the Senate, and such party is, admittedly, the Citizens Party, to which Senator Taada
belongs and which he represents.
Respondents allege, however, that the constitutional mandate to the effect that "each Electoral Tribunal
shall be composed of nine (9) members," six (6) of whom "shall be members of the Senate or of the
House of Representatives, as the case may be", is mandatory; that when after the nomination of three
(3) Senators by the majority party, and their election by the Senate, as members of the Senate Electoral
Tribunal Senator Taada nominated himself only, on behalf of the minority party, he thereby "waived
his right to nominate two more Senators;" that, when Senator Primicias nominated Senators Cuenco and
Delgado, and these respondents were chosen by the Senate, as members of the Senate Electoral
Tribunal, said Senator Primicias and the Senate merely complied with the aforementioned provision of
the fundamental law, relative to the number of members of the Senate Electoral Tribunal; and, that,
accordingly, Senators Cuenco and Delgado are de jure members of said body, and the appointment of
their co-respondents, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, is valid and
lawful.
At the outset, it will be recalled that the proceedings for the organization of the Senate Electoral
Tribunal began with a motion of Senator Sabido to the effect that "the distinguished gentleman from
Quezon, the President of the Citizens Party, be given the privilege to nominate the three Members" of
said Tribunal. Senator Primicias inquired why the movant had used the word "privilege". Senator Sabido
explained that the present composition of the Senate had created a condition or situation which was not
anticipated by the framers of our Constitution; that although Senator Taada formed part of the
Nacionalista Party before the end of 1955, he subsequently "parted ways with" said party; and that
Senator Taada "is the distinguished president of the Citizens Party," which "approximates the situation
desired by the framers of the Constitution" (Congressional Record for the Senate Vol. III, pp. 329-330).
Then Senator Lim intervened, stating:
"At present Senator Taada is considered as forming the only minority or the one that has the second
largest number of votes in the existing Senate, is not that right? And if this is so, he should be given this
as a matter of right, not as a matter of privilege. . . . I don't believe that we should be allowed to grant
this authority to Senator Taada only as a privilege but we must grant it as a matter of right." (Id., id., p.
332; emphasis supplied.)
Similarly, Senator Sumulong maintained that "Senator Taada, as Citizens Party Senator, has the right
and not a mere privilege to nominate," adding that:
". . . the question is whether we have a party here having the second largest number of votes, and it is
clear in my mind that there is such a party, and that is the Citizens Party to which the gentleman from
Quezon belongs. . . . We have to bear in mind, . . . that when Senator Taada was included in the
Nacionalista Party ticket in 1953 it was by virtue of a coalition or an alliance between the Citizens Party
and the Nacionalista Party at that time, and I maintain that when Senator Taada as head of the Citizens
Party entered into a coalition with the Nacionalista Party, he did not thereby become a Nacionalista
because that was a mere coalition, not a fusion. When the Citizens Party entered into a mere coalition,
that party did not lose its personality as a party separate and distinct from the Nacionalista. Party. And
we should also remember that the certificate of candidacy filed by Senator Taada in the 1953 election
was one to the effect that he belonged to the Citizens Party . . .." (Id., id., p. 360; emphasis supplied.)
The debate was closed by Senator Laurel, who remarked, referring to Senator Taada:
". . . there is no doubt that he does not belong to the majority in the first place, and that, therefore, he
belongs to the minority. And whether we like it or not, that, is the reality of the actual situation that
he is not a Nacionalista now, that he is the head and the representative of the Citizens Party. I think that
on equitable ground and from the point of view of public opinion, his situation . . . approximates or
approaches what is within the spirit of that Constitution. . . . and from the point of view of the spirit of
the Constitution it would be a good thing if we grant the opportunity to Senator Taada to help us in the
organization of this Electoral Tribunal . . .." (Id., id., p. 376; emphasis supplied.)
The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his motion to grant
Senator Taada the "privilege" to nominate, and said petitioner actually nominated himself "on behalf of
the Citizens Party, the minority party in this Body" not only without any objection whatsoever, but,

also, with the approval of the Senate leave no room for doubt that the Senate has regarded the
Citizens Party, represented by Senator Taada, as the party having the second largest number of votes in
said House.
Referring, now, to the contention of respondents herein, their main argument in support of the
mandatory character of the constitutional provision relative to the number of members of the Senate
Electoral Tribunal is that the word "shall", therein used, is imperative in nature and that this is borne out
by an opinion of the Secretary of Justice dated February 1, 1939, pertinent parts of which are quoted at
the footnote. 6
Regardless of the respect due its author, as a distinguished citizen and public official, said opinion has
little, if any, weight in the solution of the question before this Court, for the "practical construction of a
Constitution is of little, if any, unless it has been uniform . . .." 6 Again, "as a general rule, it is only in
cases of substantial doubt and ambiguity that the doctrine of contemporaneous or practical construction
has any application". As a consequence, "where the meaning of a constitutional provision is clear, a
contemporaneous or practical . . . executive interpretation thereof is entitled to no weight, and will not
be allowed to distort or in any way change its natural meaning." The reason is that "the application of
the doctrine of contemporaneous construction is more restricted as applied to the interpretation of
constitutional provisions than when applied to statutory provisions", and that, "except as to matters
committed by the Constitution itself to the discretion of some other department, contemporary or
practical construction is not necessarily binding upon the courts, even in a doubtful case." Hence, "if in
the judgment of the court, such construction is erroneous and its further application is not made
imperative by any paramount considerations of public policy, it may be rejected." (16 C. J. S., 71-72;
italics supplied.) 6
The aforementioned opinion of the Secretary of Justice is not backed up by a "uniform" application of
the view therein adopted, so essential to give thereto the weight accorded by the rules on
contemporaneous constructions. Moreover, said opinion tends to change the natural meaning of section
11 of Article VI of the Constitution, which is clear. What is more, there is not the slightest doubt in our
mind that the purpose and spirit of said provisions do not warrant said change and that the rejection of
the latter is demanded by paramount considerations of public policy.
The flaw in the position taken in said opinion and by respondents herein is that, while, it relies upon the
compulsory nature of the word "shall", as regards the number of members of the Electoral Tribunals, it
ignores the fact that the same term is used with respect to the method prescribed for their election, and
that both form part of a single sentence and must be considered, therefore, as integral portions of one
and the same thought. Indeed, respondents have not even tried to show and we cannot conceive
why "shall" must be deemed mandatory insofar as the number of members of each Electoral Tribunal,
and should be considered directory as regards the procedure for their selection. More important still, the
history of section 11 of Article VI of the Constitution and the records of the Convention, refute
respondents' pretense, and back up the theory of petitioners herein.
Commenting on the frame of mind of the delegates to the Constitutional Convention, when they faced
the task of providing for the adjudication of contests relating to the election, returns and qualifications
of members of the Legislative Department, Dr. Jose M. Aruego, a member of said Convention, says:
"The experience of the Filipino people under the provisions of the organic laws which left to the
lawmaking body the determination of the elections, returns, and qualifications of its members was not
altogether satisfactory. There were many complaints against the lack of political justice in this
determination; for in a great number of cases, party interests controlled and dictated the decisions. The
undue delay in the dispatch of election contests for legislative seats, the irregularities that characterized
the proceedings in some of them, and the very apparent injection of partisanship in the determination of
a great number of the cases were decried by a great number of the people as well as by the organs of
public opinion.
"The faith of the people in the uprightness of the lawmaking body in the performance of this function
assigned to it in the organic laws was by no means great. In fact so blatant was the lack of political
justice in the decisions that there was gradually built up a camp of thought in the Philippines inclined to

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leave to the courts the determination of election contests, following the practice in some countries, like
England and Canada.
"Such were the conditions of things at the time of the meeting of the convention." (The Framing of the
Philippine Constitution by Aruego, Vol. I, pp. 257-258; emphasis supplied.)
This view is shared by distinguished members of the Senate. Thus, in its session of February 22, 1956,
Senator Sumulong declared:
". . . when you leave it to either House to decide election protests involving its own members, that is
virtually placing the majority party in a position to dictate the decision in those election cases, because
each House will be composed of a majority and a minority, and when you make each House the judge of
every election protest involving any member of that House, you place the majority in a position to
dominate and dictate the decision in the case and result was, there were so many abuses, there were so
many injustices committed by the majority at the expense and to the prejudice of the minority
protestants. Statements have been made here that justice was done even under the old system, like that
case involving Senator Mabanag, when he almost became a victim of the majority when he had an
election case, and it was only through the intervention of President Quezon that he was saved from
becoming the victim of majority injustices.
"It is true that justice had sometimes prevailed under the old system, but the record will show that those
cases were few and they were the rare exceptions. The overwhelming majority of election protests
decided under the old system was that the majority being then in a position to dictate the decision in the
election protest, was tempted to commit as it did commit many abuses and injustices." (Congressional
Record for the Senate, Vol. III, p. 361; emphasis supplied.)
Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said:
". . . what was intended in the creation of the electoral tribunal was to create a sort of collegiate court
composed of nine members: three of them belonging to the party having the largest number of votes,
and three from the party having the second largest number of votes so that these members may represent
the party, and the members of said party who will sit before the electoral tribunal as protestees. For
when it comes to a party, Mr. President, there is ground to believe that decisions will be made along
party lines." (Congressional Record for the Senate, Vol. III, p. 351; emphasis supplied.)
Senator Laurel, who played an important role in the framing of our Constitution, expressed himself as
follows:
"Now, with reference to the protests or contests relating to the election, the returns and the qualifications
of the members of the legislative bodies, I heard it said here correctly that there was a time when that
was given to the corresponding chamber of the legislative department. So the election, returns and
qualifications of the members of the Congress or legislative body was entrusted to that body itself as the
exclusive body to determine the election, returns and qualifications of its members. There was some
doubt also expressed as to whether that should continue or not, and the greatest argument in favor of the
retention of that provision was the fact that was, among other things, the system obtaining in the United
States under the Federal Constitution of the United States, and there was no reason why that power or
that right vested in the legislative body should not be retained. But it was thought that would make the
determination of this contest, of this election protest, purely political as has been observed in the past."
(Congressional Record for the Senate, Vol. III, p. 376; emphasis supplied.)
It is interesting to note that not one of the members of the Senate contested the accuracy of the views
thus expressed.
Referring particularly to the philosophy underlying the constitutional provision quoted above, Dr.
Aruego states:
"The defense of the Electoral Commission was based primarily upon the hope and belief that the
abolition of party lines because of the equal representation in this body of the majority and the minority
parties of the National Assembly and the intervention of some members of the Supreme Court who,
under the proposed constitutional provision, would also be members of the same, would insure greater
political justice in the determination of election contests for seats in the National Assembly than there
would be if the power had been lodged in the lawmaking body itself. Delegate Francisco summarized
the arguments for the creation of the Electoral Commission in the following words:

"I understand that from the time that this question is placed in the hands of members not only of the
majority party but also of the minority party, there is already a condition, a factor which would make
protests decided in a non-partisan manner. We know from experience that many times in the many
protests tried in the House or in the Senate, it was impossible to prevent the factor of party from getting
in. From the moment that it is required that not only the majority but also the minority should intervene
in these questions, we have already enough guarantee that there would be no tyranny on the part of the
majority.
'But there is another more detail which is the one which satisfies me most, and that is the intervention of
three justices. So that with this intervention of three justices if there would be any question as to the
justice applied by the majority or the minority, if there would be any fundamental disagreement, or if
there would be nothing but questions purely of party in which the members of the majority as well as
those of the minority should wish to take lightly a protest because the protestant belongs to one of said
parties, we have in this case, as a check upon the two parties, the actuations of the three justices. In the
last analysis, what is really applied in the determination of electoral cases brought before the tribunals of
justice or before the House of Representatives or the Senate? Well, it is nothing more than the law and
the doctrine of the Supreme Court. If that is the case, there will be greater skill in the application of the
laws and in the application of doctrines to electoral matters having as we shall have three justices who
will act impartially in these electoral questions.
'I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it is
impossible to set aside party interests. Hence, the best guarantee, I repeat, for the administration of
justice to the parties, for the fact that the laws will not be applied improperly or incorrectly as well as for
the fact that the doctrines of the Supreme Court will be applied rightfully, the best guarantee which we
shall have, I repeat, is the intervention of the three justices. And with the formation of the Electoral
Commission, I say again, the protestants as well as the protestees could remain tranquil in the certainty
that they will receive the justice that they really deserve. If we eliminate from this precept the
intervention of the party of the minority and that of the three justices, then we shall be placing protests
exclusively in the hands of the party in power. And I understand, gentlemen, that in practice that has not
given good results. Many have criticized, many have complained against, the tyranny of the majority in
electoral cases . . .. I repeat that the best guarantee lies in the fact that these questions will be judged not
only by three members of the majority but also by three members of the minority, with the additional
guarantee of the impartial judgment of three justices of the Supreme Court." (The Framing of the
Philippine Constitution by Aruego, Vol. I, pp. 261-263; emphasis supplied.)
The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara vs. Electoral
Commission (63 Phil., 139), he asserted:
"The members of the Constitutional Convention who framed our fundamental law were in their majority
men mature in years and experience. To be sure, many of them were familiar with the history and
political development of other countries of the world. When, therefore, they deemed it wise to create an
Electoral Commission as a constitutional organ and invested it with the exclusive function of passing
upon and determining the election, returns and qualifications of the members of the National Assembly,
they must have done so not only in the light of their own experience but also having in view the
experience of other enlightened peoples of the world. The creation of the Electoral Commission was
designed to remedy certain evils of which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan,
as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is
that, upon the approval of the Constitution, the creation of the Electoral Commission is the expression of
the wisdom 'ultimate justice of the people.' (Abraham Lincoln, First Inaugural Address, March 4, 1861.)
"From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in
its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the people acting
through their delegates to the Convention, to provide for this body known as the Electoral Commission.
With this end in view, a composite body in which both the majority and minority parties are equally

192

represented to off-set partisan influence in its deliberations was created, and further endowed with
judicial temper by including in its membership three justices of the Supreme Court. (Pp. 174-175.) 7
As a matter of fact, during the deliberations of the convention, Delegates Conejero and Roxas said:
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?
"El Sr. ROXAS. Con mucho gusto.
"El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria
y tres a la Corte Suprema, no cree su Seoria que este equivale practicamente a dejar el asunto a los
miembros del Tribunal Supremo?
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta constituido en esa forma, tanto
los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema
consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para
dar el triunfo.
"El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto los de la
mayoria como los de la minoria prescindieran del partidismo?
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara vs. Electoral
Commission, supra, pp. 168-169; emphasis supplied.)
It is clear from the foregoing that the main objective of the framers of our Constitution in providing for
the establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral Tribunal for each
House of Congress, was to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the law making body. To achieve this purpose, two devices were resorted
to, namely: (a) the party having the largest number of votes, and the party having the second largest
number of votes, in the National Assembly or in each House of Congress, were given the same number
of representatives in the Electoral Commission or Tribunal, so that they may realize that partisan
considerations could not control the adjudication of said cases, and thus be induced to act with greater
impartiality; and (b) the Supreme Court was given in said body the same number of representatives as
each one of said political parties, so that the influence of the former may be decisive and endow said
Commission or Tribunal with judicial temper.
This is obvious from the very language of the constitutional provision under consideration. In fact,
Senator Sabido who had moved to grant to Senator Taada the "privilege" to make the nominations
on behalf of the party having the second largest number of votes in the Senate agrees with it. As
Senator Sumulong inquired:
". . . I suppose Your Honor will agree with me that the framers of the Constitution precisely thought of
creating this Electoral Tribunal so as to prevent the majority from ever having a preponderant majority
in the Tribunal." (Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.)
Senator Sabido replied:
"That is so, . . .." (Id., p. 330.)
Upon further interpelation, Senator Sabido said:
". . . the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a balance
between the two parties and make the members of the Supreme Court the controlling power so to speak
of the Electoral Tribunal or hold the balance of power. That is the ideal situation." (Congressional
Record for the Senate, Vol. III, p. 349; emphasis supplied.)
Senator Sumulong opined along the same line. His words were:
". . . The intention is that when the three from the majority and the three from the minority become
members of the Tribunal it is hoped that they will become aware of their judicial functions, not to
protect the protestants or the protestees. It is hoped that they will act as judges because to decide
election cases is a judicial function. But the framers of the Constitution besides being learned were men
of experience. They knew that even Senators like us are not angels, that we are human beings, that if we
should be chosen to go to the Electoral Tribunal no one can say that we will entirely be free from
partisan influence to favor our party, so that in case that hope that the three from the majority and the
three from the minority who will act as judges should result in disappointment, in case they do not act as

judges but they go there and vote along party lines, still there is the guarantee that they will offset each
other and the result will be that the deciding vote will reside in the hands of the three Justices who have
no partisan motives to favor either the protestees or the protestants. In other words, the whole idea is to
prevent the majority from controlling and dictating the decisions of the Tribunal and to make sure that
the decisive vote will be wielded not by the Congressmen or Senators who are members of the Tribunal
but will be wielded by the Justices who, by virtue of their judicial offices, will have no partisan motives
to serve, either protestants or protestees. That is my understanding of the intention of the framers of the
Constitution when they decided to create the Electoral Tribunal.
xxx xxx xxx
"My idea is that the intention of the framers of the constitution in creating the Electoral Tribunal is to
insure impartiality and independence in its decision, and that is sought to be done by never allowing the
majority party to control the Tribunal, and secondly by seeing to it that the decisive vote in the Tribunal
will be left in the hands of persons who have no partisan interest or motive to favor either protestant or
protestee." (Congressional Record for the Senate, Vol. III, pp. 362-363, 365-366; emphasis supplied.)
So important in the "balance of powers" between the two political parties in the Electoral Tribunals, that
several members of the Senate questioned the right of the party having the second largest number of
votes in the Senate and, hence, of Senator Taada, as representative of the Citizens Party to
nominate for the Senate Electoral Tribunal any Senator not belonging to said party. Senators Lim,
Sabido, Cea and Paredes maintained that the spirit of the Constitution would be violated if the nominees
to the Electoral Tribunals did not belong to the parties respectively making the nominations. 10
It is not necessary, for the purpose of this decision, to determine whether the parties having the largest,
and the second largest, number of votes in each House may nominate, to the Electoral Tribunals, those
members of Congress who do not belong to the party nominating them. It is patent, however, that the
most vital feature of the Electoral Tribunals is the equal representation of said parties therein, and the
resulting equilibrium to be maintained by the Justices of the Supreme Court as members of said
Tribunals. In the words of the members of the present Senate, said feature reflects the "intent"
"purpose", and "spirit of the Constitution", pursuant to which the Senate Electoral Tribunal should be
organized (Congressional Record for the Senate, pp. 330, 337, 348-9, 350, 351, 355, 358, 362-3, 364,
370, 376).
Now then, it is well settled that "the purpose of all rules or maxims as to the construction or
interpretation of statutes is to discover the true intention of the law" (82 C. J. S., 526) and that
"As a general rule of statutory construction, the spirit or intention of a statute prevails over the letter
thereof , and whatever is within the spirit of a statute is within the statute although it is not within the
letter thereof, while that which is within the letter, but not within the spirit of a statute, is not within the
statute; but, where the law is free and clear from ambiguity, the letter of it is not to be disregarded on the
pretext of pursuing its spirit." (82 C. J. S, 613.)
"There is no universal rule or absolute test by which directory provisions in a statute may in all
circumstances be distinguished from those which are mandatory. However, in the determination of this
question, as of every other question of statutory construction, the prime object is to ascertain the
legislative intent. The legislative intent must he obtained from all the surrounding circumstances, and
the determination does not depend on the form of the statute. Consideration must be given to the entire
statute, its nature, its object, and the consequences which would result from construing it one way or the
other, and the statute must be construed in connection with other related statutes. Words of permissive
character may be given a mandatory significance in order to effect the legislative intent, and, when the
terms of a statute are such that they cannot be made effective to the extent of giving each and all of them
some reasonable operation, without construing the statute as mandatory, such construction should be
given; . . . On the other hand, the language of a statute, however mandatory in form, may be deemed
directory whenever legislative purpose can best be carried out by such construction, and the legislative
intent does not require a mandatory construction; but the construction of mandatory words as directory
should not be lightly adopted and never where it would in fact make a new law instead of that passed by
the legislature. . . . Whether a statute is mandatory or directory depends on whether the thing directed to
be done is of the essence of the thing required, or is a mere matter of form, and what is a matter of
essence can often be determined only by judicial construction. Accordingly, when a particular provision

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of a statute relates to some immaterial matter, as to which compliance with the statute is a matter of
convenience rather than substance, or where the directions of a statute are given merely with a view to
the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless
followed by words of absolute prohibition; and a statute is regarded as directory where no substantial
rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be
accomplished in a manner other than that prescribed, with substantially the same result. On the other
hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is
mandatory, and when a fair interpretation of a statute, which directs acts or proceedings to be done in a
certain way, shows that the legislature intended a compliance with such provision to be essential to the
validity of the act or proceeding, or when same antecedent and prerequisite conditions must exist prior
to the exercise of power, or must be performed before certain other powers can be exercised, the statute
must be regarded as mandatory. (Id., pp. 869-874.) (See, also, Words and Phrases, Vol. 26, pp. 463- 467;
emphasis supplied.)
What has been said above, relative to the conditions antecedent to, and concomitant with, the adoption
of section 11 of Article VI of the Constitution, reveals clearly that its framers intended to prevent the
majority party from controlling the Electoral Tribunals, and that the structure thereof is founded upon
the equilibrium between the majority and the minority parties therein, with the Justices of the Supreme
Court, who are members of said Tribunals, holding the resulting balance of power. The procedure
prescribed in said provision for the selection of members of the Electoral Tribunals is vital to the role
they are called upon to play. It constitutes the essence of said Tribunals. Hence, compliance with said
procedure is mandatory, and acts performed in violation thereof are null and void. 11
It is true that the application of the foregoing criterion would limit the membership of the Senate
Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9), members; but, it is conceded that
the present composition of the Senate was not foreseen by the framers of our Constitution
(Congressional Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375). Furthermore, the spirit
of the law prevails over its letter, and the solution herein adopted maintains the spirit of the Constitution,
for partisan considerations can not be decisive in a tribunal consisting of three (3) Justices of the
Supreme Court, three (3) members nominated by the majority party and either one (1) or two (2)
members nominated by the party having the second largest number of votes in the House concerned.
Upon the other hand, what would be the result of respondents' contention if upheld? Owing to the fact
that the Citizens Party 12 has only one member in the Upper House, Senator Taada felt he should
nominate, for the Senate Electoral Tribunal, only said member of the Citizens Party. The same is, thus,
numerically handicapped, vis-a-vis the majority party, in said Tribunal. Obviously, Senator Taada did
not nominate other two Senators, because, otherwise, he would worsen the already disadvantageous
position, therein, of the Citizens Party. Indeed, by the aforementioned nomination and election of
Senators Cuenco and Delgado, if the same were sanctioned, the Nacionalista Party would have five (5)
members in the Senate Electoral Tribunal, as against one (1) member of the Citizens Party and three
members of the Supreme Court. With the absolute majority thereby attained by the majority party in
said Tribunal, the philosophy underlying the same would be entirely upset. The equilibrium between the
political parties therein would be destroyed. What is worst, the decisive moderating role of the Justices
of the Supreme Court would be wiped out, and, in lieu thereof, the door would be thrown wide open for
the predominance of political considerations in the determination of election protests pending before
said Tribunal, which is precisely what the fathers of our Constitution earnestly strove to forestall. 13
This does not imply that the honesty, integrity or impartiality of Senators Cuenco and Delgado are being
questioned. As a matter of fact, when Senator Taada objected to their nomination, he explicitly made of
record that his opposition was based, not upon their character, but upon the principle involved. When
the election of members of Congress to the Electoral Tribunal is made dependent upon the nomination
of the political parties above referred to, the Constitution thereby indicates its reliance upon the method
of selection thus established, regardless of the individual qualities of those chosen therefor. Considering
the wealth of experience of the delegates to the Convention, all lawyers of great note, as veteran
politicians and as leaders in other fields of endeavor, they could not, and did not, ignore the fact that the

Constitution must limit itself to giving general patterns or norms of action. In connection, particularly,
with the composition of the Electoral Tribunals, they believed that, even the most well meaning
individuals often find it difficult to shake off the bias and prejudice created by political antagonisms and
to resist the demands of political exigencies, the pressure of which is bound to increase in proportion to
the degree of predominance of the party from which it comes. As above stated, this was confirmed by
distinguished members of the present Senate. (See pp. 25-28, 33, 34, supra.)
In connection with the argument of the former Secretary of Justice to the effect that when "there is no
minority party represented in the Assembly, the necessity for such a check by the minority disappears",
the following observations of the petitioners herein are worthy of notice:
"Under the interpretation espoused by the respondents, the very frauds or terrorism committed by a
party would establish the legal basis for the final destruction of minority parties in the Congress at least.
Let us suppose, for example, that in the Senate, the 15 or 16 senators with unexpired terms belong to the
party A. In the senatorial election to fill the remaining 8 seats, all the 8 candidates of party A are
proclaimed elected through alleged fraud and/or terrorism. (The ouster of not less than 3 senators-elect
in the elections held since liberation attests to the reality of election frauds and terrorism in our country.)
There being no senator or only one senator belonging to the minority, who would sit in judgment on the
election candidates of the minority parties? According to the contention of the respondents, it would be
a Senate Electoral Tribunal made up of three Supreme Court Justices and 5 or 6 members of the same
party A accused of fraud and terrorism. Most respectfully, we pray this Honorable Court to reject an
interpretation that would make of a democratic constitution the very instrument by which a corrupt and
ruthless party could intrench itself in power in the legislature and thus destroy democracy in the
Philippines.
xxx xxx xxx
". . . When there are no electoral protests filed by the minority party, or when the only electoral protests
filed are by candidates of the majority against members-elect of the same majority party, there might be
no objection to the statement. But if electoral protests are filed by candidate of the minority party, it is at
this point that a need for a check on the majority party is greatest, and contrary to the observation made
in the above-quoted opinion, such a check is a function that cannot be successfully exercised by the 3
Justices of the Supreme Court, for the obvious and simple reason that they could easily be outvoted by
the 6 members of the majority party in the Tribunal.
xxx xxx xxx
"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it did not appear that there
were minority party candidates who were adversely affected by the ruling of the Secretary of Justice and
who could have brought a test case to court." (Emphasis supplied.)
The defenses of waiver and estoppel set up against petitioner Taada are untenable. Although "an
individual may waive constitutional provisions intended for his benefit", particularly those meant for the
protection of his property, and, sometimes, even those tending "to secure his personal liberty", the power
to waive does not exist when "public policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's
Constitutional Limitations, pp. 368-371). The procedure outlined in the Constitution for the organization
of the Electoral Tribunals was adopted in response to the demands of the common weal, and it has been
held that "where a statute is founded on public policy, those to whom it applies should not be permitted
to waive its provisions" (82 C. J. S., 874). Besides, there can be no waiver without an intent to such
effect, which Senator Taada did not have. Again, the alleged waiver or exhaustion of his rights does not
justify the exercise thereof by a person or party other than that to which it is vested exclusively by the
Constitution.
The rule on estoppel is that "whenever a party has, by his declaration, act or omissions, intentionally and
deliberately led another to believe a particular thing true, and to act upon such belief, he cannot, in a
litigation arising out of such declaration, act or omission, be permitted to falsify it" (Rule 68, sec. 68 [a],
Rules of Court). In the case at bar, petitioner Senator Taada did not lead the Senate to believe that
Senator Primicias could nominate Senators Cuenco and Delgado. On the contrary, said petitioner
repeatedly asserted that his was the exclusive right to make the nomination. He, likewise, specifically
contested said nomination of Senators Cuenco and Delgado. Again, the rule on estoppel applies to
questions of fact, not of law, about the truth of which the other party is ignorant (see Moran's Comments

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on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the nature of the situation that confronted
Senator Taada and the other members of the Senate. Lastly, the case of Zandueta vs. De la Costa (66
Phil., 615), cited by respondents, is not in point. Judge Zandueta assumed office by virtue of an
appointment, the legality of which he later on assailed. In the case at bar, the nomination and election of
Senator Taada as member of the Senate Electoral Tribunal was separate, distinct and independent from
the nomination and election of Senators Cuenco and Delgado.
In view of the foregoing, we hold that the Senate may not elect, as members of the Senate Electoral
Tribunal, those Senators who have not been nominated by the political parties specified in the
Constitution; that the party having the largest number of votes in the Senate may nominate not more
than three (3) members thereof to said Electoral Tribunal; that the party having the second largest
number of votes in the Senate has the exclusive right to nominate the other three (3) Senators who shall
sit as members in the Electoral Tribunal; that neither these three (3) Senators, nor any of them, may be
nominated by a person or party other than the one having the second largest number of votes in the
Senate or its representative therein; that the Committee on Rules for the Senate has no standing to
validly make such nomination and that the nomination of Senators Cuenco and Delgado by Senator
Primicias, and the election of said respondents by the Senate, as members of said Tribunal, are null and
void ab initio.

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges
that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President.
The warring personalities are important enough but more transcendental are the constitutional issues
embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the
relationship between the ruler and the ruled in a democracy, Philippine style.

As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, we are not
prepared to hold, however, that their appointments were null and void. Although recommended by
Senators Cuenco and Delgado, who are not lawful members of the Senate Electoral Tribunal, they were
appointed by its Chairman, presumably, with the consent of the majority of the de jure members of said
body 14 or, pursuant to the Rules thereof. At any rate, as held in Suanes vs. Chief Accountant (supra),
the selection of its personnel is an internal matter falling within the jurisdiction and control of said body,
and there is every reason to believe that it will, hereafter, take appropriate measures, in relation to the
four (4) respondents abovementioned, conformably with the spirit of the Constitution and of the
decision in the case at bar.
Wherefore, judgment is hereby rendered declaring that respondents Senators Mariano Jesus Cuenco and
Francisco A. Delgado have not been duly elected as Members of the Senate Electoral Tribunal, that they
are not entitled to act as such and that they should be, as they are hereby, enjoined from exercising the
powers and duties of Members of said Electoral Tribunal and from acting in such capacity in connection
with Senate Electoral Case No. 4 thereof. With the qualification stated above, the petition is dismissed,
as regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes. Without
special pronouncement as to costs. It is so ordered.
||| (Taada v. Cuenco, G.R. No. L-10520, [February 28, 1957], 103 PHIL 1051-1101)
EN BANC

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from
Governor Singson 70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech
was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by
Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for
joint investigation. 2

[G.R. Nos. 146710-15. March 2, 2001.]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and
ERNESTO B. FRANCISCO, JR., respondents.
[G.R. No. 146738. March 2, 2001.]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPACAL-ARROYO, respondent.
DECISION
PUNO, J p:

First, we take a view of the panorama of events that precipitated the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice- President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were
to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly
but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the
petitioner, his family and friends of receiving millions of pesos from jueteng lords. 1

The House of Representatives did no less. The House Committee on Public Order and Security, then
headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the
other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the
move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern. 3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner. 4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation. 5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services 6 and later asked for petitioner's resignation.
7 However, petitioner strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip. 8 On November 2, Secretary Mar Roxas
II also resigned from the Department of Trade and Industry. 9 On November 3, Senate President
Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from
the ruling coalition, Lapian ng Masang Pilipino. 10
The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment 11 signed by 115 representatives, or more than
1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions
in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President.

195

Speaker Villar was unseated by Representative Fuentebella. 12 On November 20, the Senate formally
opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding. 13
The political temperature rose despite the cold December. On December 7, the impeachment trial
started. 14 The battle royale was fought by some of the marquee names in the legal profession. Standing
as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker
Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan
Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of
private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon
Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor
General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano,
former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund
Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing
rating. Its high and low points were the constant conversational piece of the chattering classes. The
dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of
Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed
the signature "Jose Velarde" on documents involving a P500 million investment agreement with their
bank on February 4, 2000. 15
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that
the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of
insider trading. 16 Then came the fateful day of January 16, when by a vote of 11-10 17 the senatorjudges ruled against the opening of the second envelope which allegedly contained evidence showing
that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and
private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President. 18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the
streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full
of sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal. 19 Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion. 20
January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show their
concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of
persuasion, attracted more and more people. 21
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed
Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election
for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m.,
Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the
armed services went to the EDSA Shrine. 22 In the presence of former Presidents Aquino and Ramos
and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of your
Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are

withdrawing our support to this government." 23 A little later, PNP Chief, Director General Panfilo
Lacson and the major service commanders gave a similar stunning announcement. 24 Some Cabinet
secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.
25 Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide
of rage, petitioner announced he was ordering his lawyers to agree to the opening of the highly
controversial second envelope. 26 There was no turning back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacaang's Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political
Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by
now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary
of Justice Hernando Perez. 27 Outside the palace, there was a brief encounter at Mendiola between pro
and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine. SIacTE
At about 12:00 noon Chief Justice Davide administered the oath to respondent Arroyo as President of
the Philippines. 28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace. 29 He
issued the following press statement: 30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to
be a factor that will prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people
with gratitude for the opportunities given to me for service to our people. I will not shirk from any
future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY !
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the following letter: 31
"Sir:

196

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting President.

voted against the closure of the impeachment court on the grounds that the Senate had failed to decide
on the impeachment case and that the resolution left open the question of whether Estrada was still
qualified to run for another elective post. 48

(Sgd.) JOSEPH EJERCITO ESTRADA"

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up
from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by the
ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted
President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and
55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all
social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among
the E's or very poor class. 50

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 32 Another copy
was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.
33
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers
and duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05 SC, to wit:
"A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath
of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the
Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20,
2001, which request was treated as an administrative matter, the court Resolved unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief Justice on January
20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party."
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys. 34
Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January
23, in a reception or vin d' honneur at Malacaang, led by the Dean of the Diplomatic Corps, Papal
Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of
respondent Arroyo. 35 US President George W. Bush gave the respondent a telephone call from the
White House conveying US recognition of her government. 36
On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives. 37 The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President
of the Philippines." 38 It also approved Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President
of the Republic of the Philippines, extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's goals under the Constitution." 39
On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later,
she also signed into law the Political Advertising Ban and Fair Election Practices Act. 41
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. 42
The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator
Guingona, Jr. 43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmea voted "yes"
with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent
Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were
absent. 44 The House of Representatives also approved Senator Guingona's nomination in Resolution
No. 178. 45 Senator Guingona, Jr. took his oath as Vice President two (2) days later. 46
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio and has been terminated. 47 Senator Miriam Defensor-Santiago stated "for the record" that she

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and
corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on
November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct,
violation of the Code of Conduct for Government Employees, etc.; (3) OMB Case No. 0-00-1755 filed
by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo
Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28,
2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6)
OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and
corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the
charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with
the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de
Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to
file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in
answer to the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-001629, 1754, 1755,1756,1757 and 1758 or in any other criminal complaint that may be filed in his office,
until after the term of petitioner as President is over and only if legally warranted." Thru another
counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment
"confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath
as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of
the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the
respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On
February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the
filing of the respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing,
Chief Justice Davide, Jr. 51 and Associate Justice Artemio Panganiban 52 recused themselves on motion

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of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel
Saguisag that they have "compromised themselves by indicating that they have thrown their weight on
one side" but nonetheless inhibited themselves. Thereafter, the parties were given the short period of
five (5) days to file their memoranda and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the
office of the President vacant and that neither did the Chief Justice issue a press statement justifying the
alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under pain of being
cited for contempt to refrain from making any comment or discussing in public the merits of the cases at
bar while they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from
resolving or deciding the criminal cases pending investigation in his office against petitioner Joseph E.
Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman
may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing
held on February 15, 2001, which action will make the cases at bar moot and academic." 53
The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for
decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President
on leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
at bar involve a political question

Private respondents 54 raise the threshold issue that the cases at bar pose a political question, and hence,
are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases
at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended
the presidency through people power; that she has already taken her oath as the 14th President of the
Republic; that she has exercised the powers of the presidency and that she has been recognized by
foreign governments. They submit that these realities on ground constitute the political thicket which the
Court cannot enter.
We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law. 55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case of Baker v. Carr, 56 viz:
". . . Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility
of a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already
made; or the potentiality of embarrassment from multifarious pronouncements by various departments
on question. Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine of which
we treat is one of political questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question. 57 Our leading case is Taada v.
Cuenco, 58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the
reach of the political question doctrine when it expanded the power of judicial review of this court not
only to settle actual controversies involving rights which are legally demandable and enforceable but
also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of government. 59 Heretofore, the judiciary
has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.
60 With the new provision, however, courts are given a greater prerogative to determine what it can do
to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing
nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming
the so called political thicket. Prominent of these provisions is section 18 of Article VII which
empowers this Court in limpid language to ". . . review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ (of habeas corpus) or the extension thereof . . .."
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al. 61 and related cases 62 to support their thesis that since the cases at
bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited
cases, we held that the government of former President Aquino was the result of a successful revolution
by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution 63 declared that

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the Aquino government was installed through a direct exercise of the power of the Filipino people "in
defiance of the provisions of the 1973 Constitution, as amended." It is familiar learning that the
legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny
for that government automatically orbits out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution. 64 In her oath, she categorically swore to preserve and
defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I
involves the exercise of the people power of revolution which overthrew the whole government. EDSA
II is an exercise of people power of freedom of speech and freedom of assembly to petition the
government for redress of grievances which only affected the office of the President. EDSA I is extra
constitutional and the legitimacy of the new government that resulted from it cannot be the subject of
judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it
caused and the succession of the Vice President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involves legal questions. A brief discourse on freedom of speech
and of the freedom of assembly to petition the government for redress of grievance which are the cutting
edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one
of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion
call for the recognition of freedom of the press of the Filipinos and included it as among "the reforms
sine quibus non." 65 The Malolos Constitution, which is the work of the revolutionary Congress in
1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express
his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the
right of association for purposes of human life and which are not contrary to public means; and (3) of
the right to send petitions to the authorities, individually or collectively." These fundamental rights were
preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the
Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically
provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of
the people to peaceably assemble and petition the Government for redress of grievances." The guaranty
was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act
of Congress of August 29, 1966. 66

brief filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the
basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather
than force; and this means talk for all and by all." 72 In the relatively recent case of Subayco v.
Sandiganbayan, 73 this Court similarly stressed that " . . . it should be clear even to those with
intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all
should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are
ciphers."
Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II, 74 and section 8 75 of Article VII, and the allocation of governmental powers
under section 11 76 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison, 77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the law is . . ."
Thus, respondent's invocation of the doctrine of political question is but a foray in the dark.
II
Whether or not the petitioner
resigned as President
We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the records
of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers
from a permanent disability. Hence, he submits that the office of the President was not vacant when
respondent Arroyo took her oath as President.
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:
"SECTION 8. In case of death, permanent disability, removal from office or resignation of the President,
the Vice President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice President, the President of
the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice President shall have been elected and qualified.
xxx xxx xxx."

Thence on, the guaranty was set in stone in our 1935 Constitution, 67 and the 1973 68 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:
"SECTION 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of assembly to democracy is now selfevident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of
assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members of
society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of
maintaining the precarious balance between healthy cleavage and necessary consensus." 69 In this
sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the
progress of a society can take place without destroying the society." 70 In Hague v. Committee for
Industrial Organization, 71 this function of free speech and assembly was echoed in the amicus curiae

The issue then is whether the petitioner resigned as President or should be considered resigned as of
January 20, 2001 when respondent took her oath as the 14th President of the Republic. Resignation is
not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must
be an intent to resign and the intent must be coupled by acts of relinquishment. 78 The validity of a
resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can
be express. It can be implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be determined from his acts and
omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the
succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee

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investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In express
speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives.
Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in
tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and
Industry.
As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The
call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to
open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16
was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their
number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush
fire.
As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer. 79 The Angara Diary reveals that
in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at
EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At
1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and
exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has
defected.)" 80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election
and stressed he would not be a candidate. The proposal for a snap election for president in May where
he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at
that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation
of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and
their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the
option of "dignified exit or resignation." 81 Petitioner did not disagree but listened intently. 82 The sky
was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency
of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner
would be allowed to go abroad with enough funds to support him and his family. 83 Significantly, the
petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country. 84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace." 85 This is proof that petitioner had
reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day
grace period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara
and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and
orderly transfer of power." 86 There was no defiance to the request. Secretary Angara readily agreed.
Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of
power. The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of
January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition
period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and
his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner. 87
Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign
ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three
points and the following entry in the Angara Diary shows the reaction of the petitioner, viz:

"xxx xxx xxx

I explain what happened .during the first round of negotiations. The President immediately stresses that
he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his
name.
If the envelope is opened, on Monday, he says, he will leave by Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red
tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too painful. I'm tired of
the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go." 88
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he
said ". . . Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following
happened:
"Opposition's deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this
round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency
of the Republic of the Philippines.
2. Beginning today, 20 January 2001, the transition process for the assumption of the new administration
shall commence, and persons designated by the Vice President to various positions and offices of the
government shall start their orientation activities in coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice
President as national military and police authority effective immediately.
4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the security of the
President and his family as approved by the national military and police authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings
account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant
to the request to the Senate President.'
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows:

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xxx xxx xxx

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President
Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.
2. In return, President Estrada and his families are guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise, President Estrada and his families are guaranteed
freedom from persecution or retaliation from government and the private sector throughout their natural
lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines ('AFP') through the Chief
of Staff, as approved by the national military and police authorities Vice President (Macapagal).
3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize
the opening of the second envelope in the impeachment trial as proof that the subject savings account
does not belong to President Estrada.
4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the "Transition
Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet
officials as part of the orientation program.
During the Transition Period, the AFP and the Philippine National Police ('PNP') shall function under
Vice President (Macapagal) as national military and police authorities.

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20 January
2001, wherein persons designated by the Vice President to various government positions shall start
orientation activities with incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security
of the President and his families throughout their natural lifetimes as approved by the national military
and police authority Vice President. IaAScD
4. The AFP and the Philippine National Police ('PNP') shall function under the Vice President as
national military and police authorities.
5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the
contents of which shall be offered as proof that the subject savings account does not belong to the
President.
The Vice President shall issue a public statement in the form and tenor provided for in Annex 'B'
heretofore attached to this agreement.
xxx xxx xxx

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and observance
thereof.

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side
and awaiting the signature of the United Opposition.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided
for in 'Annex A' heretofore attached to this agreement."' 89

And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria
Macapagal-Arroyo is President and will be sworn in at 12 noon.

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted
that during this second round of negotiation, the resignation of the petitioner was again treated as a
given fact. The only unsettled points at that time were the measures to be undertaken by the parties
during and after the transition period.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldn't you wait? What about the
agreement)?' I asked.

According to Secretary Angara, the draft agreement which was premised on the resignation of the
petitioner was further refined. It was then signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by
the party of the respondent Arroyo was aborted by her oath-taking. The Angara Diary narrates the fateful
events, viz: 90

I ask him: 'Diyung transition period, moot and academic na?'

"xxx xxx xxx

But I immediately instruct Macel to delete the first provision on resignation since this matter is already
moot and academic. Within moments, Macel erases the first provision and faxes the documents, which
have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes.

11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect
a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear
voices in the background

Reyes answered: 'Wala na, sir (It's over, sir).'

And General Reyes answers: 'Oo nga, i-delete na natin, sir (Yes, we're deleting that part).'
Contrary to subsequent reports, I do not react and say that there was a double cross.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other
side, as it is important that the provisions on security, at least, should be respected.

Agreement
The agreement starts: 1. The President-shall resign today, 20 January 2001, which resignation shall be
effective on 24 January 2001, on which day the Vice President will assume the presidency of the
Republic of the Philippines.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer
the oath to Gloria at 12 noon.
The President is too stunned for words.

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Final meal
12 noon Gloria takes her oath as President of the Republic of the Philippines.

It is, however, urged that the petitioner did not resign but only took a temporary leave of absence due to
his inability to govern. In support of this thesis, the letter dated January 20, 2001 of the petitioner sent to
Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz:

12:20 p.m. The PSG distributes firearms to some people inside the compound.
"Sir.
The President is having his final meal at the Presidential Residence with the few friends and Cabinet
members who have gathered.
By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the
PSG is there to protect the Palace, since the police and military have already withdrawn their support for
the President.
1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal
possessions as they can.
During lunch, Ronnie Puno mentions that the President needs to release a final statement before leaving
Malacaang.
The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her
oath as President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil
society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this county, for the
sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people
with gratitude for the opportunities given to me for service to our people. I will not shirk from any
future challenges that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and our beloved people. MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized
he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving the Palace due to any kind of inability and
that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his
gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President; (4) he assured that he will not shirk from any
future challenge that may come ahead in the same service of our country. Petitioner's reference is to a
future challenge after occupying the office of the president which he has given up, and (5) he called on
this supporters to join him in the promotion of a constructive national spirit of reconciliation and
solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not
give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His
presidency is now in the past tense.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice President shall be the Acting President.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery. 91 The pleadings filed by the petitioner in the
cases at bar did not discuss, nay even intimate, the circumstances that led to its preparation. Neither did
the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes
the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during
the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final
press release. It was all too easy for him to tell the Filipino people in his press release that he was
temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for
the time being. Under any circumstance, however, the mysterious letter cannot negate the resignation of
the petitioner. If it was prepared before the press release of the petitioner clearly showing his resignation
from the presidency, then the resignation must prevail as a later act. If, however, it was prepared after
the press release, still, it commands scant legal significance. Petitioner's resignation from the presidency
cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the
result of his repudiation by the people. There is another reason why this Court cannot give any legal
significance to petitioner's letter and this shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-Graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"SECTION 12. No public officer shall be allowed to resign retire pending an investigation, criminal or
administrative, pending a prosecution against him, for any offense under this Act under the provisions of
the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in
his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the
period of amendments the inclusion of a provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed
to voluntarily resign or retire." 92 During the period of amendments, the following provision was
inserted as section 15:
"SECTION 15. Termination of office No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any offense under
the Act or under the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official from office shall not be a bar to his prosecution under
this Act for an offense committed during his incumbency." 93

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The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend even after his
tenure. ICHcaD
Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular provision
mainly focused on the immunity of the President which was one of the reasons for the veto of the
original bill. There was hardly any debate on the prohibition against the resignation or retirement of a
public official with pending criminal and administrative cases against him. Be that as it may, the intent
of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a
public official as a protective shield to stop the investigation of a pending criminal or administrative
case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery
under the Revised Penal Code. To be sure, no person can be compelled to render service for that would
be a violation of his constitutional right. 94 A public official has the right not to serve if he really wants
to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing
administrative or criminal investigation or prosecution, such resignation or retirement will not cause the
dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or
retirement to avoid prosecution.
There is another reason why petitioner's contention should be rejected. In the cases at bar, the records
show that when petitioner resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary
investigation of the petitioner for the reason that as the sitting President then, petitioner was immune
from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked
jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for
it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process already
broke down when a majority of the senator-judges voted against the opening of the second envelope, the
public and private prosecutors walked out, the public prosecutors filed their Manifestation of
Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no
impeachment case pending against petitioner when he resigned.
III
Whether or not the petitioner
is only temporarily unable to
act as President.
We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability
claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President
Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of
the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of Article VII." 95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo
is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SECTION 11. Whenever the President transmits to the President of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and duties of
his office, and until he transmits to them a written declaration to the contrary, such powers and duties
shall be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Vice-President shall immediately assume the powers
and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House
of Representatives his written declaration that no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five
days to the President of the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his office, the Congress
shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within fortyeight hours, in accordance with its rules and without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within
twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and duties of his office, the VicePresident shall act as President; otherwise, the President shall continue exercising the powers and duties
of his office."
That is the law. Now, the operative facts:

(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and
Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at
about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House
Resolution No. 175; 96
On the same date, the House of the Representatives passed House Resolution No. 176 97 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE
ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE
ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on the ability of former President
Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine
National Police and majority of his cabinet had withdrawn support from him;

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WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;

WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national
healing and reconciliation with justice for the purpose of national unity and development;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence
and courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided,
thus by reason of the constitutional duty of the House of Representatives as an institution and that of the
individual members, thereof of fealty to the supreme will of the people, the House of Representatives
must ensure to the people a stable, continuing government and therefore must remove all obstacles to
the attainment thereof;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having
served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator
of the Philippines qualities which merit his nomination. to the position of Vice President of the
Republic: Now, therefore, be it.

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the
nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative of the various segments of the whole
nation;

Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives
confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the
Philippines.
Adopted,

WHEREAS, without surrendering its independence, it is vital for the attainment of all the foregoing, for
the House of Representatives to extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the
national interest demanding no less: Now, therefore, be it.
Resolved by the House of Representatives, To express its support to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a partner in the attainment of the
Nation's goals under the Constitution.

(Sgd.) FELICIANO BELMONTE JR.

Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"

Adopted,
(Sgd.) FELICIANO BELMONTE JR.

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate
signed the following:

Speaker

"RESOLUTION

This Resolution was adopted by the House of Representatives on January 24, 2001.

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change
and challenge;

(Sgd.) ROBERTO P. NAZARENO

Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No. 178 98 which
states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION
OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of
purpose and resolute cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity
despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and overcome the
nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No. 82 100 which states:

204

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION

OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,

WHEREAS, there is a vacancy in the Office of the Vice-President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence, and
courage; who has served the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having
served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice. Senator
of the land which qualities merit his nomination to the position of Vice President of the Republic:
Now, therefore, be it.
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T Guingona,
Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of a vacancy in
the Senate and calling on the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the senatorial candidate garnering the
thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T.
Guingona, Jr."
(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability
of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner's claim of inability.

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83 101 which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus
officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of Monday, January 15, Tuesday, January
16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the 'second envelope' be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the
Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the
Senate President.

The question is whether this Court has jurisdiction to review the claim of temporary inability of
petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent
Arroyo as President of the Philippines. Following Taada v. Cuenco, 102 we hold that this Court cannot
"exercise its judicial power for this is an issue "in regard to which full discretionary authority has been
delegated to the Legislative . . . branch of the government." Or to use the language in Baker vs. Carr,
103 there is a "textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the
Court cannot pass upon petitioner's claim of inability to discharge the powers and duties of the
presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It
is a political issue which cannot be decided by this Court without transgressing the principle of
separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is merely unable to govern temporarily. That claim has
been laid to rest by Congress and the decision that respondent Arroyo is the de jure President made by a
co-equal branch of government cannot be reviewed by this Court.

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IV
Whether or not the petitioner enjoys immunity
from suit. Assuming he enjoys immunity, the
extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history on executive immunity will be
most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the
1910 case of Forbes, etc. vs. Chuoco Tiaco and Crossfield, 104 the respondent Tiaco, a Chinese citizen,
sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands, J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:
"The principle of non-liability, as herein enunciated, does not mean that the judiciary has no authority to
touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either, that a person injured by the
executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On
the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members
of the Legislature, may not be personally mulcted in civil damages for the consequences of an act
executed in the performance of his official duties. The judiciary has full power to, and will, when the
matter is properly presented to it and the occasion justly warrants it, declare an act of the GovernorGeneral illegal and void and place as nearly as possible in status quo any person who has been deprived
his liberty or his property by such act. This remedy is assured to every person, however humble or of
whatever country, when his personal or property rights have been invaded, even by the highest authority
of the state. The thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more than it can a member of the
Philippine Commission or the Philippine Assembly. Public policy forbids it.
Neither does this principle of non-liability mean that the chief executive may not be personally sued at
all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears
from the discussion heretofore had, particularly that portion which touched the liability of judges and
drew an analogy between such liability and that of the Governor-General, that the latter is liable when
he acts in a case so plainly outside of his power and authority that he can not be said to have exercised
discretion in determining whether or not he had the right to act. What is held here is that he will be
protected from personal liability for damages not only when he acts within his authority, but also when
he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, he is entitled to protection in
determining the question of his authority. If he decide wrongly, he is still protected provided the
question of his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could
not honestly differ over its determination. In such case, he acts, not as Governor-General but as a private
individual, and, as such, must answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz: ". . . Action upon important matters of state delayed; the time and substance of the chief
executive spent in wrangling litigation; disrespect engendered for the person of one of the highest

officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting in a way,
in a distrust as to the integrity of government itself." 105
Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive
immunity. Section 17, Article VII stated: STHAaD
"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in Article XVII of
this Constitution."
In his second Vicente G. Sinco Professional Chair Lecture entitled, "Presidential Immunity And All The
King's Men: The Law Of Privilege As A Defense To Actions For Damages," 106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacifico Agabin, brightlined the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:
"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield the President not only from civil claims but
also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even
acts of the President outside the scope of official duties. And third, we broadened its coverage so as to
include not only the President but also other persons, be they government officials or private
individuals, who acted upon orders of the President. It can be said that at that point most of us were
suffering from AIDS (or absolute immunity defense syndrome)."
The Opposition in the then Batasang Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by then Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong." 107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas, viz.: 108
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out this second sentence, at the very least, of the original provision on immunity from suit under
the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first
sentence that the President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigations, as the
President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that
during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution
was to make that explicit and to add other things.

206

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.
I thank the Commissioner for the clarification."
We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that
he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings.
The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the
events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate
Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." 109 Since the
Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first
be impeached and then convicted before he can be prosecuted. The plea if granted, would put a
perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place
him in a better situation than a non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when impeachment proceedings have become moot due to
the resignation of the President, the proper criminal and civil cases may already be filed against him,
viz: 110

"xxx xxx xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgment of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation
would render the case moot and academic. However, as the provision says, the criminal and civil aspects
of it may continue in the ordinary courts."
This is in accord with our ruling in In Re: Saturnino Bermudez 111 that "incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure" but
not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner
has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition
sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the
impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan 112 and related cases
113 are inapropos for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft
and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the
death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot
cite any decision of this Court licensing the President to commit criminal acts and wrapping him with
post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from
liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of
the State and the officer who acts illegally is not acting as such but stands in the same footing as any
other trespasser. 114
Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a

right. In the 1974 case of US v. Nixon, 115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids and
advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct
justice and other offenses which were committed in a burglary of the Democratic National Headquarters
in Washington's Watergate Hotel during the 1972 presidential campaign. President Nixon himself was
named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground,
among others, that the President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable to judicial proceedings. The
claim was rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege
as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald, 116 the US Supreme Court
further held that the immunity of the President from civil damages covers only "official acts." Recently,
the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones 117
where it held that the US President's immunity from suits for money damages arising out of their official
acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in
our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.
118 It declared as a state policy that "(t)he State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption." 119 It ordained that
"(p)ublic officers and employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives."
120 It set the rule that "(t)he right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, laches or estoppel." 121 It maintained the Sandiganbayan as an anti-graft court. 122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"(i)nvestigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient." 123 The Office of the Ombudsman was also given fiscal autonomy. 124 These
constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president
enjoys immunity from suit for criminal acts committed during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set to file the criminal cases in
violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases. 125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat. 126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present
danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases. 127 In People vs. Teehankee, Jr., 128 later reiterated in
the case of Larranaga vs. Court of Appeals, et al., 129 we laid down the doctrine that:

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"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like
all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair
trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to
a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of
effective judicial administration, especially in the criminal field . . . . The press does not simply publish
information about trials but guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible
to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational
criminal cases. The state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts
and fiction of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly protected from
publicity lest they lose their impartiality. . . . Our judges are learned in the law and trained to disregard
off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The
totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity which is incapable of change even by evidence presented during the trial.
Appellant has the burden to prove this actual bias and he has not discharged the burden."

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. 130
and its companion cases, viz.:
"Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.
xxx xxx xxx
The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes,
its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For
sure, few cases can match the high volume and high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated
even today. Commentators still bombard the public with views not too many of which are sober and
sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and
their sympathizers have participated in this media blitz. The possibility of media abuses and their

threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public.
In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates
conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in
England had long been presumptively open, thus giving assurance that the proceedings were conducted
fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on
secret bias or partiality. In addition, the significant community therapeutic value of public trials was
recognized: when a shocking crime occurs, a community reaction of outrage and public protest often
follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing
an outlet for community concern, hostility, and emotion. To work effectively, it is important that
society's criminal process 'satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L
Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be
concluded that a presumption of openness inheres in the very nature of a criminal trial under this
Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a
common core purpose of assuring freedom of communication on matters relating to the functioning of
government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be
read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees;
the First Amendment right to receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom
doors which had long been open to the public at the time the First Amendment was adopted. Moreover,
the right of assembly is also relevant, having been regarded not only as an independent right but also as
a catalyst to augment the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally
and representatives of the media have a right to be present, and where their presence historically has
been thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the public the
right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is
implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of speech and of the press could be
eviscerated.'
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we
held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the publicity that attended
the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners
cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these
are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant
Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a
factor to consider in determining whether they can easily be blinded by the klieg lights of publicity.
Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The length of
time the investigation was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note,

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did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting
from their bombardment of prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more
than hostile headlines to discharge his burden of proof. 131 He needs to show more weighty social
science evidence to successfully prove the impaired capacity of a judge to render a bias free decision.
Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special
panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been
made by the petitioner that the minds of the members of this special panel have already been infected by
bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come
out with its findings and the Court cannot second guess whether its recommendation will be unfavorable
to the petitioner.
The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs." 132
News reports have also been quoted to establish that the respondent Ombudsman has already prejudged
the cases of the petitioner 133 and it is postulated that the prosecutors investigating the petitioner will be
influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news
reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in
light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of
good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt
the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows
to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigating prosecutors
the independence to make their own findings and recommendations albeit they are reviewable by their
superiors. 134 They can be reversed but they can not be compelled to change their recommendations nor
can they be compelled to prosecute cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the
respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the
finding of probable cause against him is the result of bias, he still has the remedy of assailing it before
the proper court. ATICcS
VI
Epilogue
A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage the Office of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be
more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to
prosecute the guilty and the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms." 135 To be sure, the duty of a prosecutor is more
to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce
calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob
whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power
of number for in a democracy, the dogmatism of the majority is not and should never be the definition of
the rule of law. If democracy has proved to be the best form of government, it is because it has respected
the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts,
however offensive they may be, is the key to man's progress from the cave to civilization. Let us not
throw away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.
SO ORDERED.
||| (Estrada v. Desierto, G.R. Nos. 146710-15, 146738, [March 2, 2001])
EN BANC
[G.R. No. L-23127. April 29, 1971.]
FRANCISCA SERRANO DE AGBAYANI, plaintiff-appellee, vs. PHILIPPINE NATIONAL
BANK and THE PROVINCIAL SHERIFF OF PANGASINAN, defendants, PHILIPPINE
NATIONAL BANK, defendant-appellant.
Dionisio E. Moya for plaintiff-appellee.
Ramon B. de los Reyes for defendant-appellant.
SYLLABUS
1. POLITICAL LAW; JUDICIAL REVIEW; EFFECTS OF THE DECLARATION OF
UNCONSTITUTIONALITY; ORTHODOX VIEW; MODIFIED IN CASE AT BAR. The decision
now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order
or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights
or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once
judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new Civil
Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution." It is understandable why it should be
so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms
cannot survive. Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in force and had to be complied with. This is so
as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and
respect. Parties may have acted under it and may have changed their positions. What could be more
fitting than that in a subsequent litigation regard be had to what has been done while such legislative or
executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine
that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judicially is the governmental organ which has the final say on
whether or not a legislative or executive measure is valid, a period of time may have elapsed before it
can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive
the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior
to such adjudication. In the language of an American Supreme Court decision: "The actual existence of
a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various
aspects, with respect to particular relations, individual and corporate, and particular conduct private
and official." (Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 (1940) This
language has been quoted with approval in a resolution in Araneta v. Hill (93 Phil. 1002 (1953) and the

209

decision in Manila Motor Co., Inc. v. Flores, (99 Phil. 738 (1956). An even more recent instance is the
opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co., 21 SCRA 1095.
2. ID., ID.; ID.; PRESCRIPTION PERIOD, TOLLED DURING THE EFFECTIVITY OF
EXECUTIVE ORDER NO. 32. Precisely though because of the judicial recognition that moratorium
was a valid governmental response to the plight of the debtors who were war sufferers, this Court has
made clear its view in a sense of cases impressive in their number and unanimity that during the eightyear period that Executive Order No. 32 and Republic Act No. 312 were in force, prescription did not
run. So it has been held from Day v. Court of First Instance, 94 Phil. 816 decided in 1954, to Republic v.
Hernaez, L-24137, January 30, 1970 handed down only last year. What is deplorable is that as of the
time of the lower court decision on January 27, 1960, a least eight decisions had left no doubt as to the
prescriptive period being tolled in the meanwhile prior to such adjudication of invalidity. Speaking of
the opposite view entertained by the lower court, the present Chief Justice, in Liboro v. Finance and
Mining Investments Corp. has categorized it as having been "explicitly and consistently rejected by this
Court." The error of the lower court in sustain plaintiff's suit is thus manifest. From July 19, 1944, when
her loan matured, to July 13, 1959, when extrajudicial foreclosure proceedings were started by appellant
Bank, the time consumed is six days short of fifteen years. The prescriptive period was tolled, however.
from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when the decision of
Rutter v. Esteban was promulgated, covering eight years, two months and eight days. Obviously then,
when report was had extrajudicially to the foreclosure of the mortgage obligation, there was time to
spare before prescription could be availed of as a defense.
DECISION
FERNANDO, J p:
A correct appreciation of the controlling doctrine as to the effect, if any, to be attached to a statute
subsequently adjudged invalid, is decisive of this appeal from a lower court decision. Plaintiff Francisca
Serrano de Agbayani, now appellee, was able to obtain a favorable judgment in her suit against
defendant, now appellant Philippine National Bank, permanently enjoining the other defendant, the
Provincial Sheriff of Pangasinan, from proceeding with an extrajudicial foreclosure sale of land
belonging to plaintiff mortgaged to appellant Bank to secure a loan declared no longer enforceable, the
prescriptive period having lapsed. There was thus a failure to sustain the defense raised by appellant that
if the moratorium under an Executive Order and later an Act subsequently found unconstitutional were
to be counted in the computation, then the right to foreclose the mortgage was still subsisting. In
arriving at such a conclusion, the lower court manifested a tenacious adherence to the inflexible view
that an unconstitutional act is not a law, creating no rights and imposing no duties, and thus as
inoperative as if it had never been. It was oblivious to the force of the principle adopted by this Court
that while a statute's repugnancy to the fundamental law deprives it of its character as a juridical norm,
its having been operative prior to its being nullified is a fact that is not devoid of legal consequences. As
will hereafter be explained, such a failing of the lower court resulted in an erroneous decision. We find
for appellant Philippine National Bank, and we reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the amount of P450.00 from defendant
Bank dated July 19, 1939, maturing on July 19, 1944, secured by real estate mortgage duly registered
covering property described in T.C.T. No. 11275 of the province of Pangasinan. As of November 27,
1959, the balance due on said loan was in the amount of P1,294.00. As early as July 13 of the same year,
defendant instituted extra-judicial foreclosure proceedings in the office of defendant Provincial Sheriff
of Pangasinan for the recovery of the balance of the loan remaining unpaid. Plaintiff countered with his
suit against both defendants on August 10, 1959, her main allegation being that the mortgage sought to
be foreclosed had long prescribed, fifteen years having elapsed from the date of maturity, July 19, 1944.
She sought and was able to obtain a writ of preliminary injunction against defendant Provincial Sheriff,
which was made permanent in the decision now on appeal. Defendant Bank in its answer prayed for the

dismissal of the suit as even on plaintiff's own theory the defense of prescription would not be available
if the period from March 10, 1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when
the subsequent legislative act 2 extending the period of moratorium was declared invalid, were to be
deducted from the computation of the time during which the bank took no legal steps for the recovery of
the loan. As noted, the lower court did not find such contention persuasive and decided the suit in favor
of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses merit, there being a failure on the part
of the lower court to adhere to the applicable constitutional doctrine as to the effect to be given to a
statute subsequently declared invalid.
1. The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an
executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of
any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the
fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of
paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern. Administrative or executive acts,
orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. 3 It
is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or
executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not however be
sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged
legislative or executive act must have been in force and had to be complied with. This is so as until after
the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties
may have acted under it and may have changed their positions. What could be more fitting than that in a
subsequent litigation regard be had to what has been done while such legislative or executive act was in
operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being
nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely
because the judiciary is the governmental organ which has the final say on whether or not a legislative
or executive measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of
fairness and justice then, if there be no recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: "The actual existence of a statute, prior to such
a determination [of unconstitutionality], is an operative fact and may have consequences which cannot
justly be ignored. The past cannot always he erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in various aspects, - with respect to
particular relations, individual and corporate, and particular conduct, private and official." 4 This
language has been quoted with approval in a resolution in Araneta v. Hill 5 and the decision in Manila
Motor Co., Inc. v. Flores. 6 An even more recent instance is the opinion of Justice Zaldivar speaking for
the Court in Fernandez v. Cuerva and Co. 7
2. Such an approach all the more commends itself whenever police power legislation intended to
promote public welfare but adversely affecting property rights is involved. While subject to be assailed
on due process, equal protection and non-impairment grounds, all that is required to avoid the corrosion
of invalidity is that the rational basis or reasonableness test is satisfied. The legislature on the whole is
not likely to allow an enactment suffering, to paraphrase Cardozo, from the infirmity of outrunning the
bounds of reason and resulting in sheer oppression. It may be of course that if challenged, an adverse
judgment could be the result, as its running counter to the Constitution could still be shown. In the

210

meanwhile though, in the normal course of things, it has been acted upon by the public and accepted as
valid. To ignore such a fact would indeed be the fruitful parent of injustice. Moreover, as its
constitutionality is conditioned on its being fair or reasonable, which in turn is dependent on the actual
situation, never static but subject to change, a measure valid when enacted may subsequently, due to
altered circumstances, be stricken down.
That is precisely what happened in connection with Republic Act No. 342, the moratorium legislation,
which continued Executive Order No. 32, issued by the then President Osmea, suspending the
enforcement of payment of all debts and other monetary obligations payable by war sufferers. So it was
explicitly held in Rutter v. Esteban 8 where such enactment was considered in 1953 "unreasonable and
oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared
null and void and without effect." 9 At the time of the issuance of the above Executive Order in 1945
and of the passage of such Act in 1948, there was a factual justification for the moratorium. The
Philippines was confronted with an emergency of impressive magnitude at the time of her liberation
from the Japanese military forces in 1945. Business was at a standstill. Her economy lay prostrate.
Measures, radical measures, were then devised to tide her over until some semblance of normalcy could
be restored and an improvement in her economy noted. No wonder then that the suspension of
enforcement of payment of the obligations then existing was declared first by executive order and then
by legislation. The Supreme Court was right therefore in rejecting the contention that on its face, the
Moratorium Law was unconstitutional, amounting as it did to the impairment of the obligation of
contracts. Considering the circumstances confronting the legitimate government upon its return to the
Philippines, some such remedial device was needed and badly so. An unyielding insistence then on the
rights to property on the part of the creditors was not likely to meet with judicial sympathy. Time passed
however, and conditions did change.

at least eight decisions had left no doubt as to the prescriptive period being tolled in the meanwhile prior
to such adjudication of invalidity. 13 Speaking of the opposite view entertained by the lower court, the
present Chief Justice, in Liboro v. Finance and Mining Investments Corp. 14 has categorized it as
having been "explicitly and consistently rejected by this Court." 15
The error of the lower court in sustaining plaintiff's suit is thus manifest. From July 19, 1944, when her
loan matured, to July 13, 1959, when extra-judicial foreclosure proceedings were started by appellant
Bank, the time consumed is six days short of fifteen years. The prescriptive period was tolled, however,
from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when the decision of
Rutter v. Esteban was promulgated, covering eight years, two months and eight days. Obviously then,
when resort was had extra-judicially to the foreclosure of the mortgage obligation, there was time to
spare before prescription could be availed of as a defense.
WHEREFORE, the decision of January 27, 1960 is reversed and the suit of plaintiff filed August 10,
1959 dismissed. No costs.
||| (De Agbayani v. PNB, G.R. No. L-23127, [April 29, 1971], 148 PHIL 443-452)

When the legislation was before this Court in 1953, the question before it was its satisfying the rational
basis test, not as of the time of its enactment but as of such date. Clearly, if then it were found
unreasonable, the right to non-impairment of contractual obligations must prevail over the assertion of
community power to remedy an existing evil. The Supreme Court was convinced that such indeed was
the case. As stated in the opinion of Justice Bautista Angelo: "But we should not lose sight of the fact
that these obligations had been pending since 1945 as a result of the issuance of Executive Orders Nos.
25 and 32 and at present their enforcement is still inhibited because of the enactment of Republic Act
No. 342 and would continue to be unenforceable during the eight-year period granted to prewar debtors
to afford them an opportunity to rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years before they could affect a
liquidation of their investment dating as far back as 1941. This period seems to us unreasonable, if not
oppressive. While the purpose of Congress is plausible, and should be commended, the relief accorded
works injustice to creditors who are practically left at the mercy of the debtors. Their hope to effect
collection becomes extremely remote, more so if the credits are unsecured. And the injustice is more
patent when, under the law, the debtor is not even required to pay interest during the operation of the
relief, unlike similar statutes in the United States." 10 The conclusion to which the foregoing
considerations inevitably led was that as of the time of adjudication, it was apparent that Republic Act
No. 342 could not survive the test of validity. Executive Order No. 32 should likewise be nullified. That
before the decision they were not constitutionally infirm was admitted expressly. There is all the more
reason then to yield assent to the now prevailing principle that the existence of a statute or executive
order prior to its being adjudged void is an operative fact to which legal consequences are attached.
3. Precisely though because of the judicial recognition that moratorium was a valid governmental
response to the plight of the debtors who were war sufferers, this Court has made clear its view in a
series of cases impressive in their number and unanimity that during the eight-year period that
Executive Order No. 32 and Republic Act No. 342 were in force, prescription did not run. So it has been
held from Day v. Court of First Instance, 11 decided in 1954, to Republic v. Hernaez, 12 handed down
only last year. What is deplorable is that as of the time of the lower court decision on January 27, 1960,

211

EN BANC

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn statement
filed with the Philippine Overseas Employment Administration (POEA for brevity) charged petitioner
Hortencia Salazar, viz:

[G.R. No. 81510. March 14, 1990.]

"04. T: Ano ba ang dahilan at ikaw ngayon ay narito at nagbibigay ng salaysay.

HORTENCIA SALAZAR, petitioner, vs. HON. TOMAS D. ACHACOSO, in his capacity as

Administrator of the Philippine Overseas Employment Administration, and FERDIE
MARQUEZ, respondents.

S: Upang ireklamo sa dahilan ang akmg PECC Card ay ayaw ibigay sa akin ng dati kong manager.
Horty Salazar 615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap and ginawang panloloko sa iyo ng tao/mga taong inireklamo mo?

Gutierrez & Alo Law Offices for petitioner.

S: Sa bahay ni Horty Salazar.
SYLLABUS
06. T: Paano naman naganap ang pangyayari?
1. CONSTITUTIONAL LAW; WARRANTS OF SEARCH AND ARREST; MAY BE ISSUED ONLY
BY A JUDGE; EXCEPTION. Under the new Constitution, which states: . . . no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized. It is only judges,
and no other, who may issue warrants of arrest and search. The exception is in cases of deportation of
illegal and undesirable aliens, whom the President or the Commissioner of Immigration may order
arrested, following a final order of deportation, for the purpose of deportation.
2. ID.; ID.; SECRETARY OF LABOR; NO LONGER AUTHORIZED TO ISSUE WARRANT. The
Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, the
authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of
the Labor Code, unconstitutional and of no force and effect.
3. ID.; ID.; IDENTIFY CLEARLY THE THINGS TO BE SEIZED. We have held that a warrant must
identify clearly the things to be seized, otherwise, it is null and void, thus: . . .Another factor which
makes the search warrants under consideration constitutionally objectionable is that they are in the
nature of general warrants. . . . In Stanford v. State of Texas, the search warrant which authorized the
search for `books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other
written instruments concerning the Communist Parties of Texas, and the operations of the Community
Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner,
directions to 'seize any evidence in connection with the violation of SDC 13-3703 or otherwise" have
been held too general, and that portion of a search warrant which authorized the seizure of any
"paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes (the
statute dealing with the crime of conspiracy)" was held to be a general warrant, and therefore invalid.
The description of the articles sought to be seized under the search warrants in question cannot be
characterized differently. . . .

S: Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha ang PECC Card ko at sinabing hahanapan ako
ng booking sa Japan. Mag - 9 month's na ako sa Phils. ay hindi pa niya ako napa-alis. So lumipat ako ng
ibang company pero ayaw niyang ibigay and PECC Card ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint was
assigned, sent to the petitioner the following telegram:
"YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTI
ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVE.
MANDALUYONG MM ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU.
FAIL NOT UNDER PENALTY OF LAW."
4. On the same day, having ascertained that the petitioner had no license to operate a recruitment
agency, public respondent Administrator Tomas D. Achacoso issued his challenged CLOSURE AND
SEIZURE ORDER NO. 1205 which reads:
"HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila.
Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022,
I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended
to be used as the means of committing illegal recruitment, it having verified that you have
(1) No valid license or authority from the Department of Labor and Employment to recruit and deploy
workers for overseas employment;

DECISION
SARMIENTO, J p:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure
under Article 38 of the Labor Code, prohibiting illegal recruitment. LibLex

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to
Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing laws.
Done in the City of Manila, this 3rd day of November, 1987."

The facts are as follows:

xxx xxx xxx

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu issued an
office order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as
members of a team tasked to implement Closure and Seizure Order No. 1205. Doing so, the group

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assisted by Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and Ernie
Baluyot of News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.,
Mandaluyong, Metro Manila. There it was found that petitioner was operating Hannalie Dance Studio.
Before entering the place, the team served said Closure and Seizure order on a certain Mrs. Flora
Salazar who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informed the team that
Hannalie Dance Studio was accredited with Moreman Development (Phil.) However, when required to
show credentials, she was unable to produce any. Inside the studio, the team chanced upon twelve talent
performers practicing a dance number and saw about twenty more waiting outside. The team
confiscated assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan and witnessed
by Mrs. Flora Salazar. cdphil
6. On January 28, 1988, petitioner filed with POEA the following letter:
"Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully
request that the personal properties seized at her residence last January 26, 1988 be immediately
returned on the ground that said seizure was contrary to law and against the will of the owner thereof
Among our reasons are the following:
1. Our client has not been given any prior notice or hearing, hence the Closure and Seizure Order No.
1205 dated November 3, 1987 violates "due process of law" guaranteed under Sec. 1, Art. III, of the
Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guarantees right of the
people "to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose."
3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2 policemen) are the
private residence of the Salazar family, and the entry, search as well as the seizure of the personal
properties belonging to our client were without her consent and were done with unreasonable force and
intimidation, together with grave abuse of the color of authority, and constitute robbery and violation of
domicile under Arts. 293 and 128 of the Revised Penal Code.
Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) in all (and which
were already due for shipment to Japan) are returned within twenty-four (24) hours from your receipt
hereof, we shall feel free to take all legal action, civil and criminal, to protect our client's interests.
We trust that you will give due attention to these important matters."
7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition; on
even date, POEA filed a criminal complaint against her with the Pasig Provincial Fiscal, docketed as IS88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred
are already faith accompli, thereby making prohibition too late, we consider the petition as one for
certiorari in view of the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration
(or the Secretary of Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the
Labor Code? It is also an issue squarely raised by the petitioner for the Court's resolution.

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or things
to be seized. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case was declared that mayors
may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been described is the state of the law as it
was in September, 1985. The law has since been altered. No longer does the mayor have at this time the
power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated, rendered functus officio by
the 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino
people. Section 2, Article III of the 1987 Constitution pertinently provides that "no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the person or things to be seized." The constitutional
proscription has thereby been manifested that thenceforth, the function of determining probable cause
and issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the phrase, "such other
responsible officer as may be authorized by law" found in the counterpart provision of said 1973
Constitution, who, aside from judges, might conduct preliminary investigations and issue warrants of
arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to exercise,
prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" to
determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a
prosecutor is naturally interested in the success of his case. Although his office "is to see that justice is
done and not necessarily to secure the conviction of the person accused," he stands, invariably, as the
accused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants of
arrest, is to make him both judge and jury in his own right, when he is neither. That makes, to our mind
and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002,
unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by
Presidential Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree
No. 1693, in the exercise of his legislative powers under Amendment No. 6 of the 1973 Constitution.
Under the latter, the then Minister of Labor merely exercised recommendatory powers: prLL
(a) The Minister of Labor or his duly authorized representative shall have the power to recommend the
arrest and detention of any person engaged in illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of
giving more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor
arrest and closure powers:

Under the new Constitution, which states:

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(b) The Minister of Labor and Employment shall have the power to cause the arrest and detention of
such non-licensee or non-holder of authority if after proper investigation it is determined that his
activities constitute a danger to national security and public order or will lead to further exploitation of
job-seekers. The Minister shall order the closure of companies, establishment and entities found to be
engaged in the recruitment of workers for overseas employment, without having been licensed or
authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor
Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized representatives shall have the power
to cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it
is determined that his activities constitute a danger to national security and public order or will lead to
further exploitation of job-seekers. The Minister shall order the search of the office or premises end
seizure of documents, paraphernalia, properties and other implements used in illegal recruitment
activities and the closure of companies, establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without having been licensed or authorized to do so. 8

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly
issued, is clearly in the nature of a general warrant:
Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022,
I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended
to be used as the means of committing illegal recruitment, it having verified that you have
(1) No valid license or authority from the Department of Labor and Employment to recruit and deploy
workers for overseas employment;
(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to
Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing laws. 13
We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void,
thus:

The above has now been etched as Article 38, paragraph (c) of the Labor Code.
xxx xxx xxx
The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight
moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest
warrants. Hence, the authorities must go through the judicial process. To that extent, we declare Article
38, paragraph (c), of the Labor Code, unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a
deportation case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37
of the Immigration Law. We have ruled that in deportation cases, an arrest (of an undesirable alien)
ordered by the President or his duly authorized representatives, in order to carry out a final decision of
deportation is valid. 10 It is valid, however, because of the recognized supremacy of the Executive in
matters involving foreign affairs. We have held: 11
xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 549,
57 L. Ed. 960, 40 Phil. 1122, 1125) That power may be exercised by the Chief Executive "when he
deems such action necessary for the peace and domestic tranquility of the nation." Justice Johnson's
opinion is that when the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express law, deport them".
(Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil 41).
cdll

Another factor which makes the search warrants under consideration constitutionally objectionable is
that they are in the nature of general warrants. The search warrants describe the articles sought to be
seized in this wise:
"1) All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders, dictaphone and the like used an/or connected in
the printing of the 'WE FORUM' newspaper and any and all documents/communications, letters and
facsimile of prints related to the 'WE FORUM' newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives
and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire
Movement and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of the 'WE FORUM' and other subversive
materials and propaganda, more particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

"The right of a country to expel or deport aliens because their continued presence is detrimental to
public welfare is absolute and unqualified" (Tiu Chun Hai and Go Tam vs. Commissioner of
Immigration and the Director of NBI, 104 Phil. 949, 956.) 12
The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the
power to order arrests) can not be made to extend to other cases, like the one at bar. Under the
Constitution, it is the sole domain of the courts.

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking 'Bagong Silang.'"
In Stanford v. State of Texas, the search warrant which authorized the search for `books, records,
pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments
concerning the Communist Parties of Texas, and the operations of the Community Party in Texas," was
declared void by the U.S. Supreme Court for being too general. In like manner, directions to 'seize any
evidence in connection with the violation of SDC 13-3703 or otherwise" have been held too general,
and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be

214

used to violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing with the crime of
conspiracy)" was held to be a general warrant, and therefore invalid. The description of the articles
sought to be seized under the search warrants in question cannot be characterized differently. LLpr
In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English history; the era
of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were
given roving commissions to search where they pleased in order to suppress and destroy the literature of
dissent both Catholic and Puritan." Reference herein to such historical episode would not be relevant for
it is not the policy of our government to suppress any newspaper or publication that speaks with "the
voice of non-conformity" but poses no clear and imminent danger to state security. 14

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President or the
Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose
of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials
seized as a result of the implementation of Search and Seizure Order No. 1205. cdrep
No costs.

For the guidance of the bench and the bar, we reaffirm the following principles:

SO ORDERED.

1. Under Article III, Section 2, of the 1987 Constitution, it is only judges, and no other, who may issue
warrants of arrest and search;

||| (Salazar v. Achacoso, G.R. No. 81510, [March 14, 1990], 262 PHIL 160-171)

215